Public Bodies (Merger of the Director of Public Prosecutions and the Director of Revenue and Customs Prosecutions) Order 2014
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The Minister of State, Ministry of Justice (Lord Faulks) (Con)
My Lords, the purpose of the draft order is to give legal effect to the administrative merger that took place just over four years ago, on 1 January 2010, between the Revenue and Customs Prosecutions Office, which was the prosecuting arm of HM Revenue and Customs, and the Crown Prosecution Service. The decision to merge the CPS and the RCPO was announced in April 2009 by the noble and learned Baroness, Lady Scotland, who was the Attorney-General at the relevant time. The purpose of the merger was to create a strengthened prosecution service, to safeguard and improve the high-quality work done by both organisations in serious and complex cases and to provide efficiency savings. Those objectives have to a large extent been achieved.
The merger that took place in 2010 did not involve legislation. Sir Keir Starmer, who was then DPP, was appointed Director of Revenue and Customs Prosecutions as well. Since that date, the person holding the positions of both DPP and Director of Revenue and Customs Prosecutions—now Ms Alison Saunders—has been running the two offices under one umbrella. There is a single management structure and cases investigated by HMRC are now prosecuted by a specialist fraud division of the CPS.
Although the administrative merger has been a success, there are disadvantages in the two organisations still existing as legally distinct entities. First, it might give the appearance that the merger is incomplete and could readily be reversed. This might call into question whether the change is intended to be permanent. Secondly, it has practical implications for how the organisations work. The Government consider that a legal merger would bring about greater efficiency and effectiveness. That is why we are bringing forward the present draft order under the Public Bodies Act 2011. The Act provides for the functions of certain public bodies—listed in the schedules—to be abolished, merged or transferred. The effect of this draft order is to transfer the functions of the Director of Revenue and Customs Prosecutions to the DPP, thus putting the existing merger of the RCPO and CPS on a statutory basis.
As there is a requirement for Ministers to consult on proposals before laying a draft order under the Act, a consultation exercise took place in 2012. Views were sought on the proposal that legal effect should be given to the administrative merger and on whether the proposed approach would achieve the desired effect. Those organisations and individuals who commented—only eight did so—either supported the proposal or did not object to it. There was concern that the specialist expertise of the RCPO should not be lost; the Government agree that this is an important aim. As the consultation response explained, cases investigated by HM Revenue and Customs are handled within the CPS by the same specialist casework division that prosecutes the most complex and serious fraud and corruption cases investigated by the police.
An order made under the 2011 Act must serve,
“the purpose of improving the exercise of public functions, having regard to (a) efficiency, … (b) effectiveness, … (c) economy, and … (d) securing appropriate accountability to Ministers”.
I am grateful to the Secondary Legislation Scrutiny Committee for its careful consideration of the draft order, and I welcome its conclusion, which was expressed in these terms:
“the Government have demonstrated that the draft Order serves the purpose of improving the exercise of public functions and complies with the test set out in the 2011 Act”.
I do not think that your Lordships would welcome a detailed description of the draft order, which—as is so often the case—is by no means as brief as my summary of its effect might suggest. As for its effect, I cannot do better than quote these lines from the Scrutiny Committee’s report:
“The Government present a convincing argument that the overall effect of the transfer of the responsibilities of the RCPO to the CPS will result in streamlining the process by including it in a larger group where economies of scale can be identified from using prosecutors and administrators for a wider range of duties. Although the economies realised by this Order are comparatively small, the improvements to efficiency are more substantial, with the potential for the more flexible structure possible under the new arrangements”.
I commend the order to the Committee. I beg to move.
Lord Hope of Craighead
My Lords, perhaps I can insert a few words of welcome for the measure. I used to prosecute in the High Court of Justiciary in Scotland as an advocate depute. From time to time, cases arose north of the border where the Revenue wanted to prosecute in the High Court. As the Minister will know, in Scotland all prosecutions are in the hands of the Lord Advocate. I remember having to deal with officials from the then Inland Revenue and, separately, HM Customs, who were somewhat upset that they could not conduct those prosecutions themselves but had to hand the papers over to me or my colleagues so that we could conduct the matters on their behalf.
Of course, the order has nothing to do with the position in Scotland, which is quite unaffected, and it is unnecessary to do anything about it because it is well established that prosecutions will continue to be handled by the Crown Office under the overall supervision of the Lord Advocate. As the noble Lord said a moment ago, my experience was that efficiency was promoted by combining the prosecution element—the exercise in presenting the material in accordance with the best use of the courts—in one body. It seemed to me at the time rather odd that, south of the border, there was this division of functions, which gave rise to uncertainty in my mind as to exactly why it was necessary for there to be a separate prosecution system at all in the hands of the Revenue or HM Customs.
