Criminal Justice and Courts Bill

Lord Hart of Chilton Excerpts

Monday 28th July 2014 Lords Chamber

[Baroness Butler-Sloss (CB)]

My Lords, I recognise the points that were made on the other side of the House about delays and the deterrent effect on certain local authorities. There is a clearly a balance to be struck. But this legislation is a step too far. It is an unattractive step, as has been said by many other noble Lords. The Government are reducing significantly the right of a citizen to challenge flawed decisions of national and local government; they will not to be able to hold national and local government to account. That has come out loud and clear from earlier speakers, but I just reinforce it.

Whatever the disadvantages of judicial review may be, one must bear in mind that to go forward with this particular legislation will be a denial of justice to ordinary citizens—some of whom, as the noble Baroness said, are very vulnerable. I must ask the Government to step back for a moment and rethink whether there is a way forward to deal with delays and other problems without cutting the fundamental importance of the exercise of the discretion of the judge. As the noble Lord, Lord Carlile, said, only in a minority of cases is permission to go forward given. Those cases need to be heard. So I ask the Government to think again and step back. If I could use perhaps an unattractive phrase—back off on this one.

[Lord Hart of Chilton (Lab)]

My Lords, I want to speak briefly. I was going to save myself until Report, but this afternoon I was provoked into speaking by the reference by the noble and learned Lord, Lord Woolf, to Andrew Congreve. Andrew Congreve is a partner of mine at Herbert Smith. We both went to the post office to get our TV licences when we heard that the fee was going to be increased. Andrew Congreve was provoked by the threat that his second TV licence was to be revoked by the BBC. That threat stirred him into action. He has not been very well recently. It is only to be applauded that he should be referred to this afternoon: he is now in the Law Reports and will appear in Hansard.

I wish to make a second point. The noble Lord, Lord Horam, referred to delay, as did the noble and learned Baroness, Lady Butler-Sloss. Steps are being taken at the moment to speed up the process of judicial review. Only six weeks are allowed now to bring the case—to make the application. That is a substantial cut to the period of time that was allowed before. The new planning courts, filled with judges who are experienced in this area, now sit to hear these cases. They come on very quickly. In my recent involvement, the six weeks application was made, the leave was granted quickly and the hearing took place a week ago. That was dealt with with enormous speed. If that is the process that is to be fulfilled in the future, a lot of the problems about delay will vanish.

[Lord Pannick (CB)]

My Lords, I apologise to the noble and learned Lord, Lord Woolf, for missing the opening minutes of his speech this afternoon—indeed, I apologise to all noble Lords—as I attempted unsuccessfully to break the world record for running here from the Supreme Court.

When proposals for amendment of judicial review are brought forward by the Government—who are, of course, the main defendant in such litigation—they require the most careful scrutiny to identify whether they are indeed in the public interest and whether there is any good reason for Parliament to intervene in an area that has previously—and rightly—been left to judicial discretion. Clause 64 seems to me to fail to meet those criteria.

I have three objections to Clause 64. First, it focuses on whether it is highly likely that the outcome for the applicant would not have been substantially different. I emphasise the words “for the applicant”. The clause fails to recognise that judicial review is not concerned just with the narrow interests of the applicant. Judicial review serves the public interest, as the Committee has heard, by exposing systematic breaches of legal requirements by defendants. The court’s judgment—often a declaration—tells the Administration that what has been done is unlawful. Changes are then made; unlawful practices stop. Clause 64 will constitute a major impediment to that vital function of judicial review.

My second objection to Clause 64 is that a remedy may be appropriate in the interests of the individual claimant even in cases where the legal wrong may have made no difference. Last year, Lord Reed emphasised in the Supreme Court in a case concerning the Parole Board—the Osborn case of 2013, in volume three of the Weekly Law Reports, at page 1020, paragraphs 67 to 68—that the law requires public bodies to adopt a fair procedure to ensure not just that the right conclusion is reached on the merits of the individual case but that the subject of such a decision is not left with a sense of injustice that a wrong approach has been adopted in their case. Again, Clause 64 would prevent judicial reviews going forward for that purpose.

My third objection to Clause 64 is that it would require the court at the preliminary stage to conduct a detailed review of what would have happened had circumstances been different. That will of itself be time-consuming and expensive, and will inevitably promote satellite litigation. The noble Lord, Lord Horam, expressed concern about delay, and we are all concerned about speeding up legal procedures. Several steps have been taken; the noble Lord, Lord Hart, referred to them a moment ago.

