Transparency International: Corruption Perceptions Index

Lord Goodhart Excerpts

Tuesday 6th September 2011 Lords Chamber

[Lord McNally]

My Lords, on that last point, which is slightly wide of the Question but nevertheless very relevant, the noble Lord, Lord Harrison, will have noted that my right honourable friend the Deputy Prime Minister recently initiated a public debate on this very problem of social mobility or immobility. I sometimes think that if we had had the social immobility that we have today I might not have got very far out of Blackpool.

On the broader issue, I understand the concerns about the perceptions, but it is a perception index that covered a period when there was a good deal of coverage of public life in this country—the problems with parliamentary expenses, et cetera. The Bribery Act and the actions taken by the Government to sharpen up the pursuit of corruption and economic crime will feed through into that index. Indeed, the OECD Secretary-General described the Bribery Act as reflecting the best international practice and praised the UK for being an active enforcer of bribery offences.

[Lord Goodhart]

My Lords, Transparency International UK, of which I am a member, published in June this year a document called Corruption in the United Kingdom. It concluded that corruption is a greater problem than has been recognised and is being recognised by Governments. Have the present Government considered that document and have they got the Serious Fraud Office adequately into the picture?

[Lord McNally]

Yes, my Lords, we have studied the document, and we keep close contact with Transparency International, which does a very effective job of keeping these matters before the public and before Governments. However, in this country there are two dangers. One is to say, “Oh, we don’t need to do anything because we are actually the ones who obey all the laws and it’s all the others who are corrupt”, and the other is to believe that we are somehow burdened down with corruption. Both extremes are wrong. There is corruption in this country, as in all countries, but it is not left untouched. As I say, the Bribery Act is in place, and my noble friend referred to the SFO, which is now playing an important part in the new structure of crime prevention set up by the Home Secretary. In consultation with law officers and other relevant colleagues, the Home Secretary is currently considering options for delivering the Government’s commitment to improve capability to tackle economic crime. The work of the Serious Fraud Office will play a key part in that strategy.

Corporate Manslaughter and Corporate Homicide Act 2007 (Commencement No. 3) Order 2011

Lord Goodhart Excerpts

Tuesday 5th July 2011 Grand Committee

[Lord Thomas of Gresford]

My Lords, it is helpful to put this order into some context. The corporate manslaughter provisions were considered by the Independent Advisory Panel on Deaths in Custody. When one looks at the statistics on page 9 of the report, which was a joint Ministry of Justice and Home Office report, one sees that in 1999 there were 643 deaths in state custody. That number has reduced in the past two years to 483 and 366, but that is a lot of people who have died in custody. It is important that there should be corporate responsibility, not simply for claims of negligence but for criminal claims. We are very pleased that this order is now being introduced.

I have two questions for the Minister. One relates to service custody. Do I take it that the Ministry of Defence could be criminally liable for a death in service custody abroad? The other matter that concerns me is whether the private organisations that provide prison accommodation and in particular transport come within the provisions of the Act, so that any default on their part means that they will be subject to criminal liability as well as to liability in civil law.

[Lord Goodhart]

My Lords, I would like to step in briefly on this matter. The law dealing with the liability of corporations for offences, or matters for which the corporation has been responsible, has been inadequate in recent years. In particular, to make the corporation liable for homicide, as in this case, or for other purposes, it has been necessary for it to be shown that not only was the corporation itself negligent but that negligence could be attributed to a directive member of the corporation. Therefore, I very much welcome this particular piece of this particular order.

I should mention also that a recent and important change in this law came into effect a couple of days ago with the Bribery Act, which makes liability for bribery subject not to any particular identification of any particular individual who is responsible but simply to the incompetence of the corporation itself. Therefore, I very much welcome this particular amendment.

[Baroness Royall of Blaisdon]

My Lords, I, too, welcome the orders. As the Minister said, at the time of the passage of the Corporate Manslaughter and Corporate Homicide Act 2007 there was much discussion about this issue in both Houses. It was absolutely right that the Bill should encompass this particular aspect, because it is important that an organisation can be found guilty of manslaughter if the way in which its activities were managed or organised causes a death. That is absolutely right. It is particularly important for the victims’ families because they need the certainty that such deaths can be properly investigated and authorities brought to justice.