So, from a rather unlikely quarter, I admire what is being done administratively and entirely approve of the Minister’s suggestion that it should now be endorsed in legislation. I am sure that this is a good measure to promote efficiency.
Lord Beecham
I must begin by apologising to the noble and learned Lord. I had not noticed that he was here and obviously intended to speak; I apologise for that.
As I said, try as I might—and I certainly tried—I cannot find anything much to object to in the 19 pages of the order or, indeed, the 134 amendments embodied in it. The principle is clearly right and it is sensible to combine the two positions. However, although this does not quite fall within the Minister’s brief, there are still questions to be asked about the operation of the service as a whole, particularly in relation to staffing.
Of course we are only talking about part of HMRC for the purposes of the order, but within HMRC there have been significant staff reductions. To be precise, 1,697 staff left in 2012-13. That forms part of a significant reduction in funding of HMRC amounting to about £2 billion, or 16.5%, by 2015. The Chancellor’s reinvestment, as it were, of £154 million, which was announced with a flourish a couple of years ago, will not make much of an impact on that massive cut.
The question arises, therefore, about the implications for staffing on what had been the HMRC function. Will the staff be protected, or will there be reductions? The record of HMRC in recovering moneys is clearly not very good. The Public Accounts Committee criticised it for collecting more than £1 billion a year less in December 2012 than it would have done, had it had the relevant staff.
Another question in relation to staffing is: will those who will be employed in the completely unified structure be paid comparably to those with whom they will no doubt be locking horns in the private sector? For that matter, is there much of a two-way flow between the department as it is now constituted and the private sector? I am not talking about the prosecution side thus far, as far as I am aware, but concerns have been expressed about people coming to work for the Inland Revenue from the private sector and then going back to the private sector and so on. I am not asking the Minister to answer this today, but it would be helpful if he would let us know the position in relation to movement inward and outward of staffing, particularly on the Inland Revenue side.
One of the concerns raised—I do not think with any great force in the consultation—was about the need to maintain within the prosecution side expertise of Inland Revenue matters. The Government seem to be satisfied on that, and I am not challenging that assertion, but it underlines the need to keep an eye on matters. No doubt the Government will be reviewing the situation as it progresses.
A further point relates to the third arm of prosecutions in this country, which is the Serious Fraud Office, which comes under the aegis of the Attorney-General and is separate from the DPP and HMRC, which we are now discussing. Given the somewhat challenging history of the SFO in recent years, I wonder whether it might be opportune at some time to consider a further merger between that department and the structure that we are formally approving today. I am not suggesting that the Minister can give an immediate response to that, but it is something that his colleagues could look into. In principle, it might seem sensible to have a seamless prosecution service dealing with serious fraud and tax fraud and the other matters that come under the direct surveillance of the DPP.
Having said that, we certainly do not object to this order and wish the fully combined departments well in their endeavours on behalf of the public and the taxpayer.
Criminal Legal Aid (General) (Amendment) Regulations 2013
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Lord Lester of Herne Hill (LD)
My Lords, like the noble Baroness, Lady Kennedy of The Shaws, I am a member of the Joint Committee on Human Rights, and both of us took part in the evidence session with the right honourable Lord Chancellor and Secretary of State for Justice. That was just at the moment when the noble Lord, Lord Faulks, who has the misfortune to have to reply to this debate, was no longer able to be with us because he had been told that he was about to become a Minister. Therefore tonight we will have an excellent example of the poacher who has now turned gamekeeper, as it were, for Her Majesty’s Government. I will make one point that I put to Mr Grayling, which I do not think he answered in a very satisfactory way.
If the Government stick to their regulations, as they will, the consequence will be that more cases will go to Strasbourg for want of effective domestic remedies in this country. That is not something we should want; it is much better that effective remedies are provided in this country. Why do I say that? I have the cases of Sidney Golder and Reuben Silver in mind. Sidney Golder, many years ago, was a prisoner who thought that he had been defamed by a member of the Prison Service, and he wanted to go to a solicitor to see whether he could sue for libel. The Home Office said, “Sorry—you can’t go to a solicitor while you’re a prisoner”, so Mr Golder had to go to Strasbourg. The Strasbourg court said, years and years ago, “There must be an effective domestic remedy. Access to justice is a fundamental right, and prisoners are entitled to that right”. Therefore Golder led to reform of the prison rules, or was meant to do so. I was working in the Home Office with Roy Jenkins on the subject, and I am sorry to say that Home Office officials did not do as they were instructed, so that led to the case of Mr Silver.