It is important to say to the noble Lord, Lord Horam, that Clause 64 simply does not address the objective of speeding up procedures; nor will it achieve any such objective. One could have shorter time limits and arrange for speedier, expedited or shorter hearings—those are all processes that are being adopted. The Fordham inquiry for the Bingham Centre has made a number of valuable proposals.

Clause 64 simply does not address the topic; it is a blunt weapon, if removing delay is its objective. It is, for reasons that I have sought to explain, counterproductive, because it will lead to longer hearings at the leave stage and more appeals on the grounds of what would have been the result had a different approach been adopted.

Your Lordships have heard that Clause 64 has been criticised by the Joint Committee on Human Rights. Your Lordships’ Constitution Committee referred to the concern expressed by the senior judiciary during consultation that Clause 64 may well lead to unlawful administrative action going unremedied. The Constitution Committee therefore advised this Committee and the House to consider whether Clause 64 risks undermining the rule of law. I think that Clause 64 will impede the effective exercise of judicial review, and will do so for no good reason. I very much hope that the Government will think again before Report.

Criminal Justice and Courts Bill

Lord Hart of Chilton Excerpts

Monday 30th June 2014 Lords Chamber

[Lord Hart of Chilton (Lab)]

My Lords, for some inexplicable reason my name was omitted from the list of speakers for this afternoon. However, instead of commencing judicial proceedings for a review against the list-maker, I have accepted an invitation to speak in the gap, against an assurance that the Government Front Bench will not harass me if I stray slightly over four minutes.

I must disclose three interests. First, before I became a special adviser to two Labour Lord Chancellors, I was a solicitor in practice, specialising in planning and property law. Accordingly, I carried out a very large number of judicial reviews on behalf of both claimants and interveners. Secondly, I have personally been involved in judicial review proceedings in local planning matters in Suffolk, the first of which we won and in the second of which nine grounds have been found to be arguable and the case will be heard next month. I do not expect the Minister to wish me well, but I thought that I had better disclose that fact. Thirdly, until lately I was a member of the Select Committee on the Constitution.

Each year the current Lord Chancellor comes before the Select Committee on the Constitution for a discussion of current events. On 26 March, that was Mr Grayling, and one of the topics that we discussed was judicial review. The first question he was asked was: what was the problem that Part 4 of this Bill was designed to solve? He reprised his Daily Mail online article, talking about hundreds of cases becoming thousands and very naughty left-wing campaigners seizing control of the system for their own benefit. We asked him to reveal the hard data to support his allegations and he could not do so, but he repeated the number of anecdotal examples that he had trotted out in the Daily Mail, with one or two additions. However, the data do exist, and they show that the very high rise in numbers was down to asylum and immigration cases. The increase in those cases dwarfed the number of civil cases, which showed only a small percentage increase. As to the serial misuse of judicial review, personally I have never observed such a thing. I was interested to see that the senior judiciary said the same thing in its consultation response.

The permission stage in judicial review is an essential step in the process, whose object, according to the White Book, is to filter out cases that are “hopeless, frivolous or vexatious”. The small increase in the number of civil cases to which I referred may well be explained by the proper operation of the filtering process. However, even if one case goes through on an arguable basis, the substantial hearing often puts that matter right. In my experience, practitioners are well aware that hopeless cases without merit will be stopped at the permission stage, and it would of course be foolish to advise clients to incur wasted costs embarking upon misconceived litigation. Mr Grayling was asked whether he had any estimate of the reduction in the number of judicial review applications when his reforms are—if they are—brought about. He had none. Accordingly, I have concluded—as have many others, including the Joint Committee on Human Rights—that the case for these reforms has not been made.

My second point concerns Clause 64 of the Bill—the “highly likely” test. In judicial review, the fundamental role of the court is to perform a supervisory, not an appellate, jurisdiction. Until now the courts have resisted substituting their own view of the merits of the decision-maker charged by law to make the decision. The court is concerned only to see whether the decision-maker has contravened the law by acting in excess of the powers confirmed upon them. The new concept of “highly likely” is novel and may well fundamentally alter the position. It seems to me that this new concept inevitably will involve judges departing from their traditional role; they will now have to speculate on what decision would have been made absent the defect complained of. Furthermore, the “highly likely” test is to be examined at the preliminary permission stage, which is usually a paper-only exercise, done quickly and without lawyers present. As we have heard this afternoon, the judiciary fears that the new test will lead to a lengthy dress rehearsal hearing, with the service of evidence and oral argument by lawyers. Time taken and costs incurred will inevitably increase. Accordingly, this new provision, far from improving the law, makes matters far worse and seems to me to be designed to obstruct the pursuit of judicial review. It should be completely rejected.