I have only a couple of questions. My first question relates to the custody suites in the UK Border Agency and the Ministry of Defence. Is it intended that there will be a review of those specific holding and detention areas? Like the noble Lord, Lord Thomas of Gresford, I would like an assurance that those in the private sector who are responsible for the custody and transporting of offenders can also be brought to justice.

In the other place, a member of the DUP asked whether or not there had been discussions with the Northern Ireland Assembly. It was not absolutely clear from the Minister’s response what discussions had taken place with the Assembly. I realise that they are a separate entity but it is important that discussions should take place between the Assembly and the Government and I would grateful for information from the Minister.

European Convention on Human Rights

Lord Goodhart Excerpts

Thursday 19th May 2011 Lords Chamber

[Lord Goodhart]

My Lords, I am delighted that the noble and learned Lord, Lord Irvine of Lairg, has introduced the debate on this very important subject. I am delighted for two reasons: first, we have heard far too few speeches from the noble and learned Lord since the day in June 2003 when he was suddenly expelled from his office as Lord Chancellor; secondly, it was the noble and learned Lord, Lord Irvine, who, in the early days of the Blair Government, secured the enactment of the Human Rights Act. Without him it is doubtful that we would have had anything like as good an Act as we now have.

The purpose of the debate is to draw attention to the European Convention on Human Rights. The element of that convention and of the Human Rights Act on which I wish to concentrate—along with the noble and learned Lord and several other speakers in the debate—is the endless delay of British Governments to alter the law to allow some prisoners to vote in elections. This has been held by the European Court of Human Rights to be a breach of the prisoners’ rights. This has aroused aggressive responses from much of the media and many citizens, not least the Prime Minister.

However, if we think a little more about the situation, we may decide that this is a strong conclusion at which to arrive. There will be no particular pleasure for prisoners in casting their vote. In the open world, casting votes is a right, but it is also regarded by many as a duty—not a legally binding duty, of course, but a civil obligation. Many prisoners have never voted—sometimes because they have failed to register, sometimes because they have never bothered to go to the polling station. Prisoners getting towards the end of their sentences should be encouraged to take an interest in public life and what is going on outside the prison—that includes voting.

Providing opportunities to vote should be regarded not as some sort of gift or present to the prisoners but as part of the rehabilitation process. I do not believe that prisoners serving a life sentence or with many years to go before release should have a vote nor that the European Court of Human Rights would require them to but prisoners with, let us say, less than four years of imprisonment remaining should have the right to vote. Given that most forms of election in the United Kingdom run in a four-year cycle, this means that prisoners would be released while the winners of the elections in which they voted were still in office.

The issues involved in voting by prisoners reminds me of the great penal reformer from the 1920s to the 1940s, Sir Alex Paterson, and his dictum that,

“men come to prison as a punishment, not for punishment”.

The loss of liberty is the punishment, not harsh treatment in prison. The issue of prisoners voting is an interesting and unusual example of human rights. Voting, as I have said, is a mixture of right and of obligation. I do not think that it is an absolute right which can be exercised by everybody in prison but the duty element of voting needs to be kept in mind, as must the quotation from Alex Paterson. There is no reason why, for prisoners approaching release, deprival of voting should be regarded as a justifiable punishment. Instead, voting should be regarded as training for release. This is how the Government should handle it.

Bribery Act 2010

Lord Goodhart Excerpts

Wednesday 2nd March 2011 Lords Chamber

[Baroness Whitaker]

My Lords—

[Lord Goodhart]

My Lords—

[The Chancellor of the Duchy of Lancaster (Lord Strathclyde)]

My Lords, there is time for all these questions. Perhaps we can hear first from my noble friend and then from the noble Lord.

[Lord Goodhart]

My Lords, does my noble friend agree that bribery and corruption are hugely damaging to developing countries, not least to those in North Africa and the Middle East, and that that is a very important reason why the Government should not delay any further in bringing this Act into force?

[Lord McNally]

My Lords, the Government are taking strong action on anti-corruption, including the recovery and freezing of corrupt assets in the areas the noble Lord has referred to, but the message is clear from this House that there is a matter of national reputation involved in any further delay. I duly take note of that.