Reuben Silver was an Orthodox Jew, and he wanted to know whether the food he was receiving in prison was kosher. He wrote a letter to the editor of the Jewish Chronicle marked “not for publication”. It was stopped on the ground that you must not write to the press. He also wrote to the Chief Rabbi, but was prevented from sending that letter on the ground that he had not known the Chief Rabbi before he became a prisoner, under the rule that said that you had to know the person beforehand. Therefore Mr Silver was one of my seven prisoner clients who went to the Strasbourg court complaining of the absence of a domestic remedy. The Strasbourg court had no difficulty in finding that the prison ombudsman could not provide and had not provided an effective remedy, and the same would be true today.
Those cases are not just routine internal disciplinary matters. I lost another case called Boyle and Rice in which they complained about being moved from one place to another and not having artwork, and so on. That is the kind of case which Mr Grayling is perfectly right to say should be dealt with by the ombudsman system. However, there are other, grosser, cases where that is not so. When I put this to Mr Grayling in evidence his reply was, “Well, I’m sure that in that sort of case you can find barristers who do no-win, no-fee cases”. That is no answer; for a prisoner to have to find such a barrister and to negotiate with the clerk and all the rest of it is patently absurd. One overwhelming reason to regret what has happened is that it will lead inevitably to more cases going to Strasbourg, which is not in the interests of anybody.
Lord Hope of Craighead (CB)
My Lords, I suppose that one should be grateful for small mercies and welcome what is provided for in Regulation 4(2) and (3): advice and assistance for issues relating to the release by the Secretary of State or for consideration for release by the Parole Board, and for proceedings that involve the determination of a criminal charge. However, they are very small mercies: these provisions were, of course, unavoidable. They are essential to protect against the risk of challenge by prisoners whose basic rights under Articles 5 and 6 of the convention were being infringed.
The point is this: there are very real grounds for concern as to what is being left out, a list of which is set out in paragraph 7.6 of the Explanatory Memorandum. For reasons of time, I will not go over the details, but one is bound to ask how robust the system of complaints is on which there is so much emphasis and to draw attention—as the noble Lord, Lord Pannick, has done—to the effect of the absence of legal advice, which always focuses the issue more directly and saves money by directing attention to where the problem really lies.
The other major gap is that to which the noble Baroness, Lady Kennedy, has drawn attention; namely, the position of the vulnerable, of whom there are so many, both male and female, in prisons and in young offender institutions too—for example, those with language or learning difficulties. I am struck by one of the provisions in paragraph 9.2 of the Explanatory Memorandum, which tells us that a note has been issued for distribution to prisoners to explain the changes to the system—but what provision is being made for those who cannot read or who do not speak English? Can we really be confident that steps are being taken to deal with their needs and give them the advice they need?
At the heart of this is something else, which, I suggest, is profoundly worrying: the increasing tendency to treat prisoners as some kind of an underclass. They are to be regarded as having surrendered their right, when they go into custody, to be treated like everyone else, except to the extent necessary to serve their sentence. We are all familiar with the debate about prisoner voting; but the effect of denying them the vote is really quite trivial when compared with what these changes will mean for many who are in a position that puts them at such an obvious disadvantage when compared with everyone else, having been locked up by the state.
Paragraph 7.4 of the memorandum states that the amendments aim to target limited public resources at the cases that really justify it. So far so good; but then there are the words,
“to ensure that the public can have confidence in the scheme”.
Those really are weasel words. What is the basis for that claim? Who are the public? What do they know about the effect of all these provisions on prison law? What about the prisoners, their wives, parents or children? What about the many organisations and individuals who really do care about the mistreatment of prisoners or their rehabilitation?
Some years ago Justice Breyer of the US Supreme Court observed in a lecture in London that it is not the job of judges to be popular. That is why we have judges who are not elected. If you want to be popular, you have to win votes: you must appeal to the majority. Of course, one way of doing that is to devalue the rights of the minority. When it comes to the use of resources, there is a temptation: they can be diminished or left to one side because the majority can be relied upon not to care about them and not to object. That is all about winning the confidence of the majority, which is what this sentence really refers to. It is not difficult to imagine what, in the wrong hands, this may eventually lead to. The line of thinking, therefore—the political philosophy that seems to underlie these proposals—is perhaps even more worrying than all the details which, in themselves, are so troubling. I join others in expressing my thanks to the noble Lord, Lord Pannick, for bringing this Motion before the House.