The third point concerns changes to the rules on costs. Because of time I do not intend to say anything about that, except that there will be many amendments and I will support them. Matters should be left to the court, which is the current position, where the judges have discretion as to the nature, extent and cost of any intervention.

I conclude by opposing these proposals. Like the noble and learned Lord, Lord Woolf, I would like Part 4 to be taken away completely. The proposals are based on inadequate evidence; they undermine citizens’ rights to fight the abuse and misuse of power; and it is quite wrong to immunise the Government and other public authorities from effective legal challenge. Judicial review is often a key source of guidance for improving policy development and decision-making in the public service. These proposals do not bring about any improvement and they certainly do not serve the public interest. It is quite the opposite: they undermine it.

Crime and Courts Bill [HL]

Lord Hart of Chilton Excerpts

Wednesday 27th June 2012 Lords Chamber

[Lord Pannick]

My Lords, this amendment is in my name and the names of the noble Baroness, Lady Jay of Paddington, and two former Lord Chancellors, the noble and learned Lords, Lord Irvine of Lairg and Lord Mackay of Clashfern. It concerns the retirement age for judges of the Supreme Court. The Judicial Pensions and Retirement Act 1993 lowered the retirement age for the judiciary from 75 to 70, with an exception for those first appointed to judicial office before 31 March 1995. There is a strong case for raising the retirement age back to 75 for Supreme Court judges.

Judges are joining the Bench at a later age than their predecessors. It then takes time for them to rise up the career ladder to reach the Supreme Court, typically in their early to mid-60s. Since those appointed to the Supreme Court are, by definition, the very best of our judges, it is particularly unfortunate that we are disposing of such valuable resources after they have served a short time in office. This argument is specific to the Supreme Court. It is not the case that if the retirement age for Justices of the Supreme Court was to be raised to 75, the same must follow for the magistracy and for all levels of the judiciary in-between. The fact of the matter is that judicial wisdom and experience at the highest level is being lost to our courts, although not to the field of arbitration where retired judges from the Supreme Court are very much in demand for much higher fees than the Lord Chancellor’s department is prepared to pay.

There is no basis for concern that judges tend to lose their mental and physical powers after the age of 70 and up to the age of 75. It is important to recall that these judges are not hearing exhausting witness trials but considering stimulating points of law. Nor is there any basis for concern that a retirement age of 75 in the Supreme Court would result in a court that is less attuned to modern society. Experience is to the contrary. The Appellate Committee of this House and now the Supreme Court are far more innovative than the Court of Appeal, where the average age of the judges tends to be a decade younger.

Nor is there any basis for concern that a retirement age of 75 would hinder the promotion of diversity, an important value that we discussed last Monday. Despite most of the members of the Supreme Court retiring at 75 in recent years—the same was true of the Appellate Committee—there has been a steady flow of vacancies. The appointment of only one woman to the Appellate Committee and to the Supreme Court and of no one from the ethnic minorities, regrettable though that is, has been caused by the perceived lack of suitable candidates and not by any lack of vacancies. Indeed, increasing the age limit to 75 may well enhance the prospects for appointing more women, as so many female judges and lawyers have taken many years out of their careers for family care reasons and may find it more difficult than men to rise to the top by their early 60s.

In our report in March, your Lordships’ Constitution Committee recommended that the retirement age be increased to 75 for Supreme Court judges and for Court of Appeal judges. We advised increasing the retirement age because,

“proven judicial quality and experience are at a premium in the development of the law”.

This amendment focuses only on the Supreme Court because the arguments are especially strong at that level. I look forward to hearing from the Minister the Government’s view on this important topic. I beg to move.

[Lord Hart of Chilton]

I support the amendment for the reasons given by the noble Lord, Lord Pannick. I must declare two interests. First, I was a member of the Constitution Committee and heard the evidence and, secondly, some of my best friends are between the ages of 70 and 75. The evidence showed that there was a real risk that we were losing substantial talent from the Supreme Court. There was one particular example of losing someone just at his prime. It would be wrong for the Supreme Court to lose people of enormous proven energy and ability when they have just got into the driving seat of their full power, and to lose talent of that sort when people have risen to that point with only a limited time available to them in the Supreme Court itself.

[Lord Gilbert]

I hope that the Minister will explain why there should be any compulsory retirement age for Justices of the Supreme Court. I see no justification for it.

