Crime and Courts Bill [HL]
Lord Goldsmith Excerpts(11 years, 5 months ago)
Lords ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Lord McNally
My Lords, this group consists of three government amendments that, if not technical amendments, are certainly not controversial. Amendment 114 is intended to remove uncommenced elements of Section 67 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 and make a minor consequential amendment to the Criminal Justice Act 2003.
I know that it might seem odd for this House to be considering again a provision that was debated so recently both here and in the other place, but it is right for us to do so. This amendment repeals provisions in the LASPO Act that, if brought into force, would mean that the courts could consider a case where an offender has breached a community order without reasonable excuse and allow the order to continue unchanged.
Having reconsidered their position, the Government do not think that it is appropriate for offenders to breach their community order and not face any sanction at all. We must ensure that both offenders and the public have confidence in community orders and take them seriously. Offenders will not take their order seriously if breaching does not have consequences. If an offender breaches a community order, we believe that a court should be able to take one of the three following actions: make the order more onerous; revoke the order and resentence for the original offence; or impose a fine. The last option allows the order to remain unchanged, while at the same time imposing a penalty for the breach. The courts did not have this power until it was included in the LASPO Act 2012. I am sure noble Lords will be pleased to know that it was brought into force on 3 December.
The Government believe that this revised framework provides the courts with the right options for dealing with failures to comply with community orders. It will still give the courts different options to tailor responses to breaches to individual offenders. However, it will also ensure there is a sanction of some sort for any offender who is found to have breached. Accordingly, on further consideration, we now believe that there is no good case for allowing offenders who fail to comply with court orders without a reasonable excuse to receive no penalty.
Amendment 114 also corrects a technical error in Section 150 of the Criminal Justice Act 2003. This section was amended by the Legal Aid, Sentencing and Punishment of Offenders Act, which prevents a court from making a community sentence where a mandatory minimum sentence for the new aggravated knife possession offences in the LASPO Act apply. The LASPO change inadvertently prevents the court from giving a 16 or 17 year-old a youth rehabilitation order, which is the youth equivalent of the adult community order for these offences. Amendment 114 corrects this technical error so that the new provisions work as they were originally intended to. Without this amendment, were the court to decide to set aside the mandatory minimum, it would not be able to give a youth rehabilitation order and would therefore have no option but to give a lesser penalty such as a referral order or a fine.
Amendments 113H and 113J are of a technical nature. The intention is to allow for the transfer of community orders and suspended sentences to Northern Ireland, where an order containing location monitoring under the new electronic monitoring requirement is made in England or Wales but the offender lives in, or is planning to move to, Northern Ireland. It is already possible to transfer existing orders to Northern Ireland, so this provision merely extends that capability to the new location monitoring provision that we are introducing in the Bill. Although location monitoring is not currently available in Northern Ireland under existing contractual arrangements, this will be addressed in the retendering of the contract in 2013. This provision will therefore enable appropriate cases to be transferred when the operational arrangements are in place in Northern Ireland. The transfer will be possible only where the court is satisfied that the appropriate arrangements are in place. This means that the tag will be capable of being fitted and the offender’s location will then be able to be monitored. If the court is not satisfied that the necessary tracking technology is available, the court in England and Wales will not be able to transfer the order.
Noble Lords will have noticed that the provision covers Northern Ireland but not Scotland. This is because at the moment there is no statutory provision for the imposition of tracking as a requirement in Scotland. If and when the time comes that Scottish courts can impose location monitoring as a requirement, we will bring forward legislation enabling the transfer of orders, including such requirements, from England and Wales to the Scottish jurisdiction. I beg to move.
Lord Goldsmith
My Lords, I rise slightly diffidently to ask a question about Amendment 114. I am not sure that I fully understood what the Minister said, though I am sure it is my fault. At one point I thought he was saying that the effect of Amendment 114 was to take out from LASPO an obligation to deal with breaches and insert instead a power to deal with breaches and give the court the opportunity to make its own mind up, but then I thought I understood him to be saying the opposite, that the purpose of this amendment is to ensure that where there is a breach of a community order the court is obliged to impose some penalty. I would be grateful if he would clarify that.
Perhaps the Minister could also clarify how it comes about that we are asked to amend LASPO quite so quickly and whether or not the passages that would be amended—indeed, removed—by this amendment were debated. I have no recollection as to whether or not they were, but it would be good to know if something that was debated, for example, in this House is now being removed in this way at 9.45 pm on the penultimate day of Report.
Lord McNally
My Lords, the noble and learned Lord is long enough in the tooth to remember other times when Governments have taken a second look at relatively recent legislation.
To clarify, Amendment 114 will remove uncommenced elements of Section 67 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012. The provision being removed would have empowered courts dealing with a breach of a community order to allow the order to continue unchanged. Not commencing the provision means that the court must make the order more onerous, resentence for the original offence or fine the offender for breach. In lay man’s language—which is the only language I can use, because I am a lay man in this—in the Government’s opinion, the LASPO Act left an option that they now wish to change, which is that breaches of the order could have gone unpunished. We do not think that that is a sensible way of getting people to take the orders seriously and therefore this amendment empowers the courts to make the order more onerous, resentence for the original offence or fine the offender for breach.
Lord Goldsmith
My Lords, I want to speak to Amendment 116ZA and to refer to Amendment 116E, which stands in my name in this group. Both amendments touch on a similar point, although possibly from different perspectives. I note that my noble friend Lord Beecham and I have perhaps started in slightly different places on this part of the Bill, although maybe we are moving towards a middle position. As the House knows, I am one of those who has been more in the enthusiastic group who support the introduction of deferred prosecution agreements. I believe that they are capable of assisting enormously, in particular cases, in dealing with the problems with which we are faced in crime.
I am sorry that the Government have such a blinkered approach to where these deferred prosecution agreements can assist. What obviously lies behind my Amendment 116E is at least to enable other offences to be added to the list of those that are covered by deferred prosecution agreements without the need for further primary legislation. I have no illusions as to whether the Government will accept this amendment. I am grateful for the meeting to which my noble friend Lord Beecham has already referred and for the attention paid to what was said by a number of us in that meeting. I am also clear that the Government will not move, which is a shame.
Although my amendment deals with offences, the Minister will recall that not only I but others in this Chamber have been concerned also about the ambit of deferred prosecution agreements. It is not strictly speaking the subject of an amendment tonight but the question of reviewing this includes whether it can be reviewed not only to consider the efficacy of the system as it is being introduced but also whether its ambit is appropriate, both in terms of offences and, I repeat, in terms of individuals.
Perhaps I may say this to the noble Lord and, through him, to his ministerial colleagues and their officials: I believe that the Government are making a big mistake in not seeing the advantage of deferred prosecutions in other cases. In this House previously, in Committee, I referred to the benefits that I have seen, particularly in relation to drug offences. If you go to any Crown Court in the country—certainly, this was the case when I sat regularly there and I believe it is likely still to be the case—you will see case after case to do with drugs. It is either a drug offence, or an offence of petty theft, burglary, mugging or something of that sort to get money for drugs. It is hugely damaging to our society but we do not seem to be that good at finding solutions to it. I believe that the carrot and stick approach, which deferred prosecution agreements provide, is one way to deal with that.
I know that the Minister will not respond positively to that today and I know that he will not respond positively to my amendment. However, as my noble friend Lord Beecham said, I hope that there can be a clear commitment to review the operation. I ask the Minister to accept that that commitment should include looking at not just whether the system is working, as it is about to be enacted, but also whether it could be more broadly based in relation to offences or to individuals. If he cannot give that assurance, I, for one, would support—although this was not my position previously—my noble friend Lord Beecham’s amendment as a way of forcing that review.
Lord Marks of Henley-on-Thames
I shall speak briefly to both amendments. While I support in outline the idea that there should be a review, the amendment in the names of the noble Lords, Lord Beecham and Lord Rosser, does not include a provision for an extension of the schedule. It seems to me that a review should be part of a continuing process. I agree very much with the noble and learned Lord, Lord Goldsmith, that there is considerable potential for deferred prosecution agreements. I would expect a review to come out with a recommendation for extension, rather than for limitation, and certainly for continuation of the system unless it turns out to have been a failure, which is not the expectation that I have.
I also agree with the noble and learned Lord in his amendment. I think it is a shame that the range of offences is confined to financial and economic offences. I entirely understand the Government’s position that, at this stage, this is an exercise in putting a toe into the water in unfamiliar territory, and I accept that it is unfamiliar territory. However, the extension of the offences under paragraph 31 of the schedule is subject to the affirmative resolution procedure. For my part, I do not see a huge distinction between adding other financial and economic offences to the list of offences under that procedure and adding the other offences of which we spoke at the meeting and in the debate in Committee. Health and safety and environmental offences have been mentioned, and drug offences were mentioned by the noble and learned Lord, Lord Goldsmith.
We are in the middle of providing for what the Minister has called a rehabilitation revolution. I regard that as a useful phrase and a useful and beneficial concept. It seems to me that deferred prosecution agreements, with their potential for arrangements to be made to encourage future compliant behaviour, can be seen as part of that overall rehabilitation revolution. I know that my noble friend will not accept these amendments tonight, but I urge him to bear in mind, with those in his department in charge of these things, that a wider view can be taken of these agreements.
Lord Goldsmith
Lord Goldsmith
My Lords, I will speak to all four amendments in this group, which are in my name. Amendments 116A and 116B cover the same grounds. They are really alternatives, and I will explain why. However, the fundamental point is that they deal with the provision in the Bill that the,
“amount of any financial penalty agreed between the prosecutor and”—
the company—let us call it that—
“must be broadly comparable to the fine that a court would have imposed on”—
the company—
“on conviction for the alleged offence following a guilty plea”.
I firmly believe that that is a wrong provision. It removes, first, the incentive for an agreement to be made. It is odd, because the Government put forward the limitations on the deferred prosecution agreement on the pragmatic grounds that it is often difficult to prosecute these offences. Therefore they want to have an alternative system which people suspected guilty of financial or economic crime will be prepared to accept. Well, they will be prepared to accept it if the offer is acceptable. There is another point to which I will come, but this provision says that if you do the deal you can only do it on the basis of the same financial penalty. Bear in mind that we are dealing with companies and commercial organisations which cannot be sent to prison, so it is the financial penalty which matters. It seems, with respect, to make no sense to remove the possibility from an agreement which provides some sort of incentive to make that agreement. To impose a requirement that the penalty must be,
“broadly comparable to the fine that a court would have imposed on … a guilty plea”,
seems, as I have suggested, to be wrong in principle.
However, there is another reason. It was pointed out clearly by the noble Lord, Lord Marks of Henley-on-Thames, in Committee, when he noted that this provision only applies if there is a financial penalty. There are a number of options in the agreement: a financial penalty; compensation; donation of money to charity; disgorgement of profits; implementing a compliance programme; and so on. There is a whole menu, but this provision says that if you have a financial penalty is has got to be the same fine that would have been imposed, broadly speaking.
That seems to lead to an absurd situation. In the discussions that are taking place, the company will say, “We don’t want to pay the full fine that we would have paid. We are prepared to accept our guilt even though we think that we could fight this in court and get off, but we do not want to pay the full penalty”. Then the prosecutor is faced with saying, “Well, either that means no penalty at all, because then I can escape the straitjacket of subsection (4), or you have to pay the full penalty, so there is no deal. So we will be forced to go into court; we may lose the case; it will cost the public a great deal”. It seems to make no sense at all, and the noble Lord, Lord Marks, was quite right to draw attention to that.
It is critical that deferred prosecution agreements work. Of all the amendments necessary to make this work, I suggest that this is one. One needs to remove the straitjacket whereby the penalty has to be the same as the fine that would have been imposed. In promoting that—I shall come to the way to do it—I want to underline that the scheme that the Government have put forward contains safeguards against a wrong agreement. Those safeguards are, first, that the deal has to be approved by the Director of Public Prosecutions, the director of the Serious Fraud Office or another senior prosecutor specifically designated for that role. There is no doubt that a senior prosecutor will have to make the decision. Secondly, the deal has to go through not one but two approvals of the court, the preliminary approval and the final approval. That is the structure of the proposal. I cannot see why this opportunity to make an agreement with some greater incentive should be removed.
There are two ways of achieving this, and that is what my two alternative amendments are designed to do. One is simply to remove sub-paragraph (4) altogether. I would be content with that. It achieves the objective and it leaves it to the discretion of the prosecutor and the court to fix the right elements. If there is some sentencing guideline as to what is appropriate, that is perfectly proper and perhaps it does not need to be contained in the Bill. That way of dealing with the matter meets an objection raised when I spoke to the other amendment in Committee when it was said that by saying “not more than broadly comparable”, one had to work out what the fine would have been, that that was difficult and it was therefore unreasonable to say that it should be “not more than broadly comparable”. I did not say then what I say now: that seems to be an objection to the provision as it stands, in any event. If the Government prefer, I accept that the alternative way of doing this would be not to say that the amount of any financial penalty should be “broadly comparable” to the fine that would have been imposed on a guilty plea, but “not more than” such a fine. It sets a finite level.