Baroness Butler-Sloss (CB)
My Lords, I, too, regret very much these legal aid regulations in relation to prisons. The amount concerned is apparently about £4 million. The cost of each lawyer to give advice or representation is a fixed fee of £220. As the noble Lord, Lord Pannick—who, in my view, has done the House a great favour by bringing this issue before noble Lords—has already said, that is achieved very often by a letter that resolves the problem.
I received a very interesting and useful e-mail from a committee member of the Young Legal Aid Lawyers, which is a group of students, lawyers and barristers committed to practising areas of law traditionally funded by legal aid, which includes prison law. They raised three points that I want to make to the House, which identify three vulnerable groups. They have been referred to already, so I hope that the House will forgive me for referring to them again.
One group of young people—they are children—have advocates from Barnardo’s, which is a step forward. As far as I know, however, they are not lawyers and do not provide that specialised help which, for instance, is needed in the resettlement of young people who come out of secure accommodation or youth prison. Those young lawyers are of course experts in dealing with these problems.
The second group is mothers and babies. The issue of mothers and babies has been raised already, but let me take a different point. As a former family judge, it is the baby that I worry about. There is no one to speak for the baby; he or she is removed from the mother, with all the emotional harm that is done to a baby in those circumstances, even if that mother and baby are reunited at a later stage. In that instance, a lawyer can help to organise it so that the mother and baby remain together.
The third group that has already been referred to is that of vulnerable adults. I will make two points. First, in our prisons there is a very high percentage of people with mental health problems. Some have single mental health problems; many have multiple problems. There is also no shortage of people without education and with learning disabilities. How on earth are they to cope with putting forward whatever is the issue that needs to be put forward if they do not have someone to help them? I doubt very much whether the internal arrangements or even the ombudsman will meet the specialised help which, for a very minor cost to the public, these lawyers can give. If, as the noble Lord, Lord Pannick, suggests, it is ideological, the money does not matter; but I suspect that for the rest of the Government money matters very much. It is not very much money and it saves a great deal. Therefore I urge not just the Lord Chancellor and the Secretary of State for Justice, but the Government generally, to rethink the balance of saving money and the damage caused by taking away this facility and the lack of appropriate legal advice and representation that to me, as a former judge, is a denial of access to justice.
Anti-social Behaviour, Crime and Policing Bill
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Lord Hope of Craighead (CB)
I want to add just a very few words to what the noble and learned Lord, Lord Phillips, has just said. If one stands back from this debate, everybody in this Chamber will recognise that there will be some cases, although no doubt very rare, where the state should compensate an acquitted person for the trauma, to which the noble Baroness, Lady Kennedy, referred, of being put into prison and detained there for perhaps a very long time on a completely false basis.
There are two ways of going about this. One is, as it used to be in this jurisdiction and still is in Scotland, to have an ex gratia scheme. That is, it is left to the Minister to form his or her own view in light of all the facts, without being constrained by any kind of statutory definition. In this jurisdiction—I mean England and Wales—we have departed from that and therefore we are up against the requirement of having to define in statute the nature of the exercise that the Minister performs.
The noble Lord, Lord Wigley, put his finger on the origin of what we are trying to do, which is to be found in Article 14.6 of the International Covenant on Civil and Political Rights. That states that when a final decision,
“shows conclusively that there has been a miscarriage of justice”,
the person should,
“be compensated according to law”.
There are three requirements for that: you should find that in the decision; it should show it conclusively; and it should show that there has been a miscarriage of justice. Our question is therefore what we mean by a miscarriage of justice.
I do not want to elaborate on what my noble and learned friend Lord Phillips said, but of course one bears in mind the presumption of innocence. That point emerges not just from the Strasbourg jurisdiction. As the noble and learned Lord, Lord Kerr of Tonaghmore, said in the Supreme Court in the case of Adams, on which many of us sat, the way in which the courts operate in this country does not require innocence to be demonstrated to the satisfaction of the court before a conviction is set aside. As he said,
“to prove innocence … is alien to our system of justice”.
Our methods do,
“not provide a forum in which”
that question can be examined. The question for the Appeal Court is whether the conviction was safe or unsafe.
There are some jurisdictions—the noble and learned Lord, Lord Kerr, referred to New Zealand—where a tribunal could address that issue. Of course, then it would be properly examined but we do not go that far; we do not need to because we have always believed that there was a presumption of innocence. That drives us back to the question of whether it makes sense for us to use the very words of the presumption to set out the test that is to be applied. Of course, one bears in mind the point that emerges from the European Court decisions that one should respect the presumption of innocence in the language that is used when dealing with the rights of an acquitted person.