Legal Aid, Sentencing and Punishment of Offenders Bill

Lord Hart of Chilton Excerpts

Monday 23rd April 2012 Lords Chamber

[Lord Morris of Aberavon]

My Lords, I rise in support of the noble Lord, Lord Pannick. I am concerned about the reasons given in the Marshalled List, and perhaps the Minister can help the House. What are the financial implications if this amendment were accepted? The reason given is:

“Because it would alter the financial arrangements made by the Commons, and the Commons do not offer any further Reason, trusting that this reason may be deemed sufficient”.

If that is the sole basis for rejecting the amendment—or if there is any other reason, any other sinister matter, that the Minister is concerned about—perhaps he will tell us.

The noble Lord, Lord Pannick, has told the House that there are no financial implications to his amendment. The amendment states that the Lord Chancellor shall exercise his powers under this provision in order to ensure that individuals have access to legal services, and that it is entirely within his discretion,

“and subject to the provisions of this Part”.

This is a very carefully drafted amendment. It secures the Government’s financial position. The ultimate discretion is the Lord Chancellor’s, and I find it very difficult to foresee, in reality, any other financial implication.

[Lord Hart of Chilton]

My Lords, I have supported the noble Lord, Lord Pannick, throughout the process of this Bill. I do so again and I will not take up time to enlarge on anything that has been said thus far in support of the amendment. I simply risk causing the Minister convulsions by drawing his attention to the clock and indicating that we are well on our way to doubling the amount of time that the Commons took to dispatch four of your Lordships’ amendments. It also had the temerity to adopt a programme Motion that caused Sir Gerald Kaufman to stop in mid-track when he was saying:

“It is out of order in this House of Commons to accuse anyone of hypocrisy, so I—”.—[Official Report, Commons, 17/4/12; col. 208.]

We shall never know what he was about to say, but it shows how well we attend to amendments in this House and how poorly they do so in the Commons.

[Lord Elystan-Morgan]

My Lords, the whole exercise of this House examining the reasons given for rejecting an amendment from this place turns on the supposition in the first instance that the other place has in a mature, reasonable and well informed way applied itself to all the relevant issues. I therefore take very much to heart the submissions made by way of preliminary argument by the Minister. It is his case that the other place has done exactly that: namely, that it has looked in a fair, reasonable and mature way and has comprehensively dealt with those issues. I think that his argument is utterly fallacious in that respect.

Legal Aid, Sentencing and Punishment of Offenders Bill

Lord Hart of Chilton Excerpts

Tuesday 27th March 2012 Lords Chamber

[Lord Pannick]

My Lords, this amendment is in my name and in the names of the noble and learned Lords, Lord Mackay of Clashfern and Lord Woolf, and the noble Lord, Lord Hart of Chilton. Its purpose is simple—to implement more effectively the Government’s proposal to include an exceptional cases category for legal aid as set out in Clause 10. The problem which this amendment seeks to address is that Clause 10 is too narrowly drafted and will prevent the very flexibility that it is designed to provide. That is because the exceptional cases category set out in the clause applies only if the refusal of legal aid would amount to a breach of rights under the European Convention on Human Rights or would create a risk of doing so.

The difficulty, as the noble Lord, Lord Thomas of Gresford, stated when moving his amendment at the Report stage, is that it is inevitable that:

“All of a sudden a case will obviously require, in the interests of justice, to be supported by legal aid because of the wider interest that is involved”.—[Official Report, 12/3/12; col. 119.]

The case may concern a difficult and important question of statutory interpretation in the Court of Appeal or in the Supreme Court in a type of case generally excluded from the scope of legal aid. This amendment would confer a power on the director of legal aid to fund litigation if both of two conditions are satisfied. The first condition is that the director considers that funding the litigation is necessary—a strong term—to avoid injustice. I have adopted in the amendment the suggestion made in Committee by the noble and learned Lord, Lord Mackay of Clashfern, that the discretion should be defined not as a power to promote justice, but as a power to avoid specific injustice, a much narrower concept. The noble and learned Lord has asked me to express to the House his apologies for not being able to be here today.

The second condition which would need to be satisfied before the power could be exercised by the director is that the director considers that the case is an appropriate one for use of the funds, if any, made available for this purpose by the Lord Chancellor. That wording is designed to ensure that funding remains entirely within the discretion of the Lord Chancellor. The amendment, I emphasise, does not require additional funds to be found. The amendment leaves it to the Lord Chancellor to decide what funds, if any, to provide for this purpose.

If then the Lord Chancellor is not required to provide funds for this exceptional category of cases, your Lordships will wish to know what is the purpose of the amendment. The answer is that even if the Lord Chancellor were to say that no money is currently available for this exceptional category of cases—I hope that that would not be the case—it is vital to include a discretion in the Bill so that a statutory power exists to fund exceptional cases which can be exercised with the agreement of the Lord Chancellor when the economy improves.

