Legal Aid, Sentencing and Punishment of Offenders Bill

Debate between Lord Goldsmith and Lord Elystan-Morgan

Tuesday 20th December 2011 Lords Chamber

[Lord Elystan-Morgan]

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

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

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

He went on to say that,

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

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

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

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

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

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

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

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

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

[Lord Goldsmith]

My Lords—

Parliamentary Voting System and Constituencies Bill

Debate between Lord Goldsmith and Lord Elystan-Morgan

Monday 17th January 2011 Lords Chamber

[Lord Goldsmith]

My noble friend Lord Anderson is right about that, which is one of the issues that needs to be dealt with.

On the essential principle, these two amendments raise the critical question: do we have to rush to judgment about the number of MPs, and how should that number be reached? I am going to listen with great interest to what the Minister says—perhaps he will come up with a better answer than the one that the Select Committee on the Constitution of your Lordships’ House was given—but at the moment there is no answer as to why, in those circumstances, the number should not be determined independently, or at least on a non-partisan basis, by rational judgment and by evidence. The case for that, in my view, is overwhelming.

[Lord Elystan-Morgan]

My Lords, I will speak briefly in support of the spirit of Amendments 59 and 60.

First, though, the suggestion has been made more than once in the past few hours that it is wrong in some way for this House to be concerned with matters that affect the membership of the House of Commons and how those Members should be elected. That, in my respectful submission, is an utterly absurd view. Parliament is one and indivisible. Whether we like it or not, we are wholly responsible as one of the Houses of Parliament—technically, the senior House, although that is not so in practice vis-à-vis the elected House—and we have a duty. That trusteeship means that we cannot avoid scrutinising in the greatest detail anything that affects the future of Parliament as a whole.

Having said that, I believe that, as has been spelt out clearly by the noble and learned Lord, Lord Goldsmith, both amendments have this in common: they are a cri de coeur for a grave and weighty constitutional problem to be decided on the basis not of a stab in the dark nor of instinctive feelings—no matter how genuine those feelings are—but of evidence.

The noble Lord, Lord Morgan, with whose speech I completely concurred, in a very scholarly dissemination of the problem—as one would expect from a distinguished historian—put the matter clearly in the context of history, whereas the noble and learned Lord, Lord Goldsmith, put the matter in the context of law. As one who has spent most of his time in the courts, in one way or another, I ask myself this question: if a grave and weighty decision is to be arrived at by any tribunal, how can that tribunal decide other than on the basis of cogent evidence and on the basis of questions such as what construction and weight should be placed upon that evidence and what conclusions and inferences should be drawn therefrom?

The argument that was put forward—with great respect, I think that I do no disservice to the noble Lord the Leader of the House nor, indeed, to the noble Lords, Lord Baker and Lord Tyler—was this: “We know exactly what the parties think about this and what they have said in their various manifestos, so there is no need to look any further”. That misses the point completely. There is every need to look further because we all have deep instinctive feelings, probably genuine and sincerely held, but they are nevertheless no more than feelings and instincts and are not based on evidence. Whether that evidence is gathered in the way that Amendments 59 or 60 suggest or in some other way, provided that it is gathered by an authoritative, independent and well qualified body, our duty in the situation will have been met.

There are two duties in ensuring that Parliament can decide. As the noble Lord, Lord Morgan, has said, the matter should be determined not by the Speaker’s Conference or by any other conference but by Parliament. First, Parliament must be able to arrive at an informed decision on the basis of the facts—indeed, the facts may well be in dispute, and Parliament will have to select which facts it accepts and which it does not. Secondly—this is equally important—the people of this country should understand why it was that their legislators came to that decision.

Parliamentary Voting System and Constituencies Bill

Debate between Lord Goldsmith and Lord Elystan-Morgan

Monday 15th November 2010 Lords Chamber

[Lord Elystan-Morgan]

This matter turns on a very narrow and, indeed, very simple issue. I can put it in one sentence; it is a question of what is meant or not meant by “a local interest”—not a private interest but a local interest. As far as I know, this is not defined in any statute or authoritatively defined in relation to the definition of hybrid Bills.