I want to make one further point before I briefly deal with the two other amendments in my name, Amendments 116C and 116D. I have gone back to the consultation paper to consider what respondents actually said on this issue because a question arose in our meeting as to whether I had recollected correctly that a majority of respondents had thought that the reduction should not be limited to the one-third reduction that one receives on a guilty plea. On page 28 of the Government’s response to the consultation paper at paragraph 102, it is stated:
“57% of respondents disagreed with the proposed maximum reduction of one third”.
Also, paragraph 105 states:
“We have noted the concerns raised by respondents that the maximum penalty level of one third may not prove to be sufficiently attractive in practice”.
Those are exactly the points that I have raised, and it appears that a majority of respondents took that view. I take some heart from that.
The other two amendments go together. Amendments 116C and 116D are simply intended to provide that in a deferred prosecution agreement there should be an obligation to spell out to the person who accepts it what the consequences may be, so that people know where they stand. There may be other ways of achieving that, but it seems right that the deferred prosecution agreement should, one way or another, make it clear to someone who is signing up to it what the consequences may be. Of course, if the person signing up to the agreement is a great corporation advised by substantial firms of lawyers, they do not need such a provision, but these cases may not be limited to such corporations and people deserve to be told just what they are getting into. I beg to move.
The Lord Speaker (Baroness D'Souza)
My Lords, I should warn your Lordships that if this amendment is agreed to, I cannot call Amendment 116B by reason of pre-emption.
Lord Goldsmith
My Lords, I very much regret to say that they have not been addressed. I am not going to press either amendment, but I want to say something about them because I want the Government to think a little further.
As regards the second set, I am afraid that the Government miss my point altogether. I invite the noble Lord and his officials to consider whether there is a way of ensuring that people who sign up to DPAs know what the consequences may be. I am not going to say anything more about that; it is an obvious point. The point that he made in response does not actually meet it; it meets a different point.
Let me go back to the first point. I detected three reasons why—and I was very disappointed by this—they said that it was inappropriate to accept either of the two amendments that I have put forward. One is the fear that if my amendments were accepted, the penalties would get out of line with what would happen in court. If that is saying any more than we want them to be the same, it is adding nothing to that. The parties will be in a position to know what the court would have imposed and can of course use that as a guidance without there being an obligation to fix at the same level.
Secondly, it said that there needs to be a benchmark. You have a benchmark by knowing what a court would do, and that could be a benchmark you can have in mind when you are negotiating. However, my second amendment would include that benchmark; I do not understand why it is thought otherwise. The real point—the third reason which the noble Lord repeated several times—is that it is thought that it will be a soft option. I really would invite the Government to think again. This is not a soft option because what is being overlooked each time is that the range of things that can be achieved in a DPA are not just the financial penalty. You would not get on a conviction an order for compliance; you would not get on a conviction an order for a monitor; you would not get on a conviction an order to make a payment to charity. You might get compensation for victims, but that would probably not be as well as a huge fine, because the court would take into account the fact that there is a limited financial obligation overall that should be imposed on the defendant. So it is not a soft option, and I invite the Government to get out of that frame of thinking about it and maybe one or two other times today the same point has come about.
I urge the Government to think again because they are about to make DPAs unworkable and fail to achieve the objectives they set. I will withdraw the amendment this evening—I am not saying that I will not bring it back. However, I really would respectfully—I do not normally use that word here, but I mean it all the time—invite the Government to think again and to question their view about this amendment. We will see where we get to by Third Reading.
Crime and Courts Bill [HL]
Lord Goldsmith Excerpts(11 years, 5 months ago)
Lords ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Lord Pannick
My Lords, Amendment 112 is in the names of the noble and learned Lord, Lord Phillips of Worth Matravers, and myself. The noble and learned Lord is abroad today and sends his apologies to the House.
The amendment seeks to give security officers at the United Kingdom Supreme Court the same powers as those available to court security officers in the other courts of England and Wales under Sections 52 to 57 of the Courts Act 2003. Those sections give court security officers statutory powers to search people, to exclude or remove people from court buildings or to restrain them in court buildings, and to seize, retain and dispose of offensive articles in court buildings. The provisions also create a criminal offence of assaulting or obstructing a court security officer.
There is at present a gap in the law because the Courts Act 2003 confers these powers only on staff appointed and then designated as security officers by the Lord Chancellor in relation to those courts where he is responsible for running an efficient and effective service. In the case of the Supreme Court, the Constitutional Reform Act 2005 vests in the president of the court the power to appoint staff, and the chief executive is under a duty to run an efficient and effective service. The powers conferred by the Courts Act are therefore not at present available to Supreme Court security officers.
Although, of course, Supreme Court security officers would hope never to have to use such powers, it is necessary for them, and for the judges, lawyers and members of the public they are protecting, to know that they have these vital powers at their disposal as security officers should the need arise. Unhappily, as we all know, there have been cases of such powers being needed in courts around the country.
I am sorry that your Lordships do not today have the advantage of hearing from the noble and learned Lord, Lord Phillips, the immediate past president of the Supreme Court, but I hope I have said enough to persuade noble Lords, and, in particular, the Minister that this amendment is necessary. I beg to move.
Lord Goldsmith
My Lords, I support this amendment. I understand that the Government may be in a position to say something favourable about it, so there is no need to say anything further, other than that the amendment may anticipate a little bit the debate that may take place on the next amendment about the importance of recognising the Supreme Court as an independent court no longer dependent on the Lord Chancellor.
Lord Carswell
My Lords, I support this amendment. For most of my 50 years in courts, this function was carried out by police officers who had the authority and the presence to be able to keep order. At times in my rather coloured career, that was necessary. At one time, we received intelligence that a gun was being smuggled into court to shoot either a witness or me or both of us. Happily, it did not arrive. The police presence was phased out, as it has been in other parts of the United Kingdom, and it has been necessary to appoint security officers. In my experience, they have never had to use these powers. They are needed because a lot more people attend the Supreme Court than used to attend the Appellate Committee upstairs or the Privy Council hearings. I support the amendment as one that it would be wise to have.
Lord Goldsmith
My Lords, I, too, support this amendment. The noble and learned Lord, Lord Mayhew of Twysden, has underlined what is critical on this amendment, which I very much hope the Government will consider. It is right that they will be considering this amendment between now and Third Reading.
There are two points. One is the practicality of the arrangements which the amendment proposes: they cannot be doubted. Arrangements for the appointment of the chief executive which include the president of our Supreme Court and the arrangements provided by the Civil Service rules seems to me undoubtedly to be a very proper way of proceeding. One cannot doubt that it will be effective. Certainly, the ad hoc way that the present chief executive was appointed was very successful. I had the privilege to have Miss Jenny Rowe working in my office for some time while I was Attorney-General; they could not have hoped for a better first chief executive.
So there can be no objection in principle by the Government to this proposal; and there is every reason in principle why they should want to see this amendment accepted. It is this worrying question of perception—is the Supreme Court really independent? I recall, in one of your Lordships’ committee rooms a long time ago, explaining to a group of Argentinian politicians, I think, how it came about that a decision had been made in relation to General Pinochet by the Judicial Committee of your Lordships’ House. I explained that the committee was entirely independent and that it was called a Judicial Committee, of professional judges, appointed to that role, who had no political affiliation. They nodded wisely and at the end of it all and said, “So why did the Government let it happen?”.
And that is the problem. If we have these apparent connections between Parliament, judges, the Lord Chancellor who is a serving Minister and now is really only a political Minister, and the court, people will think, “Ah, well, there must be some string-pulling going on”. We must remove all of those suggestions, and therefore I strongly support this amendment. I understand that it will not be moved to a vote this evening, but I very much hope that it will not be necessary to move it to a vote on a future occasion, because the Government will accept it.
Lord Bach
My Lords, in bringing up the rear, as it were, on this point, I will be very brief. I was the junior Minister with some responsibility for the Supreme Court while the building was being refurbished and finished. It was exciting to see noble and learned Lords in their hard hats going around the building as it was being refurbished. It has developed into an extraordinarily effective court which is a great credit to all those involved in it and is now a natural part of our constitutional settlement. I was also a Minister when the Supreme Court was actually opened. That, too, was an exciting time. I have a lasting interest in how the Supreme Court functions. I strongly support the amendment moved by the noble Lord, Lord Pannick, as it seems to me to go to an issue of independence. The independence of that court is of supreme importance, if I may use the expression. It is very important that the general public and the world outside understand that that court is at the very top of the British judicial system and is independent of the Executive in every way. That is why I support the amendment.
Civil Legal Aid (Merits Criteria) Regulations 2012
Lord Goldsmith Excerpts(11 years, 5 months ago)
Lords ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Lord Woolf
My Lords, I been trying to limber up, and I hope that I am now able to follow what has been said by my noble friend Lord Pannick and my noble and learned friend Lord Mackay of Clashfern. I agree with every word that they said with regard to the amendment to the Civil Legal Aid (Merits Criteria) Regulations, which are the subject of the regret Motion.
In order to understand the context, it is necessary to know that judicial review is, of course, subject to principles which have been judge-made. Judicial review, in the form that it is now, is a judicial invention of which we are extremely proud. We are proud of it because the object of the exercise is to ensure, in particular in relation to public law proceedings, that the appropriate procedure is adopted, having regard to the issues raised.
At one time, it was thought—again, by decision of the House of Lords in the well known case of O’Reilly v Mackman, that it was always necessary to use judicial review in public law proceedings. It was then found in practice that that led to satellite litigation over whether the right procedure had been used or the wrong procedure. The courts sought to produce watertight compartments. Fortunately, that was only a temporary stage in the development of judicial review. The next step was to adopt a much more sensible and realistic approach, which involved proceedings being dealt with in the most sensible and reasonable way. Although the phrase that judicial review should be used only where there was no alternative remedy was retained as a simple method to identify one of the principles, the law had developed beyond that. It was made clear by authority after authority that that was subject to the requirement that it should always be reasonable to adopt the procedure which was proposed: judicial review.
Regulation 53(b) contains the statement that is in accord with the general principle of exhausting alternative procedures, but does not refer to the fact that that is not a rigid limitation, but reflects the nature of the procedure, which requires the court to adopt a reasonable course in considering the matter. As has been pointed out by both my noble and learned friend, Lord Mackay, and my noble friend Lord Pannick, that approach of the courts is almost impossible to adopt as a matter of interpretation because of the language of Regulation 39(d). An additional reason to those which have been given for accepting my noble friend Lord Pannick’s Motion and amending Regulation 53(b) is that if that is not done, the procedures in the courts and the procedure for granting legal aid will be out of sync; they will be in conflict. That cannot be a sensible position. Litigants will be forced not to do the reasonable thing, which is what the Civil Procedure Rules require, because they will not have legal aid if they do that, but to adopt an unreasonable course and bring proceedings by judicial review and then get legal aid. That cannot be a sensible course.
I hope the Minister, having heard the argument before the House, will accept the invitation which has been made to consider the matter again. I would be very happy to adopt the amendment suggested by the noble and learned Lord, Lord Mackay, but would, perhaps, suggest that if it is thought preferable to amend Regulation 53(b), what was intended, I believe—or what, at any rate, it should state—could be achieved by inserting into paragraph (b), “the individual exhausted all administrative appeals and other alternative procedures which it would be reasonable for him to adopt to challenge the act, omission or other matter before bringing a public law claim”.
I should have said that my noble and learned friend Lady Butler-Sloss intended to speak and asked me to indicate that she supports the arguments advanced by the noble Lord, Lord Pannick, and those which I have just advanced.
Lord Goldsmith
I want briefly to support both amendments. So far as the amendment moved by the noble Lord, Lord Pannick, is concerned, it is not necessary to say very much after a former Lord Chancellor and a former Lord Chief Justice have both criticised the order as it stands because of the way it operates in different ways. I can summarise my view in relation to it very briefly. This order already recognises that there may be “reasonable” and “not reasonable” alternative procedures. It does that in Regulation 39. However, if one then reads Regulation 53(b), it is very clear that the word “all” must be read as meaning “all”. Therefore, if one expands the meaning, what is being said as it stands is that there will not be legal aid unless the individual has exhausted all reasonable and unreasonable alternative procedures. As soon as one poses the question that way, it becomes absolutely plain that it must be wrong to impose that obligation. I do not think it is necessary to say anything more than that to summarise why the noble Lord, Lord Pannick, and the noble and learned Lords, Lord Mackay of Clashfern and Lord Woolf, are absolutely right.