Noble Lords should not approve a Bill confining legal aid in the manner proposed by the Government without including in it a provision which at least allows the Lord Chancellor, in his discretion, to provide some funding for the exceptional cases about which I am concerned. Parliament may not have a chance to address legal aid issues again for some time. I very much hope that even at this late stage the Minister will be able to accept the amendment, which confers power on the Lord Chancellor to allow funding for exceptional cases but imposes no duty on him to do so. I beg to move.

[Lord Hart of Chilton]

I support the amendment, which is also in my name. Interested bodies such as Citizens Advice, Justice for All and the Law Society have all pointed out that the Government’s exceptional funding safety net does not stretch wide enough for the reasons so clearly given by the noble Lord, Lord Pannick. I emphasise that the amendment of itself imposes no extra financial burden on the Lord Chancellor; it simply provides an opportunity for a discretion to be exercised if it is necessary—I emphasise the word “necessary”—to prevent a specific injustice occurring. If it was decided to use this power, the costs would be provided from discretionary funds made available to the director by the Lord Chancellor.

The amendment should be seen as a simple, practical and positive act of assistance to the Government, who, if they accept it, will have the flexibility to act in the circumstances provided for. Legislative opportunities for any Government are few and far between. In my view, this opportunity should be seized and the helpful amendment accepted.

[Lord Woolf]

My Lords, in the courts, many cases have three judges involved in determining what should be the outcome. If one judge gives a judgment on the provision which the other two judges think is totally convincing and where they have nothing useful to add, they just say, “I agree”. I agree with the speeches that have been made in support of the amendment.

Legal Aid, Sentencing and Punishment of Offenders Bill

Lord Hart of Chilton Excerpts

Monday 5th March 2012 Lords Chamber

[Lord Faulks]

I support the amendment. When it was debated in Committee, the Minister said that he would reflect on the observations of many noble Lords across the House who had contributed to the debate. It was one of many amendments that were considered by the Minister and he reassured the House on a number of occasions that he was listening.

In case I do not get an opportunity in subsequent debates, perhaps I may say now that I am extremely grateful to the Minister and his officials for their constructive approach to some of the issues and in particular one that concerned me; namely, the lack of legal aid for the victims of obstetric injuries—children with brain damage. The Government have responded and put down an amendment that we will debate in due course. However, that approach has not been reflected in his responses to this amendment. As the noble Lord, Lord Pannick, told the House, the amendment reflects the concerns of the Constitution Committee of your Lordships' House, but it contains an important modification by reference specifically to the availability of resources.

I am sympathetic to much but not everything that is in this Bill. I certainly share the Government’s aim to get rid of the worst excesses of the current litigation system and I understand the need for economies in the legal aid system. Nothing about this amendment conflicts with any of those aims. It will not in fact cost the Government anything. Why then is it important?

I consider that it affects the integrity of the Bill as a whole. If some areas of litigation are to fall outside the scope of legal aid, let us none the less ensure that the Bill retains the principle that is represented by this amendment; a principle that has, as your Lordships have heard, a recent statutory precedent. We are concerned about access to justice, which I hope I am not hopelessly romantic in regarding as a fundamental part of what it means to be British. I am uncomfortable with a Bill that declines to recognise this in the form of the amendment that has been put forward or in some similar wording. If he does not accept the amendment, I look forward to hearing the Minister explaining why he will not do so.

[Lord Hart of Chilton]

My Lords, my name is on this amendment. I support it for the reasons so admirably given by the noble Lord, Lord Pannick. Like him, I am a member of your Lordships’ Select Committee on the Constitution, which identified the importance of a statement of constitutional principle relating to access to justice.

As the noble Lord, Lord Pannick, has pointed out, the wording of the amendment is closely based on Section 4(1) of the Access to Justice Act 1999. Throughout the nine years that I saw those provisions in operation, budgetary restraint urged by the Treasury was always present because in those days, health and education were regarded as of higher priority. Nevertheless, legal aid was regarded as an essential element to access to justice and that principle constantly focused and concentrated the mind. The amendment seeks to do the same. It recognises budgetary restraint. It does not require a blank cheque much as some would wish it. It is moderate in tone and therefore realistic, but it enshrines an important constitutional principle that will overarch and permeate the whole of Part 1 of the Bill.

The Minister said in Committee and will probably say again that the amendment is unnecessary. That is not so. It is of fundamental importance to all of us and is absolutely essential.