Without elaborating, the better choice—to put it that way—is to follow the wording of the amendment that my noble friend Lord Pannick proposed, rather than the wording of the Bill proposed by the Government which has these various flaws in it that I suspect would lead to challenges one would wish to avoid.
Baroness Hamwee (LD)
My Lords, at the previous stage of the Bill, I said, not quite in these words, that I was glad to be able to follow those far more expert than I, as they did the heavy lifting on the amendment. I feel much the same today. Colleagues have said that they feel somewhat out of their depth on this subject. To that I say, “Yes, but you understand the concepts of proof of guilt and proof of innocence”. I congratulate the authors of the amendment, if that is not too presumptuous, and its mover, who seem to have found a way to achieve the Government’s aims, which as I understand them are greater certainty and to reduce costs—that is, not the costs of compensation but of proceedings.
As we have heard, there have been very few claims and fewer have been successful. It is not a matter of compensation for every failed prosecution, more for every quashed conviction—and there are very few of those. On those occasions, the sky has not fallen for the Government but it has for the individuals concerned. That is why compensation seems inadequate—I agree with the noble Baroness, Lady O’Loan, on that—but money is how we deal with it, so compensation is appropriate and important. For the integrity of the system, to which the noble Baroness, Lady Kennedy, referred, we must not let the sky fall because of the application of the test in this clause in the Bill.
Costs in Criminal Cases (Legal Costs) (Exceptions) Regulations 2013
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Lord Brown of Eaton-under-Heywood (Non-Afl)
My Lords, I greatly welcome the noble Lord, Lord Faulks, to his new Front Bench role. I have long been among his many admirers on the Bench and have benefited over many years from his invariably helpful and thoughtful submissions. I have not always been able to accept them, and it is just possible that I will not feel able to accept them tonight in regard to these amendment regulations.
The regulations remove legal aid from borderline cases. Borderline cases are those where there are no further identifiable investigations able to be carried out, yet where it is still not clear that the prospects of success are better than 50:50, but nor is it clear that they are worse than 50:50. The reason that neither is clear is because there is a basic dispute as to the law, which has yet to be clarified or developed in this particular way, or as to the facts or expert evidence.
It is absolutely critical to recognise and bear in mind in the course of this short debate that under the existing funding scheme—the scheme it is now proposed to abolish—borderline cases are funded only if they are either of significant wider public importance or of overwhelming importance to the applicant. In other words, the cases to which it is now intended to deny future funding will be either those with implications for the relationship between the state and a substantial number of individuals, or those that impact on such fundamental interests as an individual’s life, liberty, health, housing or something of that character. Surely, these cases are ones that must therefore justify a broader merits test than the bald test simply of establishing that there is at least a 50:50 chance of success.
I suggest that they justify funding so that the critical, disputed question—whether that be of the law, fact or expert evidence—can be clarified. However, instead of that, under these amendment regulations, those cases are to be condemned, deemed to be cases where the prospects of success are “poor”, or less than 50:50.
When I spoke last July on the Motion moved by the noble Baroness, Lady Deech, to take note of the effect of a whole raft of proposed government cuts in legal aid funding—which included those we are now discussing—I urged the Government to take particular note, among the innumerable responses to consultation, almost all of which were opposed for a variety of reasons, of the consultation response prepared by ALBA, the Constitutional and Administrative Law Bar Association, of which I was once privileged to be president. ALBA’s arguments were and remain cogent and convincing, not least as to the borderline cases. Among the material that ALBA presents is a 2012 study by Doughty Street Chambers—chambers that are prominent and highly respected in the field of public law and from which the just retired Director of Public Prosecutions came—showing that in the three years until then, borderline cases had achieved a substantive benefit for the funded party in between 47% and 56% of those cases, which was an average of just over 50%. I repeat, those cases are by definition important cases that affect either the public at large or the vital interests of an individual. Therefore, they are not cases from which the Government should be withdrawing funding. The suggested savings are uncertain; the price of achieving them is altogether too high.
Lord Hope of Craighead (CB)
My Lords, I join everybody else in welcoming the noble Lord to his position on the Front Bench—a very public-spirited move on his part, I am sure, but immensely encouraging to others who deeply regret the fact that the Lord Chancellor can be chosen in a way that removes his presence from this House and in a way that does not require him to have had legal experience. We have suffered somewhat from the lack of the sort of experience that the noble Lord can fortunately bring. It is a significant step forward and to be immensely welcomed.