Let me turn to my reasons for supporting my noble friend Lord Bach in his amendment. I recall very well the clear and powerful way in which the noble Baroness, Lady Doocey, moved the amendments which led to this particular issue. They were strong and supported by a majority of this House. I have read the debate—though I did not listen, as my noble friend Lord Bach did, to the debate itself—which took place in the other place. It seems clear to me that what was being said was that a way would be found to enable legal aid to be provided in the first tier where there were points of law. The concern expressed by the Government was that they did not want that to be a point of law just because it was so stated by the claimant or the claimant’s lawyer. That is clear in column 266. However, the Government have not ended up with that at all. They have ended up with something which appears—if my understanding of the way the procedure works is right, and it follows that of my noble friend Lord Bach—to mean that legal aid does not come into the picture until after the event. That may be appropriate in certain other circumstances, but not here.
What one needs in these circumstances is the ability to identify a point of law which will be relevant and necessary for a particular applicant—particularly a claimant of the sort to which the noble Baroness, Lady Doocey, referred—to be able to put that point of law before the tribunal. I fully endorse her point that most claimants do not recognise a point of law when they see it. I suppose that as a practising and paid lawyer, I am quite pleased, on the whole, that that is the case, although I do not actually practise in this area. The point is this, however, and I ask the Minister to answer this question: why could the way the Government limit this not be by the chairman of the tribunal identifying the point and certifying it at the outset rather than waiting until after the event?
There is one point which connects these two amendments, and it is what drives me to want to persuade the House to support them. In LASPO, we were faced with changes which, for many of us, were very difficult to accept. The Government put them forward on the basis of economic necessity. However, there was a strong belief that there were cases where justice required that there should still be some opportunity for legal advice to be taken and used. In these particular cases—public law and cases involving claimants with disabilities, for example—the Government are failing to give effect even to that limited, modest exception that they were prepared to allow. I very much hope that the Government will think again in the light of this debate.
Lord Phillips of Sudbury
In the light of what I am going on to say to my noble friend Lord McNally, I would first like to say that the whole House well understands the exigency that led to the LASPO Bill. However, as my noble friend Lady Doocey forcefully pointed out, and it cannot be repeated enough, in the realm of social welfare law, there is a singular obligation on us as parliamentarians to will the means of accessing those benefits. Unless we do that, everything that Parliament does is a charade or a sham; because it is cynical on our part not to give the people most in need in our blessed country—the poor, those lacking in self-confidence, those without a scintilla of understanding of the law and those who can scarcely read a Bill and understand it—the real opportunity to access the benefits we are proud to bestow on them. It puts this realm of public expenditure into a special bracket. There are very few areas of expenditure, I suggest, that really come within that narrow purview.
It was interesting to hear the noble and learned Lord, Lord Goldsmith, talking about lawyers looking forward to these rather nuggety issues in social welfare—it was a joke of course—but the reality is that no lawyer goes into the realm of social welfare law to line his or her pockets. I can tell the House that only the most socially minded lawyers subject themselves to practising in this field.
I hope my noble friend Lord McNally will accept my next point. In all the fields of law, there is nowhere more complex than the forest of social welfare legislation. It runs to hundreds and thousands of pages. It is utterly futile to pretend that the ordinary bloke can begin to put together the grounds for going to the director to ask for support to launch an appeal if he or she has got to understand the legal background and legal prospects, because that is way beyond the capacity of all but a very small number.
My final point is this. When the noble and learned Lord, Lord Mackay of Clashfern, was five minutes into his speech, I wondered whether he had, by mistake, picked up my notes. Every single word he said about the clash between Regulations 39(d) and 53(b) was absolutely the same as what I was going to say. The only thing I would add to it—and this is addressed to my noble friend Lord McNally—is that, as the noble and learned Lord, Lord Mackay, made clear, Regulation 39(d) is expressly imported into Regulation 53, but the language in Regulation 39(d) and Regulation 53(b) is not consistent.
That raises further problems. If things proceed as they are, for example, it is unclear what is meant by the word “unavailable” in Regulation 53(b). It is also not apparent to me how to construe the words in Regulation 53(a),
“appears to be susceptible to challenge”,
with the word in the following subsection (b), “procedures”, which are available to challenge. The refinements in the language and, I believe, the confusion are such as to render this part of the regulations not fit for purpose. I very much hope that my noble friend will be able to give the House an assurance at the end of this debate that there will be amendments to the regulations hot on the heels of the passage of the same.
Crime and Courts Bill [HL]
Lord Goldsmith Excerpts(11 years, 6 months ago)
Lords ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Lord Marks of Henley-on-Thames
My Lords, my noble friend is, as always, entirely on the ball. My amendment is wrong in exactly the way that he mentioned. It should be “or an individual” rather than,
“but may not be an individual”.
So the words that ought to go are, “but may not be”, to be replaced by the word, “or”. For that, I apologise, and I hope that I will be allowed to alter my amendment accordingly. I am not proposing to press it in any event, but we can bring it back on Report if necessary, in a better form.
Lord Goldsmith
My Lords, I will speak to Amendment 44 standing in my name, but I want to speak to Amendment 23 as well. Before I do that, and so that I do not have to repeat this on later groupings, I want to repeat the declaration of interest that I made on 30 October at col. 575. I also want to repeat my belief that this is a very useful addition to what the noble Lord, Lord Marks, has described as the armoury for prosecutors and for law enforcement agents. I think that that is absolutely right. On 30 October, I explained how I had been thinking about this when I was in office and, indeed, I introduced at the other end of the scale of offending something that was equivalent: conditional cautions. I believe that this is worth while and I think that the former Solicitor-General, Sir Edward Garnier, deserves credit for having pushed this forward. I had the benefit of talking to him about this before these amendments came forward into this Bill. So I do support them in principle. The few amendments that I have put down are designed to try to make it as workable as possible, given that the principle is there—others may take a different view about the principle—and to make it as useful as possible.
There are some technical amendments but also one or two that relate to the scope of DPAs. I want to underline the fact that I am very grateful to the noble Lord, Lord Marks of Henley-on-Thames, who has made this point. The important issue about a DPA is that it is not just punishment. It can become punishment, but it is about changing behaviour and about compliance. It is a carrot and stick approach.
On the point raised by Amendment 23 about whether this should be capable of being extended to individuals, I repeat what I told the Committee on the previous occasion, that it was actually in the context of individuals that I first saw the benefit of arrangements of this sort. The noble Lord, Lord Marks, has referred to drug offences, and he is quite right. I saw in operation in the United States deferred prosecution agreements being used as a powerful tool to change the behaviour of people who were drug offenders and who seemed incapable of holding down a job and therefore living a life beneficial to themselves, their family and the general public. This was achieved by the combination of a strong statement that if they did not comply in particular ways—taking drug tests regularly, staying clean, following the advice of probation officers or the equivalent—they would suffer serious imprisonment, and the inducement that if they did comply, not only would they not go to prison but they would not have a conviction either. That could be very important to them in terms of getting jobs in the future. On more than one occasion, I watched judges who were speaking on a very direct basis to offenders, reminding them of their obligations and saying, “This is what you have got to go through. This is how you have to comply if you want to get the benefit of this arrangement”. So I think that this is potentially very valuable for individuals, and I ask the Government to think again.
The noble Lord, Lord Phillips of Sudbury, is of course right about the technical issues on the amendment, but I think that the purpose behind it is very clear and, if the principle were accepted, I am sure that the Government would sort out the precise wording to make it work. I do not think that the noble Lord can change the amendment while on his feet.
In the same context, I turn to Amendment 44 in my name.
Lord Phillips of Sudbury
I am most grateful to the noble and learned Lord for giving way. Does he not have a residual concern that if one allows individuals into this plea-bargaining regime it could give rise to the sort of scandal that my noble friend Lord Marks referred to of rich, powerful and well lawyered individuals escaping the opprobrium of prosecution and appearance in court that might otherwise be the way forward?
Lord Goldsmith
I am not concerned about that for this reason. There are two very powerful safeguards in the Bill that should prevent that. First, the DPA has to be agreed by a prosecutor and, as the debate on the previous amendment demonstrated, not just any old prosecutor but either the Director of Public Prosecutions or the director of the Serious Fraud Office—or, possibly, a person designated by the Secretary of State. I leave aside the locum tenens that might come in; the Minister will tell us at some point how likely that will be. First, the prosecutor has to decide whether it is appropriate. Having spent, as the Committee will know, a lot of time with prosecutors when I was in office, I had a high regard for their understanding of what the public interest and public reaction is. They know when people need to go to prison, if they are convicted, and they know when it is appropriate for them not to do so. We can rely a great deal on them to decide which cases are appropriate and which are not.
There is then a second safeguard. Under the Bill as it stands, it has to go to court twice, and the court has to be satisfied that it is appropriate and proportionate for such a step to be taken. Those safeguards mean that one can be much more relaxed about the risks to which the noble Lord, Lord Phillips of Sudbury, refers. Of course, I would entirely agree with him that if we had a situation in which the system operated only to the benefit of the rich it would be wholly unsatisfactory. That is one reason why I think that extending the ability of DPAs so that they cover the sort of offence that I have referred to and individuals would meet part of that concern. If anything, I am worried that by limiting this to economic crimes for companies and partnerships one sends the very message that the noble Lord, Lord Phillips of Sudbury, does not want to be sent. I invite the Government to think very hard about that.
Those are the two safeguards. My personal preference would be not to add any other barriers. I would not add the barrier of the offence being likely to carry a sentence of imprisonment. As the noble Lord, Lord Marks, recognised, if this was extended to cover the sort of case with which I have been concerned it would rule those cases out. I would leave it to the good sense, judgment and sense of public interest of the prosecutor and the court to limit the cases. For the same reason, I would leave the ambit of cases that could be covered open. I would not try to cherry pick through the statute book to find other offences that might be appropriate. I would leave that to the prosecutor and then to the court to say whether it was appropriate to use it for this sort of environmental offence or that sort of health and safety offence. I predict that fairly soon we will have a code giving guidance, and no doubt there will be debates in this House and in other places from time to time as well, and we will see the sort of offences that are appropriate. It is a very useful tool. Other dispositions are not normally limited in this way to particular offences, individuals or specified periods in prison. When I move my amendment, I will invite the Government to consider those points very carefully.
Lord Beecham
My Lords, at Second Reading I expressed misgivings about the introduction of this new concept which were shared by other Members of your Lordships’ House. However, it is clear that the proposal will go ahead. It is certainly possible for us to live with that and, indeed, to seek to improve the legislation on the way.
I listened with great care to the reference of my noble and learned friend Lord Goldsmith to the desirability of extending the DPA process to individuals. However, I am still not quite persuaded about that. I certainly would like to see how the original intentions of the Bill are carried out and what effect they have on what I take to be the basic approach of the Government, whose rationale is that in serious cases, which take an inordinate amount of time and cost an inordinate amount of money to pursue, adopting this measure might achieve a swifter resolution of the problem and, as the noble and learned Lord rightly reminded us, help to pursue the desirable objective of changing behaviour. One particularly looks to that approach being applied in the corporate field. Only today we have seen across the pages of the Guardian an apparent example of the kind of corporate misconduct that could well lead to a massive investigation. One might think that that is an ideal case for the application of this new principle. However, the new principle departs from the traditions of our jurisprudence—as do other things that we shall discuss shortly, but not in connection with this Bill—and is not something to be embarked on lightly. In particular, we need to continue to bear in mind the state of public opinion as it might develop.
I quite take the point that it is not necessary or desirable to confine the scope of this new procedure to economic and financial crime, although I suspect that that is what has triggered it. I am particularly attracted by the references of the noble Lord, Lord Marks, to environmental issues. I think of some of the cases that we have debated in other contexts that involved damage to the environment. Those cases can also be formidably expensive and, almost by definition, difficult to pursue. The noble and learned Lord, Lord Goldsmith, is right. We cannot list every conceivable item. There has to be an element of discretion. It would be sensible for this matter, and its extension, to be the subject of orders and therefore subject to parliamentary approval. I agree with the noble and learned Lord that Amendment 35 in the name of the noble Lord, Lord Marks, probably goes too far.
I want to touch briefly on Amendment 48 in my name which seeks to establish a sunset clause. This is one of three amendments which are partly designed to reassure the public that this measure is not undertaken lightly by the Government and Parliament and that, novel as it is and potentially almost offensive as it could be to some people’s sense of justice, it will be subject to very careful review which is more extensive than the post-legislative scrutiny now available. My amendment would compel a proper parliamentary review of the whole issue if, in the light of experience, it is thought appropriate to renew the provisions. I suggest a five-year period because by definition many of these cases take a long time and it will take time to see how the new system beds down.
The Minister was not oversympathetic to that suggestion on the previous occasion we discussed this matter. However, I hope that it will be given consideration because we cannot lightly embark on this massive change, with the implication that people—corporations rather than individuals—can buy their way out of difficulty. I will return to that thought in relation to other amendments. I hope that the Government will look sympathetically at some of the points that have been made, notably about the extension beyond simply economic and financial crime, and in particular at the possibility of a sunset clause as proposed in my amendment.