Criminal Justice System

Lord Goodhart Excerpts

Thursday 15th July 2010 Lords Chamber

[Lord Goodhart]

My Lords, I congratulate my noble friend Lord German on his admirable maiden speech, and thank him very much for delivering it neither in German nor in Welsh. Wales is a nation that is famous for its singers and its orators. I know that he must be a fine singer, as his earlier career was as head of music in schools in Cardiff. He is certainly a fine orator, as I can vouch having heard him at many party conferences and again today. As a Member of the National Assembly for Wales from its inception until this year, he can among other things give us very good advice on coalitions, because he was a Minister in the Labour-Lib Dem coalition in the Welsh Administration from 2000 to 2003. I also congratulate my noble friend Lady Hussein-Ece on her very moving speech, and I look forward very much to hearing both of them often in the future.

I will concentrate my remarks on the subject that I raised in a debate a few months ago during consideration of one of the massive criminal justice Bills which the previous Government used to introduce every six months or so—indeterminate sentences. Those sentences are known as IPPs—imprisonment for public protection. They were created by the Criminal Justice Act 2003 and modified by the Criminal Justice and Immigration Act 2008.

For the most serious crimes, the maximum sentence is life imprisonment and is usually subject to release on licence. For crimes that are not quite so serious, there is an upper limit to the length of the sentence, or there was until the Criminal Justice Act 2003. That Act introduced IPPs, which are in effect a form of life sentence. They mean that prisoners who have been convicted of certain violent or sexual offences may be retained in prison beyond the maximum duration allocated to the sentence for that particular offence, and will not be released until they have served first the tariff prescribed by the judge and then until the Parole Board is in due course satisfied that the risk of further serious offences has been reduced to an acceptable level. That may sound worthy, but in practice IPPs have turned out to be an expensive failure. The figures are quite startling. As of 4 June this year, the number of people who are currently subject to the IPP was 6,189. Only 93 of these were released on licence; the rest remain in prison. As of 5 July 2010, 2,860 prisoners subject to IPP were still in detention even though they were past the end of the tariff period which had been allocated to them. Assuming that there were no significant differences between 4 June and 5 July, only 3.5 per cent of those eligible for release have been released, which is extraordinary. What is the reason for this surprisingly small number of releases?

In theory, it could be that prisoners on IPP are a particularly wicked lot, and with some of them that is true, but a very powerful report, published 18 months ago by the Chief Inspectors of Prisons and Probation indicated that there were several other causes. They include the difficulty in identifying which prisoners present a serious risk of repeating their crimes, with the result that a good many prisoners are on IPP who should not have been there to begin with; the difficulty of providing training courses which have to be undergone by prisoners before they can be released on licence; the frequent movement of IPP prisoners from one prison where training is available to another where it is not; the failure to provide adequate expert evidence to the Parole Board to enable it to reach fair judgments of the risk of release of a prisoner on licence; and, finally, the delays in bringing cases before the Parole Board.

I should like to pay again a short tribute to Dame Anne Owers after her nine years of exceptional service. She was a worthy successor to the noble Lord, Lord Ramsbotham, who will be speaking in a few minutes. I have known her since 1990 when I was chair of a committee which appointed her the director of Justice, a job she filled with extraordinary success.

That however is not the only relevant report. Only a few days ago, the Prison Reform Trust published a report called, Unjust Deserts. The foreword to the report was written by my noble friend Lord Hurd of Westwell. That is a name of great distinction in this field because the noble Lord was an outstanding Home Secretary. The conclusions of the report state that the Ministry of Justice needs as a matter of urgency to review social and financial costs and benefits of IPP sentences; there needs to be much better provision of training courses for IPP prisoners; there must be additional resources for parole hearings to enable hearings to be held shortly after the prisoner reaches the tariff date and becomes eligible for release; and there must be training guidance for Parole Board members because the justice system needs to provide better public understanding about the levels of risk involved.

At present, IPP is not just a failure, it is an expensive failure. There are far too many people in prison at great expense who should never have had an indeterminate sentence to begin with or who should have been released on licence at an earlier date. To make IPP work properly would involve further expense, which could not be justified in present circumstances. There may be a case for keeping a small number of IPP prisoners where there is a real probability—not just a possibility—that they will commit serious offences if they are released. The Prison Reform Trust report recognises that IPP in its present state must surely go. It is clear that it was a great mistake in its form. It would be extremely expensive to set that form right. The only real solution for the time being is to get rid of it.

I am very glad that we have chosen the reform of the criminal justice system and its effectiveness as the subject for this debate. I am even more glad that the present Lord Chancellor has shown interest in reducing the number of people in prison. That is entirely different from the successive Home Secretaries of the previous Government who one after the other ratcheted up the length of sentences and invented new offences at every opportunity.