I also thank the noble Lord, Lord Bach, for his Motion of Regret, which gives us an opportunity to express our regrets at this measure. I spoke, as did the noble and learned Lord, Lord Brown, in July. One of the things I said was that I hoped we would not have a succession of Motions of Regret because I hoped that these things would come up in the form of public Bills that we could then debate in depth. Unfortunately, that has not happened so I am afraid that we will have a series of Motions of Regret, one after the other.
I shall try not to repeat what others have said but the first point on which I want to comment is the borderline test itself, particularly the use to which it has been put. I have a feeling that it has a sort of arithmetical sense to it. When one talks about a borderline case, people at conferences will ask: is it above or below 50%? That is fair enough; that is what the test really means. If it is 50%, it is on the borderline. However, the problem, as has been explained by so many others, is that these things do not measure themselves arithmetically.
That brings me to a series of questions about how this will work in practice. How will fairness be achieved up and down the country? I understand that decisions are taken by independent funding adjudicators who look at the papers. We are not dealing with a single individual—it is difficult enough for one person—but one can imagine a series of people in different offices applying their minds to this test. Is any guidance to be given on how to approach the question of arriving at the borderline? If there is to be guidance, will it be made public so that we can comment on it and make suggestions, particularly if the system is to be reviewed in the future? There is then the very important point made by the noble and learned Lord, Lord Woolf: will there be any element of discretion or shading in a situation where it is difficult to say that it is exactly at 50%? Can one, for example, have a margin of error in favour of granting legal aid, as against not doing so? It is that kind of guidance, if the Minister could explain it, that would help to flesh out how this will work in practice.
The problem with the test, as has been said already, is that it introduces an unequal playing field. The state on the one hand, with all its resources, is in a position to apply a different test on whether or not it wishes to contest the claim, whereas the individual is caught by this very exacting test. There is the vital point about the development of case law. I recall a series of cases, which have already been mentioned, but because I was involved I dare to mention them again. There was the case of Purdy, but it was preceded by that of Pretty, who is unfortunately no longer alive. That was the original assisted suicide case. It was a very difficult case in which to say that she had a 50% chance of success. In fact, she lost. She went to the Strasbourg court and lost there again, but the advantage of her case was that it helped us to begin to develop jurisprudence in this immensely difficult subject, which all Members of this House will have to discuss again before too long. It cleared a lot of the ground, which made it easier to grapple with the Purdy case when it came along.
Then there were the succession of cases, to which the noble Lord, Lord Bach, has referred, in the field of social housing, which were also very difficult to predict. I bear a personal responsibility for this because I sat with Lord Bingham and the noble and learned Lord, Lord Nicholls, and, I think, the noble and learned Lord, Lord Walker, all of whom took one view. Three judges went one way but I turned the case around. Three others followed me and we were a majority of four to three. Who could have predicted that? Everyone knows—this is a commonplace criticism of the Privy Council jurisdiction in the Caribbean—that you need to know who the judges are and the way cases vary. How can one predict when it depends so much on personalities in cases that are so narrowly balanced, as they so often are in the highest courts?
The last point to which I want to draw attention is one of the difficult areas of our law, which has been repeatedly commented on. What do you do as judges, particularly in the senior courts, when you are applying Section 2 of the Human Rights Act, which refers to having regard to decisions of the Strasbourg court? Some of us have been fairly inclined to follow Strasbourg; others have not, in particular the noble and learned Lord, Lord Judge, who asked the other day in a lecture why we should do that. He said we should take an independent view. Again, one will have to guess what the judges are going to do with that jurisdiction, whether there is to be any change and who will be sitting on the panel. One can predict, looking at the Supreme Court today, who will vote one way or the other. That makes this whole idea of the borderline test extremely difficult to accept unless there is to be some really rigorous guidance, which I hope the noble Lord may be able to comment and guide us on. I would respectfully support the Motion that the noble Lord, Lord Bach, has moved.
Lord Beecham (Lab)
My Lords, it gives me great pleasure to join with others of your Lordships in extending very warm congratulations to the Minister on his first experience at the Dispatch Box. Of course, he demonstrated the reasons for his appointment very fully. The noble Lord is an ornament to the legal profession, just as his brother is an ornament to literature. We look forward on this side to many useful jousts over the next few months before—perhaps—there is a change of Government.