Lord Goldsmith
The noble Lord referred to someone buying themselves out of trouble, or whatever it may be. It is the same sort of idea that the noble Lord, Lord Phillips of Sudbury, raised. Would the noble Lord agree that as well as a financial penalty, a DPA could well provide an obligation to comply in particular ways in future? That is not the same thing as buying your way out of trouble. It is accepting a form of conduct in future that hopefully would be beneficial to the public and everyone else and is not just a matter of pounds in your back pocket.
Lord Beecham
I am talking about public perception, which might well be less grounded in those more fundamental objectives than we might give it credit for when debating it in this environment, dominated as it is—looking around the Chamber—by lawyers. We have to carry the public with us. The noble Earl, Lord Attlee, is aghast: unfortunately for the legal profession, perhaps, the lawyer gene apparently did not pass from his grandfather. We have to take public perception on board and it is in that sense that I use the term.
Lord Goldsmith
More than once in this debate it has been said that this is an entirely novel approach. I invite the noble Lord to consider the fact that we already have deferred sentences, under which judges say, “If you do certain things”—and they are supposed to say what they are—“over the next three or six months, I will take a different course”. We have suspended sentences. I have already referred to the fact that we have conditional cautions. I challenge the proposition that the Government’s proposal is so novel, and invite the noble Lord and his office to consider that.
Lord Phillips of Sudbury
That applies in a case that has been tried in open court and a conviction has been made. It is vastly different from the plea-bargain situation where there is no open-court hearing, no obloquy and no public shame.
Lord Marks of Henley-on-Thames
My Lords, I shall speak to Amendments 24, 25, 26 and 27. That suite of amendments has one purpose which is to make a financial penalty compulsory as a requirement of a DPA.
I suggest that there is an anomaly in the Bill as drafted. There is no compulsion to agree a financial penalty. It is one of a series of optional requirements. However, if a DPA contains a financial penalty, that penalty has to be broadly comparable to the fine that a court would impose on a plea of guilty. Therefore, the DPA has to have either no financial penalty at all or a full financial penalty comparable to the penalty that would be imposed by a court. The reason why I suggest that a financial penalty should be compulsory is to maintain public confidence in the new system and to prevent DPAs being seen as a soft option. That is particularly important if they are to be used only for economic and financial crime by corporations rather than more widely. At the moment, if a DPA can be agreed between an offender and a prosecutor without being subjected to the penalty that a court would impose, the innovation runs the risk of being tainted by the allegation that it amounts to no more than plea bargaining, the sort of suggestion made by my noble friend Lord Phillips of Sudbury.
I entirely accept that there might have to be an exception allowed for cases of genuine inability to pay, either at the agreement stage or at the stage when a breach or possible variation is considered under paragraphs 9 and 10, or at both stages. Subject to that qualification, I suggest that a financial penalty comparable to a court fine in lieu of prosecution should be at the heart of the new arrangements. I beg to move.
Lord Goldsmith
My Lords, I will make some observations about the noble Lord’s amendments in this group. I shall speak also to Amendments 28 and 29 in my name. It is worth reminding ourselves what the requirements of a DPA may be, as set out in paragraph 5(3). We have spoken as if the only requirement is likely to be a financial penalty. We talked about paying the price and buying one’s way out of trouble. However, a number of requirements may be included, not just the payment of a financial penalty. The words “financial penalty” appear in paragraph 5(3)(a). Paragraph 5(3)(b) refers to a requirement,
“to compensate victims of the alleged offence”.
Paragraph 5(3)(c) refers to a requirement,
“to donate money to a charity or other third party”.
Paragraph 5(3)(d) refers to a requirement,
“to disgorge any profits made by P from the alleged offence”—
no doubt to the person from whom they have been made, not to the prosecutor.
Paragraph 5(3)(e) refers to a requirement,
“to implement a compliance programme or make changes to an existing compliance programme relating to P’s policies or to the training of P’s employees or both”.
I wish to underline that that can be a very powerful tool for changing behaviour, but also an onerous tool. Frequently in cases where such a system exists, a monitor is required. The company then has to pay for an individual—the noble and learned Lord, Lord Woolf, was such a person—who will have full access to what it is doing and whose job it will be, from inside, to see that it is complying with the programme. That can be a very powerful tool for making sure that it changes its behaviour—but, as I said, also an onerous one.
Paragraph 5(3)(f) refers to a requirement,
“to co-operate in any investigation related to the alleged offence”,
and paragraph 5(3)(g) to a requirement,
“to pay any reasonable costs”.
I invite the Government to reconsider even their proposal, whether or not they accept the amendment of the noble Lord, Lord Marks. Possibly this is one of the more important amendments being considered tonight. I looked back at the Government’s response to the consultation on this offence. I noted from page 28 of the paper that more than half the respondents to the consultation did not agree that there should be a fixed minimum payment for a financial penalty. I wish to understand why, given that the majority of respondents took a different view, the Government have committed to this.
I am concerned about several things. First, if we impose this restriction, the DPA may be used in fewer cases, because it will become unattractive to agree to it. I recall that in a previous debate, in answer to a question from me, the noble Lord, Lord McNally, confirmed that the Government saw DPAs being used even in cases where the defendant did not admit guilt. In those circumstances, it becomes surreal to start talking about the financial penalty that would have been imposed on a defendant if they had pleaded guilty when they have not.
Secondly, the cost of the compliance programme—in terms not just of money but of obligation—can be sufficiently significant that it justifies saying, “No, you do not have to pay the same financial penalty”. I will also ask a question about financial penalties. That is why I read out the list. “Financial penalty” is only one requirement on it. I fear that by imposing this obligation, we may create a distorted view. For example, somebody may say: “What about the victims?” The answer may be: “I am afraid that I cannot afford to compensate them because you are making me pay a financial penalty which is commensurate with what I would have been fined, so there is no more money, or at least I am not giving you any more”. That is quite contrary to the principle in the criminal law that where financial measures are made, you treat the fine as the second thing, and if there is money for compensation, you try to get that paid first. I am concerned that this will have a counterintuitive and unsatisfactory effect.
I would avoid this sort of perverse incentive. I would avoid putting on the straitjacket. Of course I take the point about public confidence—although the more in this debate we invite the public not to have confidence, perhaps the more they will not have confidence. Perhaps we should start looking at this in a different way. My answer to this—as it was to the previous amendment—is that there is a double lock on a DPA in the form of the most senior prosecutors and the court. That is sufficient to ensure that what comes out of the DPA is satisfactory. I therefore do not support the amendment of the noble Lord, Lord Marks. My Amendment 28 is designed to have the effect that the financial penalty should not be more than the fine would have been, which is obviously perfectly reasonable.
Amendment 29 deals with a somewhat different but equally important point. It seeks to change the provision in sub-paragraph (5) that a,
“DPA may include a term setting out the consequences of a failure by P to comply with any of its terms”,
and convert it to an obligation not a permission. This is on the basis that the DPA should state what will happen to you if you do not meet its terms—that is what this is all about—in the interests of both the public and the person who is on the receiving end of the DPA. It is an amendment of a different order but I invite the Government to consider it.
The Minister of State, Ministry of Justice (Lord McNally)
Dear, dear, dear. I noticed that my noble friend Lord Ahmad at one point referred to the noble and learned Lord, Lord Goldsmith, as his noble and learned friend. In some ways, both Front Benches are grateful for the noble and learned Lord’s interventions and draw on his experience in this area. In that spirit, I shall take another look at both of his amendments and take advice on them.
Paragraph 5 of Schedule 17 sets out both mandatory elements that every deferred prosecution agreement must include—namely, an agreed statement of facts and an expiry date—and a number of optional elements set out as a non-exhaustive list of potential terms.
As my noble friend Lord Marks has explained, Amendments 24 to 27 would require a financial penalty to be agreed and imposed in every case; whereas, under the Government’s proposals, that is a matter to be agreed by the parties depending on the particular circumstances. The Government have taken the view that, for the purposes of this approach to dealing with alleged criminal wrongdoing by organisations, there must be flexibility to deal with each case individually. As such, our intention has been, as far as possible, to limit the mandatory elements of a deferred prosecution agreement. I defer to the noble and learned Lord, Lord Goldsmith, on whether it is a wholly new approach. As he says, there are at least some areas of our law that are pathfinders for this. However, I think that it is a new approach to economic crime.
It is important to remember that this is a voluntary process and that the outcome will be an agreement between the prosecutor and an organisation, as distinct from court-imposed sanctions. It is essential, therefore, that the parties are able to negotiate terms in an individual case that are tailored to the particular type and extent of the alleged wrongdoing, as well as to the wider circumstances of the case and the organisation, including its financial circumstances. Ultimately, the package of terms will be the subject of judicial scrutiny and the judge will consider whether, taken as a whole, they are fair, reasonable and proportionate. If the judge is not of that view, he or she will not approve the agreement.
A financial penalty is just one of the potential terms of a deferred prosecution agreement, and is one of five of the suggested terms which are monetary in nature. While the illustrative terms in paragraph 5 are not listed in order of priority, it is the view of the Government that any terms of an agreement relating to compensating or making reparation to victims should take priority over the other monetary terms, including any financial penalty. Not all of the suggested monetary terms would be appropriate or desirable in all cases. In addition to, or instead of, monetary terms, an agreement may include obligations to improve corporate governance and compliance and to provide for implementation of the agreement’s terms to be monitored, the cost of which would fall on the organisation, or indeed anything else which the parties can agree is an appropriate response to the alleged wrongdoing. It will be for the parties to negotiate, and ultimately for the courts to approve, a range of terms that are fair, reasonable and proportionate. While a financial penalty is very likely to be imposed in the majority of cases, we do not consider it necessary or desirable to require a financial penalty to be agreed and imposed in every case.
Amendment 28 concerns the level of financial penalty payable under the terms of a deferred prosecution agreement. Where such terms are to be included in an agreement, the sum payable should be broadly based on the fine that would have been imposed for the alleged offence on a conviction following a guilty plea. Where available, the court would follow relevant offence-specific sentencing guidelines, as well as guidelines on general principles of sentencing, including the reductions in sentence for a guilty plea, as the noble Lord, Lord Beecham, pointed out. When considering a financial penalty term of a DPA, it is expected that both the parties and the court would have regard to the same guidelines, as well as the balance of other monetary terms of the DPA. This is to ensure as far as possible that any financial penalty under a deferred prosecution agreement would be broadly comparable to a fine likely to be imposed by a court following a guilty plea.
The effect of Amendment 28 would be to place a cap on the maximum financial penalty that could be negotiated under a deferred prosecution agreement. Given that it will be impossible in any particular case to estimate accurately the likely fine the court would impose, it would in practice be undesirable to seek to limit the freedom of the parties to negotiate the amount of a penalty in this way. In any event, the amount arrived at will have to be agreed by both parties before seeking the court’s approval and the court would need to be satisfied that any financial penalty is fair, reasonable and proportionate, such that we do not think specific further provision is necessary. But as I said to the noble and learned Lord, Lord Goldsmith, I will look at both of his amendments.
Amendment 29 relates to the provisions we have made enabling the parties to negotiate a term specifying the consequences of non-compliance with a deferred prosecution agreement. We have included this provision as a way of dealing with non-compliance capable of being objectively determined by the parties, for example, where the organisation has made a late penalty payment. The aim is for the parties to remedy the non-compliance without recourse to the court, for example, by way of punitive interest in relation to the late payment. Such a term would be negotiated alongside all of the other terms of an agreement and approved by the judge. We do not envisage that such a term will be appropriate in all cases. Whether or not a deferred prosecution agreement includes such a term, paragraph 9 provides a formal procedure for breach and non-compliance which will be the most appropriate way for most instances of non-compliance to be dealt with.
I hope that the Committee will agree that it is desirable to ensure that agreements are tailored to individual cases, with judicial scrutiny of all of the proposed terms to ensure that they are fair, reasonable and proportionate, and that it would be inappropriate to make any of the terms of deferred prosecution agreements mandatory in all cases. And as regards setting the amount of a financial penalty term and inclusion of a consequences term, I trust that my explanation has reassured noble Lords. But I shall read in Hansard what the noble and learned Lord, Lord Goldsmith, has said, and perhaps he will look at what I have said. We can see how they match up or where we should move.
Lord Goldsmith
Perhaps I may say a sentence because it may help the noble Lord and his officials. I had in mind in Amendment 29 that the DPA should say, “And if you fail to comply with this, then the prosecution can take place and you may be proceeded against”. That is the sort of consequence I am thinking of. I understand that the noble Lord is talking about something else. So with that expansion of my meaning, I am grateful that it will be looked at again.
Lord McNally
That is extremely helpful. With my advisers, I will look at the points that the noble and learned Lord has made. We do not go behind the Chair in this House, but he knows what I mean. I shall see if we can match up. I have found his remarks very helpful.
Lord Goldsmith
I have a short but important point to make on Amendment 31 which stands in my name. As it stands, paragraph 5(2) requires that there should be an expiry date in any DPA but gives no guidance as to what its length should be. There needs to be some end point. This should not hang on for ever—in any event, it is unlikely that it would do so—but it is difficult to specify what that length should be. It could be different depending on the circumstances. The point of my amendment is simply to say that some consideration should be given to how one determines the length of the DPA. The best way of trying to get some guidance about that seemed to be to suggest that it should be included in the proposed code. There may be other ways to do it. I am completely open to what the mechanism is. My concern is that it is undesirable to leave it as it stands with apparently infinite or perpetual DPAs in existence.