Defamation Bill [HL]

Lord Goodhart Excerpts

Friday 9th July 2010 Lords Chamber

[Lord Goodhart]

My Lords, I am proud to be able to speak in support of the Bill introduced by my noble friend Lord Lester. He and I were friends long before either of us was ennobled. He has a remarkable record of Bills introduced to your Lordships' House, where the Government of the day have adopted the Bill, provided it with time to enable it to go through the House of Commons or produced their own legislation for the same purpose. I hope and expect that this Bill will fall into one of these groups and will in due course—and I hope fairly rapidly—become law.

I will start with a comment on the speech made by the noble and learned Lord, Lord Hoffmann, who said that he approved of a number of matters in the Bill. However, his speech was concerned almost entirely with attacking the way in which defamation is handled in the American courts. That is well outside anything that is relevant to this Bill. The noble and learned Lord referred to the fact that the law in the United States was very favourable to the media. There is a good reason for this, which goes back to the 1950s and 1960s, when there was a great deal of agitation in the south of the US by people pressing for full civil rights to be given to the black citizens of that part of the country. Newspapers such as the New York Times, which supported the movement for civil rights for black people, were sued in state courts in the south that were wholly hostile to this view and imposed enormous damages for defamation on those newspapers.

The law in the USA was then changed to make it impossible for courts in the southern states to consider this. There has been no similar provision in this country, so whether or not one approves of what happens in the USA, it is based on entirely different reasons. The Bill is not concerned entirely with the media—far from it; it is also concerned with the rights of all people to avoid being overthreatened by the prospect of an action for defamation. One should look not at what happens in the USA but at what happens in this country.

The law of defamation in this country is complicated—probably unavoidably, because it involves the collision of tectonic plates. Article 10.1 of the European Convention on Human Rights states:

“Everyone has the right to freedom of expression. This right shall include freedom. … to receive and impart information and ideas without interference by public authority”.

Article 10.2, however, goes on to say that the rights under Article 10.1,

“may be subject to … restrictions or penalties as are … necessary in a democratic society … for the protection of the reputation or rights of others”.

Article 8 states:

“Everyone has the right to respect for his private and family life,”

but subject to,

“the protection of the rights and freedoms of others”.

There are very difficult problems where these tectonic plates collide. I give the American example of Tiger Woods—although there are similar examples in the UK involving people with careers in sport. Is his misbehaviour part of his private life? Yes, of course it is. Would media coverage in Europe of his misbehaviour be in breach of Article 8? Hardly, because the right to receive information in this case would be seen to outweigh the right to privacy. These are very difficult issues and will continue to be so. The result is that we have a very complicated and out of date law of defamation. As a lawyer who practised in fields other than that of defamation, I find it very complicated. However, we can work it out with help from briefings. I found extremely helpful a briefing by JUSTICE. I should say that I am a former chairman of that organisation. There are also excellent notes in the Library of your Lordships' House, and a very good briefing from Liberty.

Liberty disagrees with Clause 14, which reduces the number of cases where a decision will be made by a jury. I support Clause 14. Defamation is now the only type of civil case where juries may still make the decision. I believe in principle that jury trials should be confined to cases that may result in convictions for a serious crime. The use of juries in civil cases has been a complete disaster in the USA. Clause 14 retains access to a jury trial in some cases where the special circumstances justify it.

The briefings recognise the value of the Bill. Clause 1 strengthens the defence of public interest; Clause 8 extends the defence of qualified privilege; Clause 9 gives further defence to internet service providers and similar organisations; Clause 12 requires the courts to strike out cases where defamatory statements are unlikely to cause substantial damage to the claimant; Clause 13 gives power to limit libel tourism by refusing to hear cases where the defamation is published outside England and Wales and no substantial harm can be established in England or Wales.

The Bill refrains from some of the more radical changes—for example, while Clause 5 may make it easier for a defendant to prove the truth of the alleged defamatory statement, it does not propose that the burden should be on the claimant to prove the untruth of the allegations. That would indeed be a very controversial issue—too much so, I think, for inclusion in this Bill.

The Bill does not tackle two of the main problems for litigants in defamation cases: the risk that, if, as defendants, they lose, they will have to pay excessive costs, and the risk that they may also have an excessive liability for damages. Statutory instruments to reduce the level of contingency fees failed to get through the House of Commons before the election—perhaps because they went a bit too far. However, these are matters not for this Bill but for elsewhere.