The Minister, as the noble Lord, Lord Pannick, said, has undertaken to do this work without remuneration. That is a notable sacrifice on his part. Of course it is consistent with the Government’s policy of acquiring most lawyers to do legal aid work more or less pro bono. I hope that he does not expect too many to follow his example with enthusiasm. However, that is not what we are discussing tonight.
My Lords, these regulations are yet another example of this Government’s apparently incurable propensity to legislate in haste and amend at leisure. It was, appropriately, only on 1 April last year that the Civil Legal Aid (Merits Criteria) Regulations came into force, and after a period of gestation of almost exactly nine months the present amending regulations were laid.
Why was it, we are entitled to ask, that the Government overlooked the apparent necessity to change the arrangements for borderline cases and make them ineligible for legal aid? How did they fail to spot the tidal wave of such cases, amounting—according to the estimate they now give—to all of 100 cases a year? Or the soaring cost to the taxpayer, which equates to as much as just under 0.5% of the legal aid budget?
After all, the noble Lord reminded us that, in the words of his colleague Mr Vara to the Delegated Legislation Committee,
“the motivation for change concerning borderline cases is not simply to save money. The value of our legal aid system cannot just be calculated in pounds and pence. Legal aid is a vital plank of our justice system”.
What a comfort these sentiments must be to the hundreds of thousands of people a year now denied access to legal aid; to the vast majority of practitioners and expert witnesses who are seeing their modest incomes slashed and are turning to other work; to the law centres that have closed, or, like the one in Newcastle which I visited on Friday—the only law centre between Kirklees in the West Riding and the Scottish border—that no longer provide legal aid. The Newcastle centre, which once employed five solicitors and nine staff, is now reduced to one solicitor, one full-time employee and four part-time staff, offering advice only, and only in two areas of law.
Criminal Defence Service (Very High Cost Cases) (Funding) Order 2013
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Lord Brown of Eaton-under-Heywood (Non-Afl)
My Lords, I do not think I have any relevant disclosures to make. I have not had a private client for some 34 years since I followed the noble and learned Lord, Lord Woolf, as Treasury Counsel, and I shall never have another.
This very afternoon, in answer to a Question about our trade prospects with China, the Minister, the noble Lord, Lord Livingston, said:
“The UK legal sector is a great strength … the rule of law and support from professional services are very strong. I will certainly seek to champion the legal sector going forward”.
I believe that I quote him accurately. I just wish that he would share his views and commitment with the Lord Chancellor.
For many years the criminal Bar has been the poor relation of the various specialist Bars. Over the past decade it has already suffered a series of cuts in public funding. Of course it does not earn for the Exchequer the riches that, for example, the commercial Bar earns when acting, very often on both sides of the litigation, in commercial disputes. However, I argue that the work undertaken by the criminal Bar is altogether more important than most commercial work. Most commercial cases result ultimately just in the adjustment of companies’ balance sheets and book entries; they rarely affect the quality of people’s lives. The outcome of criminal cases, by contrast, is generally critical to real people; usually their very liberty is at stake. More than this, the strength of the rule of law, and indeed public respect for it, depends above all else on the proper administration of the criminal justice system.
Very high cost cases, the subject of the swingeing further cut in fees under consideration here, are generally the most demanding of all the cases in the criminal calendar, as the noble Lord, Lord Carlile, has explained, and usually, and appropriately, they are undertaken by the elite of the criminal Bar. There already exist few financial attractions for those contemplating practice, or indeed already practising, in crime at the Bar. If you impose these additional cuts, that elite will fall away.
The Attorney-General himself is said to have acknowledged at a recent Bar conference that he no longer expected people of excellence to come to the criminal Bar. Consider, if you will, the effect of that upon the future quality of those who practise at the very heart of the criminal justice system. Consider its impact on recruitment, as the noble and learned Lord, Lord Woolf, has made plain. Consider its impact on the rule of law, and consider its inevitable consequences in terms of the future judiciary. Where shall we find the next generation of criminal judges? What indeed about the present position, as described by the noble Lord, Lord Carlile, with current cases going hopelessly awry because, understandably, Counsel are on occasion declining to continue with cases with their fees savagely and retrospectively cut?
Of course I recognise that the Ministry of Justice has many calls upon its budget and that we live in harsh economic times, but I just cannot accept that these difficulties justify cuts so inevitably and gravely damaging to the criminal Bar, to the administration of justice and to the very rule of law. If drastic economies in the legal aid budget are required, and if they must be found in relation to the kind of cases in question here, better far to my mind that the department revisit a measure long ago suggested but, regrettably, hitherto rejected: the ending of the automatic right to jury trial in complex and protracted fraud cases. Indeed, it is my own clear opinion that not merely would this save countless millions of pounds of legal aid funds, it would also make for better justice.