Lord Beecham
My Lords, I certainly endorse my noble and learned friend’s remarks and support his amendment. I also support Amendment 32 standing in the name of the noble Baroness, Lady Hamwee. I shall speak to Amendments 31A and 31B, which again would provide effectively parliamentary oversight and approval of the code of practice to be drawn up by the Director of Public Prosecutions and the director of the Serious Fraud Office.
In his letter to me that other noble Lords may have seen, the noble Lord, Lord McNally, indicated that of course the Government believe in,
“the fundamental principle of prosecutorial independence”.
We certainly affirm that. The Minister went on to say that it is therefore appropriate for the code to be issued by the DPP and the director of the Serious Fraud Office,
“rather than it being put on a statutory footing in regulations laid by a Government minister”.
In my judgment, prosecutorial independence merely applies to the way in which a case can proceed, whether it should proceed and the like, but not necessarily the framework.
This is a novel framework being established for this purpose and, I reiterate, it will need to command public support. I do not refer to the individuals currently holding those offices or necessarily to those previously holding them, but neither of those departments has, shall we say, an unblemished reputation among the public over a series of quite different matters over the years. I have every respect for the current holders of those offices. As it happens, they both seem to be doing a very good job but the history is somewhat difficult in both cases. After a consultation process, the holders of those offices would have effectively the final word without any real intervention or guidance by Parliament. That is inappropriate in the particular circumstances of this case. What I propose would not interfere with their prosecutorial discretion, but it would allow the public to have confidence that the framework being established, within which prosecutorial independence would be exercised and maintained, is one that has Parliament’s support. It would not simply be left to Parliament to debate, without being able to influence it, following consultation carried out under the provisions of the Bill. For what it is worth, I have the support of the noble and absent Lord, Lord Phillips. The noble Lord, Lord McNally, looks to the heavens in gratitude. I shall direct the noble Lord, Lord Phillips, to Hansard tomorrow. There is a serious point here and I ask the Government to reflect upon it.
Lord Goldsmith
Lord Goldsmith
I will also speak to Amendments 34, 36, 37, 39 and 40, which are all in my name. This group covers three topics and I will deal with them shortly. Amendment 33 is really a probing amendment, relating to why there is a double court approval. I have previously talked about the importance of the court approval and nothing that I say now takes away from that. A court approval is important. I was looking forward to explaining to a packed Chamber how the Bill is structured. Sadly, we seem to have reached a moment when it is not as full as I was hoping.
Lord Goldsmith
The quality, as my noble friend says, is however very high. The way the Bill is structured is that there are two court approvals. Under paragraph 7, there has to be a court approval before a DPA is entered into and then a court approval, described as a final hearing under paragraph 8, afterwards. My question is: why is it necessary to have both? I am really not clear what the advantages are because it is plain, under paragraph 8, that a DPA does not come into effect and cannot be entered into unless there is the court’s approval. Why does one need the prior approval under paragraph 7? I do not see the advantages; that is why it is a probing amendment.
I also see disadvantages. There are costs and court time, both of which are precious commodities—particularly for the ministry that the Ministers represent. I am concerned that it is also unnecessarily cumbersome. May it also distort the negotiating process? Might a defendant who is a potential agreer to a DPA say, “I know you want more, Mr Prosecutor, but let us go and ask the judge whether what I have offered so far is enough”. I am not very happy with that proposal. Above all, why is it necessary to have a double process? That is the question. Amendments 37 and 39 are consequential to that amendment.
The next point, which I imagine can be dealt with very quickly, is in Amendments 34 and 36. These amendments are designed to ensure that whatever process there is, whether it is preliminary or final, it is clear that the defendant is to be present when that takes place. I have little doubt that that is what is intended but I would like reassurance on it, and that there is not to be any form of ex parte application by the prosecutor to the court—something to which the defendant is not a party.
Amendment 40 raises a more substantial point. As it stands under the scheme of the Bill, when a DPA comes to an end certain things are to happen. Paragraph 11(8), to which this amendment applies, requires that at that stage there should be details of the compliance. It says that:
“Where proceedings are discontinued under sub-paragraph (1)”,
which I apprehend is when the DPA has come to an end,
“the prosecutor must publish … the fact that the proceedings have been discontinued, and … details of P’s compliance with the DPA”.
I am rather concerned about why that is necessary. It cannot be for the purpose of checking whether there has been compliance because that must be for the prosecutor to do. Indeed, if the public say, “We don’t like this compliance”, there is no procedure for the DPA somehow to come back into existence, so I do not see why it is necessary. If, to take a different case, a prison sentence is reduced for good behaviour, the behaviour that has led to the reduction is not published.
I am concerned for one reason in particular. If there is a lengthy DPA, and the company, which it seems it is simply going to be, has complied and done what was necessary, the publication of the details of its compliance—and I do not know how detailed that will be—would result in the whole thing being revived. That is a little against the spirit of the idea that you make an agreement, it is sanctioned by the court, you comply with its terms, and then your record does not get sullied again. I am concerned that the consequence of this may be to raise the matter again to the disadvantage of the defendant who has done all that was required of him or her. If it is necessary because there is a real point in publicising the details of compliance, that may be one thing, but because I cannot, at the moment, see the benefit of it in the scheme of the provision, I question its desirability. I look forward to hearing what whichever noble Lord responds will say about it. I beg to move.
The Lord Speaker (Baroness D'Souza)
I must advise your Lordships that if this amendment is agreed to, I cannot call Amendments 34 and 35 by reason of pre-emption.
Lord Goldsmith
My Lords, I am grateful to the noble Lord for that detailed reply. I want to study carefully in Hansard what he said, as I want to study what was said by him previously on other amendments and by the noble Lord, Lord McNally, and then decide what I would like to bring back on Report. Nevertheless, I am grateful for his reply, as I was grateful for the detailed letter that came from the noble Lord, Lord McNally, which dealt with questions that I raised on the previous occasion. Subject to that, and given the hour, I beg leave to withdraw the amendment.
Crime and Courts Bill [HL]
Lord Goldsmith Excerpts(11 years, 6 months ago)
Lords ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Lord Marks of Henley-on-Thames
It can be inferred from the fact that there is a proposal that the prosecuting authority has to go to a judge at the preliminary hearing to persuade the judge that the case is suitable for a DPA. If a prison sentence ought to be imposed on the person “P”, that agreement would not be forthcoming. That, I suggest, would be the effect of the proposal, although it may be necessary to make it clear by amendment; I appreciate that.
My second point is that the offences covered in Part 2 are economic and financial, and only financial and economic offences may be added to the list by delegated legislation. I wonder whether the restriction, not as to the legislation but as to the offences, is entirely justified. Environmental offences, for instance, seem appropriate. There are other random examples of offences contrary to regulation that might be suitable, such as offences against fishing regulations regarding net mesh sizes and permitted catches. Those may be examples, and there are many more. There are other regulatory provisions where DPAs might be appropriate. Perhaps it may be as well to let us see how DPAs work with the offences listed in the schedule at this point and then look to amend the legislation in the future. Certainly as a member of your Lordships’ Select Committee on Delegated Powers and Regulatory Reform, I see the difficulty of adding large numbers of offences to the list by delegated legislation, as the noble Lord, Lord Beecham, pointed out. However, I suspect that our early suspicions of DPAs will wane in practice and that they may become tools of wider use and greater utility than is now envisaged.
Lord Goldsmith
My Lords, first I want to declare an interest. As my noble friend Lord Beecham said, I had something to do with an earlier consideration of similar problems when my party was in Government and I was in office, and I want to say something about that in a moment. I also declare that I am currently a practising lawyer and that I and my firm get involved in the sort of cases that this may be concerned with. I have seen how these systems work in the United States and I have thought about them quite hard. I want to make it clear that broadly speaking I am in favour of the proposal for deferred prosecution agreements. However, I have some questions that I will come to, and I understand very well the point made by my noble friend about the timing of the proposals being brought forward.
Before I turn to the substance of what I want to say, I am a little confused at the moment about the procedure that is being followed. This may be because unfortunately I was detained from coming to the House when noble Lords were considering the previous group of amendments. I came in at the tail end to hear something that I am not quite sure I understood, about matters being discussed again on a future occasion. But unless I have misunderstood, I notice that the noble Lord, Lord McNally, has moved government Amendment 155ZB, which provides for the introduction of a schedule relating to deferred prosecution agreements. Without, as it were, dissent, we seem at least to have got the concept of a schedule into the Bill. Whether that means that the noble Lord is going to move the schedule as a complete schedule, I am not sure, but if he does, that gives rise to questions about whether there will be any real opportunity to debate or amend its provisions. I want to ask some questions about the detail, so I would be grateful if the noble Lord could explain the situation.
Lord McNally
We are all in a form of something that is not quite unique territory. Because we have used this device, it may be that an eagle-eyed lawyer will spot a contradiction in process. What I will give as an absolute guarantee to the Committee, by whatever means we use to do it, is that this is intended as if it were a Second Reading debate. Any amendments that need to be made and any further consideration of the detail will be permitted when we come back to the Bill on 13 November. I hope that that gives the noble and learned Lord the reassurance he is seeking.
Lord Goldsmith
I am grateful for that. It makes sense because the questions I want to raise are very much in the nature of those put in a Second Reading debate. Let me explain first why I am broadly in favour of this approach. While I agree with a number of the points made by the noble Lord, Lord Marks of Henley-on-Thames, I think he missed the main point. The main point of DPAs is not so much to substitute a financial penalty or something of that kind for a conviction, it is to provide a mechanism to change behaviour. The critical point is to agree conditions which act as a carrot and a stick. If you go forward and you comply with conditions that change your behaviour, you will not find yourself being prosecuted and convicted. A classic example of this which is not in the field of economic crime—I want to come back to that point—would be disposals in relation to people who have been involved in drug offences. You want to find a way there of changing their behaviour in taking and dealing drugs. In some jurisdictions in the United States, that is done by having in effect a deferred prosecution agreement under which they agree some pretty tough conditions about how they deal with their drug problem, including treatment, regular testing and so forth. If they fail, they go back to court and are dealt with very heavily; if they succeed, it is very much to their benefit, and also of course to that of the public, that the problem is removed.
The idea of a deferred prosecution agreement, in my mind, is to change behaviour by having a carrot and a stick. Therefore, the conditions that the schedule provides may be entered into include conditions, for example, for future compliance—which is critical, it seems to me—by someone who is subject to a DPA of their business, because that is the way this is drafted at the moment. That is desirable. Indeed, I became of the view that something like this was necessary during the course of my time in office when I recognised that we did not have the ability under English law to say to somebody, “OK, you say you are contrite and that you are prepared to do all these things. That is very good and we will give you credit for it, but I am sorry—you are still going to be convicted. You will have a conviction, which means that when you come to take employment or apply for whatever it may be, you will have that against you”. I thought it was a tool that we ought to have to be able to avoid that. It plainly does not apply in every case—let me make that very clear—and many offences require very significant and severe penalties to be imposed. I am not a softie when it comes to any of that at all. However, I came to the view that we ought to have something of that sort.
We did not have it, although my noble friend Lord Beecham is right that we ended up, I think, with the Criminal Justice Act 2003. I may have got the Act wrong, as we did pass one or two Criminal Justice Acts in our time—noble Lords will forgive me if I cannot distinguish them all from each other with absolute precision. We provided for a conditional caution, which is different from a fixed penalty, as it was a caution with conditions attached; for example, to go on an anger management course, a drug or more likely drink treatment course. A prosecution did not take place at that time, but if the person did not comply with the conditions, they could be prosecuted and sentenced for the original offence. That idea is already in our system, although, as my noble friend has said, quoting my words, at the other end of the scale of offending. In principle, it is a good idea. We commissioned a review on fraud with the Chief Secretary to the Treasury in the belief that we did not deal adequately with economic crime in this country on a number of grounds. It came up with some recommendations, including something along these lines.
I will turn, with that degree of general Second Reading-type support, to the some of my questions. The first is the one raised by the noble Lord, Lord Marks, about whether it is right that this should be limited to companies or business organisations. There is a lot to be said for having this tool available in relation to individuals as well, and I have already given a couple of examples where that could be useful. I recognise that, as it stands, the proposal gives rise to the concern that this is just for business to buy its way out of prosecution. Actually, if this was a broader power, which was only applied appropriately, that concern would start to disappear. There are circumstances in which I believe individuals and the public would benefit from such a power. If one is limiting it to corporations and businesses, it is quite difficult to fully justify that. If this were restricted to offences such as those under Section 7 of the Bribery Act—where I think this will be used quite a lot—that do not involve what we would call a “guilty mind” on behalf of a corporation, in that it is an offence that it is guilty of despite a lack of intention to commit the offence, it might be justifiable. However, the offences that are included potentially include offences where the corporation or partnership would only be guilty if there was a guilty mind. I am not convinced and would like to hear more from the Minister as to why it is thought to be right.