[Lord Carlile of Berriew]

My Lords, like other noble Lords who have spoken, I remain in support of the principle behind this amendment. We are discussing the question of fairness in the distribution of legal aid and the availability of justice to members of the public. Like the noble Lord, Lord Faulks, I have campaigned in relation to clinical negligence—particularly perinatal negligence. Like him, I am grateful for the very realistic approach taken by Ministers and the clear indication and undertaking to make a concession on that matter.

However, one issue that concerns me greatly is the matters that will be debated under Amendments 8, 9 and 10—the question of scoping in and scoping out. I would be perfectly willing to see this amendment go by had we a commitment from the Government that scoping in would be added to the Bill. Had that commitment been made, I would have seen some evidence of overall fairness in the approach to legal aid being placed clearly in the Bill.

Like the issue we are currently debating, the issue of scoping in has been trailed in debate time and time again over a period of months. Frankly, I am shocked, particularly as a Liberal Democrat, that we have not yet heard from the Secretary of State that he is prepared to accept scoping in—a cost-free act of fairness, far away from attracting any issues of financial privilege. In the absence of such an indication, I feel constrained to support the amendment so ably moved by the noble Lord, Lord Pannick.

--- Later in debate ---

Moved by

[Lord Hart of Chilton]

3: Clause 4, page 3, line 31, at end insert—
“( ) The Lord Chancellor must ensure that the terms on which the designated person holds the post of Director are, as regards the making and termination of the designation and otherwise, such as to ensure the Director’s independence from Ministers of the Crown (subject to any direction or guidance given under subsection (3)) in relation to the carrying out of the Director’s functions under this Part.”

[Lord Hart of Chilton]

My Lords, this amendment is in my name and those of the noble Lords, Lord Pannick and Lord Faulks, and the noble and learned Lord, Lord Woolf. It arises out of concern expressed by your Lordships’ Constitution Committee, of which the noble Lord, Lord Pannick, and I are members.

The Bill will transfer responsibility for the allocation of legal aid from the Legal Services Commission to the Lord Chancellor’s Department. The allocation of legal aid will be the responsibility of a civil servant within the department who will be designated as the director of legal aid casework. The Minister made it clear in Committee that the intention is that the director should be independent in the performance of his or her functions, save that the director must comply with directions under Clause 4(3)(a) and must have regard to guidance under Clause 4(3)(b). The performance of the function will indeed require independence, given that many of the applications for funding will be in respect of claims, or potential claims, against government departments, including, of course, the Ministry of Justice itself. It is striking, then, that Clause 4 says nothing about independence.

At paragraph 15 of the Constitution Committee’s report we expressed concern as to whether sufficient guarantees of independence are provided in the Bill for the director of legal aid casework, who will have the responsibility within the department. Given the central importance of the functions of the director, it is appropriate to include in Clause 4 a recognition of this principle of independence. This will encourage the Lord Chancellor to focus his mind on this important question and ensure there is no doubt as to the role of the director. The amendment is not prescriptive. It leaves the detail to the Lord Chancellor. It recognises that independence is subject to directions and guidance. But it would, I think, be an improvement to say something about these vital matters on the face of the Bill itself. I beg to move.

[Lord Pannick]

My Lords, I support what the noble Lord, Lord Hart of Chilton, said, and I should like to add just two points. First, this amendment requires no expenditure of public funds. It is a constitutional amendment designed to ensure that a statement of the vital principle of independence is in the Bill. Independence is of central importance for the reasons that the noble Lord, Lord Hart, gave. Under the Bill we will have someone within the Ministry of Justice, a civil servant, who will perform the sensitive function of deciding when legal aid is allocated, even in relation to claims against government departments, including the justice ministry.

Secondly, I very much welcome Amendment 5, which has been tabled by the Minister. If noble Lords approve it, this amendment will require the director to produce an annual report which will be laid before Parliament. However, welcome as that amendment is, it does not address, far less rectify, the absence of any statement in the Bill about the independence of the director. Amendment 3 would meet the vital need for such a clear statement in the Bill.

--- Later in debate ---

[The Advocate-General for Scotland (Lord Wallace of Tankerness)]

The noble and learned Baroness puts her finger on it, as she often does. Yes, it is to be a civil servant. I indicated earlier that in such a crucial area of individual cases, that individual will be a civil servant appointed on merit, who will not be subject to ministerial interference. There is common ground that that is quite proper.