There are two issues, both of which are very simple, and I do not believe that one of them really arises. The first issue is whether there is a body that has a distinctive reality in relation to the words of the Companion that have been taken from page 556 of Erskine May. The second question is whether, if it has that distinction, it is dealt with differently from all the others that belong to that body. I take the second question first. There clearly is a difference in approach here in that the Western Isles and the Islands of Orkney are inviolate from any prospect of change. Many of the 600 constituencies that will remain may well escape unscathed, but they have no guarantee of being inviolate. Therefore, it seems to me that, as far as the second limb is concerned, one has clearly shown that a distinction is clearly drawn. There are 600 constituencies—assuming that 50 are lopped off—598 of which are dealt with in one way and two in another.

The first question—what is a local interest?—is not a question of a private interest. Local interest is defined in the Companion and, as I say, is taken verbatim from page 556 of Erskine May. There is no definition. In my submission, a local interest—if I am wrong in this, I will gladly come to the stool of penitence—is not a proprietary interest; it is an interest involving persons living in a locality as persons living in that locality. If I am wrong, it means that even though people living in the Orkneys or in the Western Isles are in a locality, nevertheless their locality status does not count. I believe, with very great respect, that the matter is as simple, clear and narrow as that.

[Lord Goldsmith]

My Lords, I am not sure that it is necessary for your Lordships' House even to go as far as that. I invite your Lordships’ attention back to the Motion of the noble and learned Lord, Lord Falconer, on whether the Bill should be referred to the Examiners, not whether it is hybrid. It is a very long time since this House has sat as a court determining difficult questions. The whole point of referring a Bill to the Examiners is for them to decide independently whether it is hybrid.

I should declare an interest as a member of the Select Committee on the Constitution. I have my name down to speak in the main debate. Given that I am taking up some of your Lordships' time now, I withdraw my name from that debate, but I underline the importance of determining what test your Lordships' House should use to decide this Motion. It is exactly as the noble Lord, Lord Howarth of Newport, has said, and as stated by the Speaker in another place when he ruled on the Local Government Bill in the 1962-63 Session and commented that,

“if it be possible for the view to be taken that this Bill is a Hybrid Bill, it ought to go to the examiners. There must not be a doubt about it”.—[Official Report, Commons, 10/12/62; col. 45.]

In the light of the discussion that has taken place, I invite noble Lords to consider the views expressed by the noble and learned Lord, Lord Falconer, and the noble Lord, Lord Elystan-Morgan, on the one hand, and those of the noble and learned Lord, Lord Lloyd, on the other, on whether it can conceivably be said that there is no doubt about it. I am sorry that the noble Lord, Lord Strathclyde, spoke in the way that he did about Mr Goudie, but in answer to my intervention he accepted that he is not saying this does not represent the honest and genuine opinion of someone who is experienced and learned in these matters. His conclusion was that it certainly could be said that this Bill was hybrid. That is why, in his view and that of the noble and learned Lord, Lord Falconer, it should go to the Examiners.

I wish to underline two further points. First, a lot has been said about whether the Bill affects private interests. The noble Lord, Lord Elystan-Morgan, is absolutely right; that is not the question. The definition in the 23rd edition of Erskine May is that hybrid Bills are public Bills that are considered to affect specific private or local interests. One cannot ignore this question of locality.

Secondly and finally, I draw attention to what Mr Goudie said in his opinion at paragraph 17. That for me is the critical question which has been raised before. It is not a question of whether or not these two constituencies should be subject to special treatment—for myself, I can well see why that should be so—but a question of what the position is regarding other constituencies. Like other noble Lords, I have received communications from people in different parts of the country—from Cornwall and the Isle of Wight—asking and expressing their views about being treated in a different way. Mr Goudie says in paragraph 17,

“it is … reasonably and properly arguable that the justification (whatever precisely it may be) is capable of being urged as being applicable to other constituencies”.

My understanding of the process which is taking place is that if the examiners agree that the Bill is hybrid, it will provide an opportunity for those other constituencies to put forward their case as to why they, too, should be treated in a special and favoured way. Good luck to them if they succeed in that endeavour. For those reasons, I will support the Motion.