Along with the noble Lord, Lord Marks of Henley-on-Thames, I am not convinced that it is right to limit the availability of this power to economic crime. He mentioned a number of areas. I cannot comment on the fishing side, as I am just a town boy and have never understood that side of things, but he is right about environmental issues, which are terribly serious, where sometimes you want to impose some form of regime that means that the business will operate in a much better way in the future, although you may have some penalty attached at that time as well. Health and safety is another area. I do not want to minimise health and safety offences, which are very important, but that is another area where businesses, and the public, might benefit from this sort of review. I invite the noble Lord to say a little more about why it is limited in this way. Is it because it is thought this might get it through this House and Parliament or are there other, more principled, reasons? It gives rise as it stands to the objections that my noble friend has raised.
I will raise some more specific points on paragraph 5. It is noted that a DPA, in the statement of facts, may include “admissions made” by the person who is subject to the order. This is unlike the conditional caution regime, which requires admission for it to operate. I assume that this is a deliberate decision by the Government so that DPAs can be imposed on people who are not admitting the offence at all. I do not object to that, as it may be quite a good way of dealing with certain situations where the prosecution are not sure that they can prove the case but someone is prepared to pay a penalty, pay compensation and change their behaviour for the future. However, I ask the noble Lord whether that is the intention behind this. Paragraph 5(3)—
Lord Phillips of Sudbury
Does the noble and learned Lord not think that if he pursues that line, it will enable the party that has entered into the DPA to get away even more with what they have done? I think I am right in saying that in the United States, with a plea bargain, they at least have to admit that there has been some wrongdoing. If they do not even have to admit that, the public relations impact of one of these DPAs will be even less that it will be anyhow.
Lord Goldsmith
The noble Lord may be right about that. I am asking the Minister a question about the thinking. One has to recognise that there are cases where the prosecution cannot actually prove the case, or it would be enormously expensive to do so, with uncertain prospects. I can see that there may be circumstances where getting a regime that for example secures compliance for the future may be worth while. However, that is only my speculation as to why “may” is there rather than “must”, which I would have expected based on the conditional cautions.
Paragraph 5(3)(e) talks about the implementation of a “compliance programme” and I would like the noble Lord to say something about what sort of compliance programmes the Government have in mind, and whether they would include, for example, the putting in place of monitors, and whether that is something that can be sufficiently dealt with by the words here or whether it needs some specific language. As regards paragraph 6 of the code on DPAs, is it intended, as my noble friend Lord Beecham asked, for the code to be placed before Parliament—as is the code for the crown prosecutors, if my recollection serves me right? I can see that Parliament would have an interest in that.
Paragraphs 7 and 8 would require the prosecutor to apply at different stages for declarations in certain terms that entering into a DPA is likely to be,
“ in the interests of justice”—
and that the proposed terms of the DPA—
“are fair and reasonable and proportionate”.
Is it necessary to ask a court to do that? Plainly, the court must be asked to approve the solution. However, I am not sure whether one should also ask the court to make declarations as to these matters. I would like to hear from the Minister as to the thinking behind that. As I understand it, under paragraph 8, the final hearing must be in public, whereas the preliminary application would be in private. I would be grateful for confirmation as to that.
Paragraph 11 deals with discontinuance of the DPA. I am probably missing it but I looked for a clear statement that if there is a finding of non-compliance by the court, that is likely to result in criminal proceedings being instituted. Finally, I, too, would welcome hearing what the proposals are in relation to addition to this schedule and the procedure that will be adopted.
I apologise for that quite long list. This is an important provision. It is a bit difficult to see how we are going to deal with it in a second Committee stage. I am looking forward with great interest to seeing whether the Minister is actually moving the whole of the schedule now so it goes into the Bill and we then apply to amend it, but I accept his assurances that if that is what happens, we will be able to apply to amend it hereafter.
Lord Woolf
My Lords, I think that this is a very positive step and could be very valuable in the administration of justice. We should be aware that in the States there has been a risk of unattractive practices developing in this field, but as long as we have the appropriate code and safeguards, that should be able to be overcome.
I listened with care to the comments made by the noble Lord, Lord Marks of Henley-on-Thames, on limiting this to corporate bodies and not extending it to individuals. I suggest that there is substance in his concern, which the noble and learned Lord, Lord Goldsmith, feels may have force. The danger of not allowing individuals also to be dealt with is not the risk of them getting away with it, but of preventing an agreement being reached when it should be reached and when the very extensive powers indicated in paragraph 5(3) would be of great benefit to the public. I draw particular attention to compensating victims, donating money to charity and disgorging any profits made by P. The reality is that behind every company there are individuals. If the individuals are not going to be covered by the agreements, the agreements will be very much less attractive in practice to the corporate sector than they would if individuals could be included. Perhaps we should look at the question of whether it would not be better to enable the matter to be dealt with once and for all, for both officers of a company and the company itself.
Legal Aid, Sentencing and Punishment of Offenders Bill
Lord Goldsmith Excerpts(12 years, 2 months ago)
Lords ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Baroness Grey-Thompson
My Lords, I rise briefly in support of Amendment 11 because I covered the appeal process extensively during our debates on the Welfare Reform Bill. I completely agree with the noble Baroness, Lady Doocey, who is absolutely right to say that the current proposals will represent the most major and life-changing reform to the welfare system. Her amendment offers some protection to ensure that the right people are supported. Both inside and outside your Lordships’ Chamber, we hear an awful lot about how we want to help and support disabled people. If we want to do so, this is our chance to prove it. I strongly support the amendment.
Lord Goldsmith
My Lords, I raised in Committee the issue of the advice sector and advice agencies, about which the noble Lord, Lord Shipley, has spoken. If one takes stock of where we have got to in this debate, in which there have been many speakers, one sees that everyone from every Bench has said that the Bill will not do and does not provide necessary support in the welfare area. I do not for a moment want to repeat the powerful speeches of the noble Baroness, Lady Doocey, the noble Lord, Lord Newton, or others. The question is not, “Does the Bill need to be amended to deal with welfare benefit in some way?”; the question is, “How should it be amended?”.
I therefore want to speak to Amendment 101, which was seductively spoken to by the noble Lord, Lord Shipley, and the exceptional funds that we have been told about and, no doubt, will be told about. The fact in relation to the advice agencies—and I have explained my connection with them—is, as the Minister helpfully told me in a letter that is now in the Library, that the funding given to the not-for-profit sector will be cut by 77 per cent. That represents more than twice—nearly three times—the £20 million that the noble Lord talked about as an addition. The Advice Services Alliance estimates that 800 specialist advisers will be lost from the advice sector as a result. As many noble Lords have said—and from my experience as a lawyer it is true—it is important to bear in mind that the welfare benefit side requires an expertise that most lawyers do not have. It is also another reason why the argument sometimes put forward for the Bill—that it will reduce the fat cats—is completely lost. No cat gets fat on welfare law.
The questions are on whether the vague and hedged promises of some money are sufficient, and whether the amendment of the noble Lord, Lord Shipley, is enough. For three reasons, I respectfully say that it is not. First, it is rather confusing. It divides into two parts. Proposed new subsection (1) mentions the Lord Chancellor having a power, as the noble Lord said. He may make funding available. That is a discretion. As we discussed in Committee, you cannot enforce a discretion; what the Lord Chancellor—or, as I rather mischievously suggested, the Chancellor of the Exchequer—decides to do determines what happens under that subsection. We have a new subsection proposed which states:
“The Lord Chancellor must make permanent arrangements for such purposes”,
and then specifies certain things. There are two problems with that. First, it appears to conflict with the first subsection, which identifies a discretion. Indeed, if you have to identify the hierarchy of the subsections, the first appears to be the most important, because proposed new subsection (2) says that the Lord Chancellor must make permanent arrangements “for such purposes”. “Such purposes” is a reference back to proposed new subsection (1), which is discretionary. So my first concern is that that does not impose a duty on anybody.
Legal Aid, Sentencing and Punishment of Offenders Bill
Lord Goldsmith Excerpts(12 years, 2 months ago)
Lords ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Lord Goldsmith
My Lords, I support the amendment. The principal reason for supporting the amendment that has been given by noble Lords who have spoken so far is that it would focus attention on what the Bill will do. I support that, particularly if it is being suggested that the Bill is about trying to hit back at lawyers’ fees, although I did not hear that remark myself. The Deputy Leader of the House—I nearly called him noble and learned—will recall that I debated with him in Committee the impact of these changes on law centres, citizens advice bureaux and the advice sector generally—which is the final category referred to in the amendment of the noble Lord, Lord Bach. I refer to the disclosures of interest that I made on that occasion as the chairman of the Access to Justice Foundation. That foundation held its annual general meeting this week, which involved agencies in the advice sector as well as the professional bodies. The key question at that meeting which I wish to underline is: what will these changes mean for the planning that these bodies have to do for the future? For that reason, as well as the reasons that have been advanced by noble Lords, it is important to understand as clearly as one can what the impact of these changes will be.
The noble Lord was good enough to write to me on a specific point. Will he ensure that that letter is placed in the Library before Wednesday’s Report day, when I think we will consider social welfare issues? I want to underline the fact that it is critical for these agencies, which operate on a shoestring and do extremely important work, at least to know what the impact of these changes will be so that they can plan for that, quite apart from the powerful points raised by my noble friend Lord Bach and others about whether the Government really understand what the Bill will do.
Lord Judd
My Lords, frankly, it beggars belief that in an area which involves so much social distress and suffering the Government should rush into this legislation without having considered its impact and consequences. In terms of social irresponsibility, it is difficult to speak too strongly about that. Moreover, such a course of action makes absolute nonsense in terms of public expenditure. If we insist on cuts of this kind in a front line where we hope that things can be put right in time, expenditure on the cases concerned may considerably increase future pressure on the public purse, and more widely because of the contaminating effect of the cases concerned. This is short-sighted, counterproductive government of the worst order.
I have spent a great deal of my life working in the voluntary sector and I know that it is not just the voluntary organisations in the legal sector which will be affected, given that they will have tremendous additional burdens in the aftermath of the introduction of this measure, but that all the other voluntary organisations working in the front line of social action will have to pick up the pieces and the consequences of it. This is happening at the very time that the resources available to such organisations are diminishing and they are becoming frantic about how they will continue their work. This amendment is crucial. I cannot say how strongly I support my noble friend in having put it forward.
Legal Aid, Sentencing and Punishment of Offenders Bill
Lord Goldsmith Excerpts(12 years, 3 months ago)
Lords ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Lord Goldsmith
My Lords, I very much welcome this amendment and thank the noble Lord, Lord Pannick, for having taken the opportunity to move and to promote it. He has already explained my particular interest as the now chairman of the charity that receives money made under these orders, which I prefer to call pro bono cost orders rather than Section 194 orders, because that is what they are. They are cost orders in the same way as the court grants costs in any other case. It is just that they do not go to the lawyers; they go to this charity which then distributes them. I should also declare an interest as the non-executive president of the Bar Pro Bono Unit and patron of the National Pro Bono Centre, two organisations that might—one of them certainly has—receive some of the grant money.
As the noble Lord has explained, the reason for these orders is the so-called “indemnity principle” in our costs regime. The indemnity principle means, first, that the court can order one party to pay the other party’s costs but only if that party is liable for those costs. In pro bono cases, the body is not liable for costs. That has several consequences, one of which is that you do not have the normal result at the end of the case where often the successful party receives costs. That results in the oddity—this is where I first saw the anomaly—of the unsuccessful party, the undeserving party if your Lordships will, receiving the benefit of the pro bono services, perhaps of some advocate as distinguished and able as the noble Lord, Lord Pannick. That cannot be right.
Secondly, there is no incentive to settle cases, which there often is in English cases, when there is a possible liability to costs at the end of the day. We have seen in a number of cases how that affects whether cases are settled; insurance companies and corporations will pay to a deserving claimant because they know that at the end of the day they will have to bear some costs if they do not.
Thirdly, it has proved to be a very valuable source of additional money for voluntary organisations providing pro bono services. I am very grateful to the noble Lord, Lord Pannick, for paying tribute to the lawyers—solicitors, barristers and legal executives—who do this for free and without payment. When I established the Bar Pro Bono Unit, I asked whether members of the Bar would be prepared to commit to three days of free unpaid work a year, and straightaway I had an overwhelming response. People are prepared to do this, and that is a great credit to them.