As the noble and learned Baroness rightly said, there are other aspects of a civil servant’s work where that relationship with the Minister is different. I hasten to add—I think the House has got the message—that there is no question of interference in the individual cases. I sought to make the point that incorporating the words “independent” or “independence” into the clause could upset the balance that would apply in other parts of the director’s work. I think the House would generally accept that there ought to be that relationship between the Lord Chancellor and the director. We do not wish inadvertently to skewer the whole architecture of this when the Government share what is at the heart of everyone’s perfectly legitimate concerns. We have enough clear provisions in the Bill to secure the independence of the director in making these individual decisions.

I ask noble Lords to reflect on that. We do not wish inadvertently to change the whole structure of the Bill, given that the point of concern is properly addressed by the prohibition on interference, buttressed by the many ways in which Parliament and others will be able to look at the way the powers are exercised. That is transparent. On that basis, I invite the noble Lord to withdraw his amendment.

[Lord Hart of Chilton]

I thank the Minister for that charming and beguiling presentation of the arguments that he seeks to address. I am afraid that it does not really address the central issue. Everybody agrees that this individual will be independent but the Government appear unable or unwilling expressly to say so. Every noble Lord who spoke in the debate wanted there to be some unequivocal statement in the Bill that this individual will be independent. The beguiling words have not answered that. It is welcome that there will be an annual report and I understand the arguments that have been put forward, but that is not sufficient to answer the central issue that there should be a manifest, unequivocal statement that the individual should be—and be seen to be—independent. I wish to test the opinion of the House.

--- Later in debate ---

Moved by

[Lord Hart of Chilton]

4: Clause 4, page 3, line 31, at end insert—
“( ) In this section “Minister of the Crown” has the meaning given by the Ministers of the Crown Act 1975.”

Legal Aid, Sentencing and Punishment of Offenders Bill

Lord Hart of Chilton Excerpts

Monday 5th March 2012 Lords Chamber

[Lord McNally]

My Lords, the principles underpinning this Bill include the need to establish very clearly the scope of civil legal aid services. We need to ensure that the funding of the scheme is sustainable in the light of the historic expansion of the scheme and the cost to the taxpayer. We have made difficult choices in order to focus legal aid in our priorities and therefore we will resist amendments that seek to expand the scope of the scheme. However, I accept that a case has been made by my noble friends Lord Thomas and Lord Phillips, and indeed by the noble Lord, Lord Bach. If they do not press their amendments this evening, I give a clear undertaking to the House to bring back our own amendment at Third Reading which I think will meet the concerns that have been expressed. I can reassure noble Lords that the Government accept the amendments in principle in so far as they would provide the Lord Chancellor with a power to add new civil legal services to Part 1 of Schedule 1. I hope that will allow the noble Lord to withdraw his amendment and await the government amendment at Third Reading.

[Lord Hart of Chilton]

My Lords, I accept the undertaking from the Minister.

[Lord Thomas of Gresford]

My noble friend will know that I have been urging this course upon him since the Bill was first drafted and I am delighted with the undertaking he has given.

European Convention on Human Rights

Lord Hart of Chilton Excerpts

Thursday 19th May 2011 Lords Chamber

[Lord Hart of Chilton]

My Lords, I am extremely happy to join other noble Lords not just in congratulating the noble and learned Lord, Lord Irvine of Lairg, on securing this topical debate today, but in paying tribute to his work on human rights. The Act that we are discussing will constitute a permanent monument to him far better than any statue we may later think it right to erect.

The Human Rights Act has enabled British judges to make their own distinctive contribution to the development of human rights law in Europe. It has also achieved major improvements in our domestic law when the state overreaches itself. Let me cite just a few examples: the right to attend peaceful demonstrations without interference from the police; a duty on local authorities not to house vulnerable people in insanitary and dangerous accommodation; a requirement for the DPP to clarify his position on prosecuting in cases of assisted suicide; and an end to discrimination on the grounds of sexual orientation.

A constructive dialogue has also developed between the British courts and the Strasbourg court, which has benefited the development of European human rights jurisprudence. Sometimes we have had to accept a correction from Strasbourg. A good example concerns the extensive and previously unchallengeable DNA database, as in the case of Marper in 2009.

Far more common have been situations in which the Strasbourg court has followed the British courts in rejecting a human rights complaint, having had the benefit of the reasoned judgments of our own Supreme Court. A good example of the interplay between our courts and Strasbourg is provided by the decision in the case of Horncastle, which has been mentioned twice in this debate. Our Supreme Court held that where Strasbourg decided a case with insufficient understanding of our domestic law, it could decline to follow Strasbourg. The Supreme Court felt that Strasbourg had failed in a previous decision to take proper account of our carefully crafted statutory code for the admission of hearsay evidence in criminal cases. Thus, the Supreme Court declined to follow Strasbourg and held that the defendant’s convictions should be upheld. Effectively, the Supreme Court was asking Strasbourg to think again. This is precisely how a constructive dialogue should develop.