I believe that the Bill will be a great improvement in a section of a legal system that, as it stands, is unpredictable and too expensive. I end by saying that I look forward to the maiden speech of the noble Baroness, Lady Hayter of Kentish Town, which will immediately follow this speech, and that of my noble friend Lord Willis of Knaresborough.

Queen's Speech

Lord Goodhart Excerpts

Thursday 27th May 2010 Lords Chamber

[Lord Goodhart]

My Lords, home, legal and constitutional affairs and local government provide enough material for several days of debate. We have heard very little about local government today, but as we have only eight minutes each we have to use our time carefully.

Therefore, I shall concentrate on one subject—civil liberties. I welcome the proposals in the coalition programme on civil liberties, including scrapping ID cards, extending the Freedom of Information Act, reviewing libel laws to protect freedom of speech, preventing the proliferation of new criminal offences, and other matters.

I also welcome the undertaking in that section of the coalition programme to set up,

“a Commission to investigate the creation of a British Bill of Rights that incorporates and builds on all our obligations under the European Convention on Human Rights”.

That clearly excludes the threat, which concerned me in the past, that new laws might be enacted which would restrict the power of the United Kingdom court to apply all the provisions of the ECHR. As the United Kingdom is bound by the ECHR as a member state of the Council of Europe, it would be absurd to restrict the power of our courts to apply the ECHR and leave litigants needing to take their case to the court in Strasbourg.

What should we add to the ECHR to make a British Bill of Rights? The most obvious addition is the right to jury trials for serious offences. That cannot be part of the ECHR because some countries do not have jury trials. That is an essential element of the United Kingdom's legal system and should be protected by its inclusion in the Bill of Rights. It should not be an unconditional and absolute protection, because there are exceptional circumstances in which serious offences may have to be tried without a jury. In Northern Ireland, some criminal trials could not safely be heard by juries during the Troubles, and the judge-only trials in Northern Ireland worked very well. In fact, they had some advantages for defendants over a jury trial because it was the duty of the judge to explain why he had reached a decision to convict, which was something that could be taken to the Court of Appeal. As recently happened in England, it may be necessary to have a judge-only trial where there is reason to believe that a jury will be tampered with or that previously a jury has been tampered with.

Moving beyond incorporating the right to a jury trial—or, perhaps even incorporating that right—may be difficult. Two years ago, I took part in a seminar organised by Justice about a British Bill of Rights. The seminar included lawyers from Scotland, Wales and Northern Ireland as well as England, and the general view held by those attending the seminar—I get the impression that this is a general view among the profession—is that a British Bill of Rights would not be acceptable unless it is approved by the devolved Assemblies as well as by Westminster. Of course, Scotland has always had its own laws and legal system, which differ considerably from the English law and legal system. As an example, the existing rights to jury trial differ significantly between England and Scotland. Some groups in Northern Ireland want to have a separate Bill of Rights for Northern Ireland on its own. Others in Northern Ireland no doubt disagree with that. Therefore, it would be doubtful if we could get a consensus in Northern Ireland for a British Bill of Rights. The question is: would the Bill be a British Bill of Rights in the strict sense—a Bill applying only to Great Britain—or a United Kingdom Bill of Rights?

There are also some gaps in the civil liberties section of the programme. It is a long-standing obligation under the European Convention of Human Rights to allow at least some prisoners to vote in elections. Understandably, that was not mentioned in the programme, but it is a hot potato that needs to be dealt with soon. I personally suggest as a simple solution that prisoners should have a vote if their sentence will expire within a period of not more than five years, so that they will have a vote in the election of MPs who will represent them when they emerge from prison.

Secondly, as my noble friend Lord Thomas of Gresford said, there is a need to look again at indeterminate sentences: so-called imprisonment for public protection. The indeterminate sentence has been a total and expensive failure, and it should simply be abolished.

Finally, on a different point, I hope that one element of spending cuts will be the cancellation of the building of new prisons. On prisons, I entirely agree with the views expressed by the noble and learned Lord, Lord Woolf, and my noble friend Lord Dholakia. Since crime has diminished in recent years, we should reduce rather than increase the number of prisons. We all recognise that the Ministry of Justice will have to cut its spending, but it would be far better for it to do so by cutting the construction of new prisons, or not extending existing prisons, rather than by cutting legal aid, which is of enormous importance and has suffered severely in the past few years. It should suffer, if possible, no more.