I have one thing to say to the Minister, which I always say when talking about this subject: this is not a substitute for a properly funded legal aid service but an adjunct to it, and a very valuable one. However generous a system might be, and we hope very much that the noble Lord will produce a more generous system at the end of the Bill, there will still be a need for this unit. However, as the noble Lord, Lord Pannick, has explained, there is a gap in that the House of Lords is not covered—
Lord Goldsmith
I am sorry, the Supreme Court—how outdated I am. To fill that gap would be very valuable. My understanding, like that of the noble Lord, is that the Supreme Court would welcome this. That is not surprising because the president of the Supreme Court is the noble and learned Lord, Lord Phillips of Worth Matravers, who, when he was Master of the Rolls in the Court of Appeal, was instrumental in passing the earlier Bill, but no doubt the Minister can confirm that. If not, his unsleeping department will be able check it instantly. I strongly support the amendment and hope that the Government will be able to accept it.
The Minister of State, Ministry of Justice (Lord McNally)
My Lords, I am grateful to the noble Lord, Lord Bach, for his intervention, and to the two noble Lords who contributed to the debate. The role of the Ministry of Justice in pro bono work is undertaken in partnership with the Attorney-General to endorse, support and facilitate pro bono initiatives. The Attorney-General carries policy responsibility for pro bono work within the Government, presumably following the initiative of the noble and learned Lord, Lord Goldsmith. I certainly pay tribute to the work that he has done for the Access to Justice Foundation. I understand that the foundation runs an awareness-raising campaign, Unlock Funds for Justice, while on the other side the MoJ is providing funds for LawWorks over the next 18 months to fund two specific projects. LawWorks is the primary referral agency for legal help provided pro bono by solicitors. Although he is not in his place at the moment, I know that my noble friend Lord Phillips of Sudbury has played a big part in promoting the agency.
Let me say first that the Government recognise the valuable contribution made by the legal profession in providing advice through pro bono work. The pro bono contribution made by the legal profession is made alongside publicly funded legal assistance. It is an adjunct to, not a substitute for, such assistance. I think that these speaking notes must have been left over from one of the briefs of the noble and learned Lord, Lord Goldsmith.
Lord McNally
My Lords, Section 194 of the Legal Services Act 2007 allows courts to make an order for costs against a losing party in pro bono represented cases, with the moneys recovered going to a prescribed charity, the Access to Justice Foundation. The Ministry of Justice works with the Attorney-General who, as I have said, has policy responsibility for this work. The legislation reduces the disadvantage to parties represented pro bono by levelling the financial risks of litigation for both sides. It has also provided a new source of funding for the strategic support and promotion of pro bono work.
I am extremely grateful to the noble Lord, Lord Pannick, for highlighting this issue. The amendment, though, is one that the Lord Chancellor would like to consider further. Perhaps I may say that considering it further does not mean kicking it into the long grass or even making it a no-brainer, but it is one that needs proper consideration, and he has asked that, in that respect, he be given time to give it that consideration. I hope that the indications of support given in the Chamber tonight, the general direction of travel of this reply and my desire to make this a full house in terms of saying nice things about amendments that the noble Lord, Lord Pannick, has introduced today will give him confidence that what I have said is not a way of putting this matter into the long grass but of asking, as my briefing note does, that the Lord Chancellor be given time to give full consideration to this important matter. I see both the noble and learned Lord and the noble Lord coming for me.
Lord Goldsmith
One issue that we have looked at is whether it would be necessary to have any orders or consequential provisions made as a result of this change. I understand that, because of the existing Supreme Court rules, which can follow the rules in the other courts, it would not be a burden on officials. That might help the consideration to which the Minister has referred.
Lord McNally
The wonderful thing about this House is that you get free legal advice. I will certainly take that back to the Lord Chancellor with the weight of the advice of the noble and learned Lord, Lord Goldsmith, behind it. With that further steer, I would be grateful if the noble Lord, Lord Pannick, withdrew the amendment.
Lord Dholakia
My Lords, my Amendment 172C is grouped with Amendment 172A, among others. I agree very much with almost all of what noble Lords have said on these amendments. I particularly thank the noble Lord, Lord Ponsonby of Shulbrede, for rightly seeking to put the victim very much at the centre of the process; victims must be informed about what has happened.
The purpose of my amendment is not to miss out a very important element in the sentencing process. It would retain the duty on courts passing custodial sentences to give reasons explaining why they consider it necessary to pass a sentence of imprisonment. It would not take away any powers from the courts to prescribe a custodial sentence. The intention is to provide an explanation which informs people about the purpose of passing a custodial sentence.
My amendment goes further than Amendment 176ZB, tabled by my noble friends Lady Linklater and Lord Thomas of Gresford. Their amendment, which I also support, is limited to sentences of less than six months, whereas mine would go further and apply to sentences of six months or more. Let me explain why.
In general, I welcome Clause 61. It replaces the current complicated requirements on courts to explain the implications of and reasons for their sentences with a simple requirement that they should explain the sentence in ordinary language—a point made by many noble Lords. This is a welcome simplification of the court’s duties at the sentencing stage.
However, I have one concern about this change—namely that it abolishes the requirement for courts passing prison sentences to explain why they consider that the offence requires a custodial sentence. Depriving offenders of their liberty by passing a custodial sentence is a uniquely serious decision that is in a different category from imposing even the most intensive community sentence. A prison sentence often means that an offender loses his or her accommodation. Many offenders sentenced to custody lose their jobs. Others have their education disrupted. All too often, custodial sentences contribute to the break-up of families. Community sentences, even intensive community sentences with significant restrictions on the offender's liberty, do not produce those results. I submit that a court should have to explain its reasons for concluding that, despite those negative consequences, it nevertheless believes that only a custodial sentence can be justified.
Although I support my noble friends’ Amendment 176ZB, I consider that this duty to give reasons should also apply to sentences of six months or longer. There are often occasions on which courts decide that it is more productive to impose a community sentence with, say, a drug rehabilitation requirement or a sex offender treatment programme than to pass a one-year or even a two-year custodial sentence. A one-year or two-year sentence means that the offender actually spends six months or a year in custody before release. He or she then returns to the community, usually without having been through a treatment programme that could help to reduce reoffending. In these cases, too, courts should have to exercise the discipline of giving reasons for their conclusion that only a custodial sentence can be justified. The discipline of having to give reasons for passing a custodial sentence helps to concentrate sentencers’ minds on the gravity of their decision. This is designed to help ensure that custodial sentences are imposed only when there is no reasonable alternative.
I therefore hope that the Government will think again and decide to retain this important requirement. My amendment and that of the noble Lord, Lord Ponsonby, bring transparency to the sentencing process, and I am sure that the Minister will, on reflection, consider this to be a sound case.
Lord Goldsmith
My Lords, this group of amendments touches on a number of important issues. I have great sympathy with what my noble friend Lady Quin and the noble Lords, Lord Ramsbotham and Lord Wigley, said on those issues. I shall not touch on those matters as the noble Lords have greater experience. I was slightly alarmed to hear what the noble Lord, Lord Ramsbotham, said about the intention to take away prosecutors from conditional cautions. We will consider that issue later in the Bill and I look forward to hearing just what the proposal is and the justification for it.
I want to spend a moment or two on the amendment moved by the noble Lord, Lord Ponsonby of Shulbrede, which does a great service to the Committee by focusing attention on the need for the victim to know in appropriate ways what the outcome of the case has been. The victim, although not like a plaintiff in a civil action, is after all still the person to whom the offence happened, and it is right that the victim should therefore be told what happened, and told appropriately. I also very much agree with the noble Lord that generally that duty should be on the prosecution.
It is important that the public and victims see that prosecutors are there to some extent as an interface between them and the court and justice system, and that prosecutors focus on the needs of victims—as well, obviously, as on the professional requirements of their job to bring and prosecute cases fairly.
My question about the amendment, while fully supporting the spirit and intent behind it, is whether it is necessary for that to be dealt with by way of imposition of a duty and a new form of order. I say that because I would have hoped that, by now, prosecutors would know that they have that responsibility. I will be interested to hear in due course from the Minister and the noble Lord, Lord Ponsonby, who has promoted the amendment, whether it is believed that prosecutors are not doing that.
There are one or two reasons why a duty may give rise to difficulties. The prosecution may not always be a professional prosecutor. Sometimes the prosecutor may be a private prosecutor. It may be inappropriate for a number of reasons to impose the same duty on a private prosecutor—a neighbour in a neighbour dispute, for example—as on a professional prosecutor. There may also be victims who need particular care in explaining to them the outcome of the case, and that may need professional skills.
I am also concerned that, by imposing a particular duty of information on prosecutors, we do not take away the need for them to provide other information. Reference has already been made in this short debate to the need for prosecutors to keep victims informed of the progress of cases. In my day, we attempted to deal with that and provide flexibility by creating a victims’ charter, which was intended for prosecutors to sign up to under the guidance—or, indeed, direction—of the Attorney-General, which would cover progress of the case and, as the noble Lord, Lord Ponsonby, said, its outcome. That may be a better system to achieve what he wants.
As I said, I look forward to hearing what the Minister has to say. I entirely agree with the fundamental point that the victim should be informed of the outcome appropriately and that the prosecution should have a duty to do so.
Lord Bach
My Lords, this is the first debate of many, I suspect, on Part 3. Part 3 is entitled “Sentencing and Punishment of Offenders”, and Chapter 1 is entitled “Sentencing”. Luckily, there does not seem to be a part entitled “Punishment of Offenders”, but we know that that was a late introduction to the Title of the Bill many months ago.
I shall be very brief indeed. The Committee has been lucky enough to hear speeches from many noble Lords, all of whom have great experience of the criminal justice system in the best possible way—by being either magistrates or experts for many years in the work of the system. We are very lucky in the Committee and the House to have them to give us the benefit of their wisdom on it.
Part 3 is very important. The Opposition certainly do not intend to be difficult in any way about this part. If we think the reforms are wrong, we will say so; if we think they are right, we will happily agree with the Government. We know from our experience of government that this is not an easy area to deal with. Sometimes Governments have to be tough in the face of what seem overwhelming arguments from Parliament; and sometimes Governments can be too tough and not take note of sensible recommendations made.
From listening to what has been said on the various amendments tonight, some sensible suggestions have been made—none of them revolutionary or radical—to change the system. Clause 61 is liked; the noble Lord, Lord Dholakia, said that he approved of it, and I suspect that that is true of others around the Committee.
The only point that I will make concerns victims. I think that the Statement made by the right honourable gentleman the Lord Chancellor in another place on Monday regarding the Criminal Injuries Compensation Authority, as it is now known, and the change of policy on some of the tariffs may have been quite disappointing for some victims and victim groups. I am sure that does not mean that this Government are in any way less committed to looking after victims’ interests than were the Government of whom I was a member. I know that all those who talk about fair play for offenders—making sure that the system includes rehabilitation for them and a chance to do better—have exactly the same feeling about victims as the rest of us.
I do not want to go into any of these amendments tonight, and I am quite sure that the Committee is with me on that. However, I do want to hear the Minister’s response to the points that have been made. I hope that he is sympathetic to these amendments. I am sure that none of them will be pushed tonight but some important points have been made and we look forward to his reply.
Legal Aid, Sentencing and Punishment of Offenders Bill
Lord Goldsmith Excerpts(12 years, 3 months ago)
Lords ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Lord Shipley
I am grateful to the noble Lord, Lord Beecham. I do mean £20 million a year from the recurrent cost to provide for those local partnerships. There would have to be a co-ordinating charity, but that should be possible.
In a short debate on citizens advice bureaux on 8 December, I talked around this point and said that there was capacity at a local level to help the Government to solve the problem. Of course, all of this would be in the spirit of localism. The Government have just enacted the Localism Bill. The Localism Act has as its basic principle the principle that far more should be devolved from the centre to local areas.
The first part of the amendment simply gives the Lord Chancellor discretion to permit transfers from the legal aid budget to other funding streams for the provision of advice on issues to which Schedule 1 does not apply. The second part facilitates a cheaper delivery model based on local partnerships. On a practical level, it is important to note that it would be a waste of resources if legal aid clients could not receive holistic advice. There could also be many cases at the margins of situations covered by Schedule 1, and we should note the Legal Services Commission's response to the Green Paper, which highlighted the problem of boundary issues and warned that,
“the administration costs of considering such cases could erode the revenue savings that the Ministry of Justice has committed itself to”.
I think this suggests that we ought to do some further work between consideration in Committee and Report and that we should not lose the opportunity to engage with finding a solution to this problem. I hope that the Minister will understand that in moving this amendment, we are trying to be helpful. There are suggestions that this approach, or one like it, could work very well. I hope that in his reply the Minister will say that he is willing to engage in further discussions prior to Report.
Lord Goldsmith
My Lords, in an earlier debate in today’s Committee I indicated my involvement in helping agencies that provide social welfare advice and legal help to consumers, employees and others. I am therefore very sympathetic to what lies behind this amendment, which is a recognition that the Bill as it stands will remove an important lifeline for individuals by removing legal aid from the agencies. As I said in that earlier debate, many people outside Parliament may not appreciate that legal aid is not just about giving fees to chaps in wigs; it is also about supporting agencies that provide a lot of excellent advice on a very good value basis. They are able to do that because some of the work they do is supported by legal aid. They are very good value for money and produce tremendous results.