Finally, a major triumph of the Act has been to change the culture of Whitehall. As your Lordships know, every Bill that comes before Parliament must be accompanied by a ministerial statement of its compatibility with convention rights. I know that Whitehall takes this very seriously. Much effort goes into the preparation of legislation to ensure that this statement can be made properly. This is a cultural change that does not hit the headlines but is a huge gain from the Human Rights Act.

Civil Legal Aid

Lord Hart of Chilton Excerpts

Thursday 19th May 2011 Lords Chamber

[Lord Hart of Chilton]

My Lords, when I arrived in the Lord Chancellor’s Department in 1998, my experience of legal aid had been limited to the pro bono activities of my firm, Herbert Smith, which, from a position of economic comfort, nevertheless looked across the City boundaries to the much poorer London boroughs of Tower Hamlets, Hackney and Islington, and made contributions to, among other things, local law centres. I shall come back to those in a moment. So it was only in 1998 that I realised the enormity of the legal aid problem, and that there was an asteroid with “legal aid” written on it advancing towards the Lord Chancellor’s Department.

Budgetary restraint that was increasing year by year meant that the greater priorities of health and education placed heavy restrictions on funds for legal aid. This was compounded by the fact that the first claim on such funds went to criminal cases where there was a priority to defend those who faced the prospect of loss of liberty. It was impossible to ring-fence a fund earmarked for civil legal aid. Yet, when I began to make visits to law and legal advice centres, to citizens advice bureaux in the inner London boroughs such as Tower Hamlets and Southwark, and to major cities outside London such as Bristol and Nottingham, I was immediately impressed by the need for greater investment in providing help and advice towards solving civil problems before they involved the courts.

The spiral of decline triggered by one event leading to another was all too obvious from the case studies I saw. For example, loss of income caused by unemployment could lead to debt, which in turn could lead to homelessness, which could lead to domestic violence and bring about marital breakdown, then to ill health in the short and the long term, both physical and mental, along with harmful negative effects on children and their educational performance, thus affecting their future life chances. Of course, the dominos do not all fall at the same time, but the spiral is well documented. I was particularly impressed by the work of Professor Dame Hazel Genn at University College London in her book, Paths to Justice, and she was a great help to the department in my day.

I also pay tribute to the selfless work of those in the law centres and agencies whom I observed at first hand. There were no handsome salaries to compare with the private sector and many were volunteers. Local authorities were unable to offer much help, and it was left to us to provide the seed corn. The law centres correctly pointed out that early advice and intervention could help break the spiral of decline. It was also self-evident that each of the components of the spiral brought with it economic costs for society as a whole. It therefore followed that early successful interventions would not only save costs, but also prevent problems escalating. A cost-benefit analysis outlined by Citizens Advice in July 2010 demonstrates the advantages of early advice in respect of housing, debt, benefits, employment and family. In monetary terms, the benefits are enormous and are real value for money, vindicating the principle and justifying the amount of civil legal aid as a worthwhile investment.

I am proud of the fact that the previous Government introduced the Community Legal Service and, notwithstanding the fact that they were faced with a growing need to effect savings in the legal aid budget, which they did, they always sought to protect social welfare law. My fear is that those who I saw making such a valuable contribution by providing immediate help to those in the most urgent need of it will now be faced with a setback from which it will be difficult to recover. In response to the suggestion that the voluntary sector will fill the gap left by the removal of civil legal aid in the proposed areas, I can see no evidence for such an assertion.

The legal profession can be justifiably proud of its record of pro bono activities. It has provided millions of pounds’ worth of endeavours in that respect. I have checked the policy of my former firm on what is now called corporate responsibility, and the corporate responsibility plan at my wife’s firm, Norton Rose. They are impressive policies, like many of those adopted by other City firms of solicitors, but they just will not be able to close the gap that will open up. In spite of the outstanding achievements of these policies, even all of the City firms put together will not provide enough to cover the expected shortfall in the inner London areas surrounding the City, let alone the rest of the country. We must also remember that local authorities are still strapped for cash and therefore unlikely to be able to help. I hope that the Minister will explain how advice deserts, as they have been called, in some of the most deprived communities in the country, are to be avoided. Without more civil legal aid, I cannot see how they can be.