My noble friend Lord Bach has already referred to the very interesting research produced by the Legal Action Group on the provision of social welfare law advice in London. That research points out not only what will happen in terms of dramatically reduced services but how that will cost the state more. As I think the report says, it is penny wise and pound foolish to go down this route. That has been debated before. I am very sympathetic to doing something that will provide funds for these agencies. That is not the only thing that needs to be done to the Bill, but it is an important point—and my noble friend Lady Mallalieu and the noble Lord, Lord Shipley, have made it as well. The problem is whether this amendment will do that. That is where I am concerned. I agree with the identification of the problem, but I am very worried that this is not the solution.
It is not the solution for the reasons that both of the previous speakers referred to. The amendment provides discretion to the Lord Chancellor, because that is what it says, but it goes further than that, as I will describe. The amendment would give the Lord Chancellor the ability to make funding available in circumstances that are completely ill defined. In other words, the criteria are entirely for him to determine. I will come back to what I mean by the word “him” in a moment. It reminds me that in the days before the law of equity and common law were separated, the Lord Chancellor had his own jurisdiction in legal cases. He ran the rules of equity. The criticism—I think the most famous criticism came from the jurist John Selden—was that because it was discretionary and the rules were not rigid or written down in the way that the common law was, you never knew what you were going to get. It was said that it was as if the measure of a foot in equity would be as long, as short or as indifferent as the Lord Chancellor’s foot. That is what worries me about this amendment. It leaves it to the person who has the discretion to determine whether to make any funding available, and if so, how much.
At one stage, I was going to describe this as the “Lord Chancellor’s foot amendment”, but it is worse than that because it is not actually the Lord Chancellor’s foot I am worried about. The present Lord Chancellor is—as no doubt all future Lord Chancellors will be—a man of generosity and kindness who understands the problems of the world and is desperate to help his fellow man. The problem is that Lord Chancellors do not get their money themselves; they get it from another person with the word Chancellor in his name. So I am going to describe this as the “Chancellor’s foot amendment”. I would love to see this amendment come back with tougher criteria and more obligations imposed. The noble Lord, Lord Shipley, suggested that more work be done on what is needed. I do not know whether £20 million a year is the right number for this area—I would be surprised if it is—but it is worth doing that work. This report deals only with London, which in my experience is the best served place.
I would like to see more work done on this, but the amendment will not work as it stands. I am really concerned that this will be put forward as a sop to those of us who would like to see specific areas of welfare law brought back into scope, and we will be told, “Don’t worry, because when this amendment goes through, all these cases can be dealt with through a decision to provide funding”. If this amendment said, “and the Lord Chancellor will have X hundred million pounds a year for that purpose and he will exercise that discretion in those cases”, I might be more favourably disposed towards it, but at the moment I am worried that this will simply be a sop. I too look forward to hearing what the Minister has to say about it, but as it stands it identifies the problem but not the solution.
The Minister of State, Ministry of Justice (Lord McNally)
I am pondering whether to say, “If the noble Lord, Lord Thomas, is playing into the Government’s hands, it would be for the first time”, but I will not. Instead, I will simply say that we have taken a decision on the shape of this Bill which we have continued to explain. We have returned to a number of issues around that, and this amendment seeks to include a power within the Bill to fund the not-for-profit sector to do work that is outside the proposed scope of the civil legal aid scheme. I acknowledge that a number of noble Lords have concerns about the sustainability of the not-for-profit sector, and I will return to that later. However, to seek to include a provision within the Bill to fund the sector for work outside the proposed legal aid scheme is, in our view, unnecessary. Not-for-profit providers have been eligible to compete for legal aid contracts since 2000, and while the proposed changes set out in the Bill will impact on the type of cases they currently handle, future contracts for work that remains in scope will continue to provide opportunities for such organisations to bid to deliver legal aid services.
It is also unnecessary to provide for such specific powers in the Bill, as the Ministry of Justice can provide grants to organisations promoting Ministry of Justice objectives. For example, both the Ministry of Justice—
Lord Goldsmith
Is the Minister able to tell the Committee whether any analysis has been done to see which areas of law are currently used to fund not-for-profit agencies, but which are now going to be taken out of scope? At the moment a lot of housing work, employment and welfare law is done. If that all goes out of scope, how will the not-for-profit agencies get any of the contracts that the Minister is talking about?
Lord McNally
They will bid for them. It is as simple as that. They are in a market where they will be able to bid for this work.
Lord Goldsmith
If the work that they are doing is out of scope, how do they get a contract? I have obviously misunderstood something.
Lord McNally
They will not get a contract for work which is not within scope of the Bill. That is why we keep on going round in circles. As the noble Lord said, he wants to put this sector back into the scope of the Bill. We do not want to do that.
Lord Goldsmith
The Minister said that the answer for the not-for-profit agencies is that they can bid for contracts. If at the moment they are bidding largely for work relating to housing, welfare and employment—things that will go out of scope—what contracts will they bid for? My specific question was whether the Minister or his department had done an analysis so that we might see what percentage of the money that the agencies have up to now received would no longer be available because it would be for work which was out of scope.
Lord McNally
Throughout the passage of this Bill, assertions are made about what is going to disappear and the nightmare of a country without CABs—to quote my noble friend. Unlike the noble and learned Lord, Lord Goldsmith, I cannot airily, as he did in his intervention, say, “£20 million? That is not enough. Perhaps we should put another nought on the end”.
Lord Goldsmith
I did not say that; with respect, the Minister should listen. I said that I did not know whether £20 million was enough. That is something that I would like to hear from the Minister, either now or at a later stage of the Bill.
Lord McNally
Throughout the Bill, we have tried to restructure legal aid so as to deal with the most vulnerable in our society in a way which we think is fair. My noble friend Lord Phillips referred to the squeeze being put on CABs by local authorities. There have been squeezes on local authorities and on the Ministry of Justice. The country is having to readjust to a considerable degree to what is available for many good causes, and that is why this debate is reoccurring in Committee.
As I say, I recognise the general concern about the future of such funding. I hope I can reassure the House by making it clear that the Government value the services provided by the not-for-profit sector and are committed to ensuring that people continue to have access to good-quality free advice in their communities. That is why the Government have launched the advice services fund and a review of free advice services. The Government have set aside £20 million to support the not-for-profit sector. That is about the seventh time of announcement but, to provide clarity for the noble Lord, Lord Beecham, I say that it is still the same £20 million. This fund will provide immediate support for the not-for-profit advice service providers to deliver essential services in debt, welfare benefit, employment and housing advice. An announcement on the fund and review was made on 21 November by my honourable friend Nick Hurd MP, Minister for Civil Society, in the other place.
It is important to recognise that legal aid is only one of several funding streams that not-for-profit organisations receive and that the future sustainability of the sector is a cross-government issue which this Bill cannot be expected to solve on its own. Accordingly, alongside the advice services fund, the Cabinet Office is conducting a review into local advice provision, looking at the funding environment for these services, likely levels of demand and how government can play a positive role. The Cabinet Office will work with other departments that either fund advice services or whose activities have an impact on advice services, such as my department, the Department for Business, Innovation and Skills, the Department for Work and Pensions, the Department for Communities and Local Government, and the Treasury.
The House may also be reassured to know that both the Prime Minister and the Deputy Prime Minister are taking a keen interest in these reviews. Stakeholder events with representatives from the sector, to gain their input into the review, have already been held by the Cabinet Office. I urge the House to await the conclusions of that review, which is expected in the spring. My officials are working closely with colleagues across government to support this important work. I hope this will reassure the Committee that I and my colleagues in government are united in our efforts to support the not-for-profit sector while it adapts to difficult changes in the funding landscape. I therefore urge the noble Lord to withdraw his amendment.
Legal Aid, Sentencing and Punishment of Offenders Bill
Lord Goldsmith Excerpts(12 years, 4 months ago)
Lords ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
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 Goodhart
My Lords, it is the turn of this side, but I wait with pleasure to hear what the noble and learned Lord has to say.
When I started my career as a barrister in the late 1950s, we had started with legal aid for only a few years. Up until then, aid from lawyers to poor people who were prosecuted for criminal offences mostly came from a group of barristers of poor quality who spent their time sitting in the court in the hope of being chosen by the defendant to defend them. Legal aid replaced all that, for civil cases as well as criminal, and we must never get anywhere near the previous situation.
This amendment is one of the most important in the Bill; indeed, it is in many ways the most important. The right of access to justice is a central feature of British justice, as it has been for centuries. We are rightly proud of that. We have over the years achieved the right of access to law. Now that right is under threat. Clause 1(1) is not adequate. This is made clear by the 21st report of the Select Committee of your Lordships' House on the Constitution, published on 17 November. That is a very distinguished committee. The four Members who have put their names to Amendment 1 include two members of that committee, the noble Lords, Lord Pannick and Lord Hart. They also include the noble and learned Lord, Lord Woolf, the former Lord Chief Justice and an outstanding judge of recent times, and, finally, my noble friend Lord Faulks, who is a relatively new Member of your Lordships' House but who has proved his high quality as a lawyer and a politician.
I am aware that in recent years the costs of legal aid have risen too far. This was recognised by Lord Bingham in chapter 8 of his book, The Rule of Law, which has already been mentioned. Steps are being taken by the Government to reduce costs in a justifiable way, but we must make it clear that access to justice is essential and that we cannot set up in this country a legal system which does not provide access to justice to those who cannot afford it out of their own pockets.
Lord Goldsmith
My Lords, I am glad that the noble Lord, Lord Goodhart, went before me, because I can wholeheartedly agree with the last sentiment that he has expressed—I am not surprised that we share that view.
Before I speak about my hesitation in respect of the amendment, I should declare, because I was unable to take part at Second Reading, that I am a practising lawyer, though not a publicly funded lawyer for a long time. I am also chairman of the Access to Justice Foundation and president of the Bar Pro Bono Unit, two organisations which try to help people who have legal need through the generosity of lawyers who are prepared to do that for free.
My reason for being hesitant about the amendment is that it does not go as far as the Constitution Committee, of which I am proud to be a member, said it should. There is a qualification of importance in the amendment, which is the reference to available resources. I was concerned that allowing that qualification might allow the damage to be done to the legal aid system and the access to justice that so many people need that we are fighting for.
I recognise the constraints. I also recognise that this was a formulation which the Government of whom I was a part put forward—I was not that happy about it then either, as it happens. However, there is a reason why I shall support the amendment: it is a way of testing what the Government actually believe in. It is a way of testing whether this Government are prepared to sign up, on the basis that there is not a blank cheque, to the principle that the Lord Chancellor has an obligation to secure justice for those who need it and to make sure that it is secured effectively. I do not believe that the noble Lord, Lord McNally, has a computer chip in his neck—I hope that I have known him long enough to know that that is not the way he operates—but I shall look forward with interest to two things during this debate. The first is what he says about this amendment. It will be telling in the extreme if he is not able to accept that, even though there will not be a blank cheque and even though it depends on the resources being available, his department should acknowledge a duty to secure that individuals have access to legal services that effectively meet their needs. That is a constitutional principle that the Government should at least support.
Secondly, I will look to see the answers to individual amendments and the issues that arise in relation to particular aspects of the Bill. For example, I am very concerned about welfare, where so much of the resource at the moment is provided not to well paid lawyers, barristers in Chambers or City firms of solicitors, but to legal advice centres. They are agencies that work on a shoestring and depend on legal aid, so much of which will be cut to them. The Government should be judged on the attitude that they take to that—not more fat for the fat cats, but helping the poor people of the country, the vulnerable and the less privileged, and ensuring the rights that it is one of the jobs of this House to provide.
Lord Phillips of Sudbury
The noble Lord has just made the case for the Government rather succinctly. That is the argument; what I am saying is that if you put the qualifying phrase,
“within the resources made available”,
into Clause 1, then everything is subservient to it. At the moment, the legal aid cost rises and falls—it usually rises but occasionally falls—according to the demands of the citizen upon it within the scope of legal aid availability. As I say, with this phrase in it the Government could say at the start of the year, “We are not paying out more than blank pounds for legal aid”, and that would be that.
Lord Goldsmith
Perhaps I might say to the noble Lord that I was concerned about precisely that point. I look to the noble Lord, Lord Pannick, and indeed to the Government, but I hope that the answer is in the requirement that it should be secured,
“in accordance with this Part”,
and that that therefore means that those things which I, too, hope will be in the Act at the end of this Bill’s passage will have to be secured, and will not be subject to any monetary qualification. I hope that that is the answer as it was part of my reason for taking the view, after my hesitation, that I would support the amendment.
Lord Phillips of Sudbury
I refer the noble and learned Lord to the fact that the sentence within the brackets which qualifies the obligation of the Lord Chancellor to secure includes the words,
“within the resources made available and in accordance with this Part”.
If they are in conflict—namely, that the resources made available are insufficient to meet the demands of this part of the Bill—then we are in a bit of a muddle, are we not?