That, of course, must be for another day. In the mean time, let us surely strive to safeguard rather than destroy the quality of the existing criminal Bar. Let us annul, not merely postpone, this order and these regulations. I, too, support the Motion.
Lord Hope of Craighead (CB)
My Lords, along with others, I am extremely grateful to the noble Lord, Lord Carlile, for tabling these Motions so that we can debate these important measures. I should make it clear that I have never practised at the English Bar and never sat in an English court. My experience has been of practice, both civil and criminal, north of the border. However, although I have never sat in an English court, I have sat in a United Kingdom court, have had some experience of dealing with criminal cases and think that I can speak with some authority in support of the points which have been made so effectively by the noble and learned Lords, Lord Woolf and Lord Brown of Eaton-under-Heywood.
A cut of 30% on fees previously set by the Government surely must be regarded in the present financial climate as severe. I appreciate, of course, that the Minister and those for whom he speaks in this House have very little room for manoeuvre, given the cuts that already have to be made across the entire department. However, it would help if the Minister in his reply were able to put these two measures into their overall context. As I understand it, we are dealing here with cases that take a very long time and provide the advocate with the benefit of continuity of employment throughout a long period. As has been pointed out, these are complex cases which require unusual amounts of work outside the court room and are, in comparison with rates elsewhere in the system, better paid. I could therefore perhaps understand it if the strategy behind these measures was to reduce the cost of legal aid at this level, so as to keep any reduction at the lower levels, with which we are not concerned this evening, to an absolute minimum—or even to preserve the existing position at the lower levels. After all, it is at the bottom of the scale that there is real hardship. One hears not infrequently that the costs of travel and other overheads exceed the amounts payable as fees to the advocate. If there is any margin over that, it is often very small. I would be grateful if the Minister would say whether this is what the Government have in mind, and give us an assurance that there is no question of cuts of this dimension being made elsewhere across the system. That would be some reassurance to those who are deeply concerned about what the Government have in mind in the overall planning.
I will direct my remarks to the amendment set out in regulation 3(5) of the Criminal Legal Aid (Remuneration) (Amendment) Regulations 2013, as the provision which it seeks to insert affects the advocate’s freedom of contract. The standard terms already provide for their amendment within the terms of the contract. There is a contractual power to do this, but it is not entirely unqualified; this is not the place to debate how extensive that power is. However, when it comes to altering the terms for payment, I suggest that it is a question of degree. The stage may be reached when the amendment proposed, purportedly within the contract, is so great that it cannot be altered without the advocate’s agreement. In that situation, if agreement is not reached, the advocate would have a right to terminate the contract.
That leads me to consider what the effect would be if the amendment goes through. As I understand it, it would tie the advocate who agrees to this form of contract to the rates set out in Schedule 6. That being so, those rates can then be amended by a further order without the need for the advocate’s agreement. There is no need to alter the contract: what one does is to look at the schedule and alter the schedule by a further order. Once the advocate is tied in to such a contract, he or she has no escape from it, however much the reduction in the rates may be. As there is every prospect, if one is realistic, that the cuts now proposed will not be the last, the stage could be reached when the rates will become wholly uneconomic—indeed, some may say that this stage has already been reached. That amendment is a profoundly unattractive change in the existing arrangement. I do not understand why it is there and I suggest that the Government are taking a great risk by proceeding along these lines.
Members of the Bar, after all, are not civil servants. One of the strengths of the Bar, vital in our modern democratic society, is the independence of each one of its members from each other and from anyone else. That is an essential part of the system, which lies at the centre of maintaining the rule of law, which we all believe in. One of the characteristics of their independence is that advocates cannot be forced to accept terms to which they have not agreed or which they find unattractive. That leads directly to the consequences—to which the noble and learned Lord, Lord Woolf, drew our attention —which could be very far reaching and very damaging. Those already engaged in work of this kind might be well advised to withdraw from their contracts, lest they be sucked into an ever increasing pattern of cuts. There are many who might be attracted to this kind of work in other circumstances who would not wish to subject themselves to the reformed contract where they are subject to change without any further amendment of the contract itself.
I therefore have this further question for the Minister: what assurance can he give to those who may be willing to accept employment on these amended terms as to what the future holds for them? This is very relevant to the issue of recruitment. Schedule 6, as I have suggested, is open to further amendment. Are we to expect further cuts in these rates next year or is it proposed to do so within the life of this Parliament? If so, what further opportunity will there be—indeed what opportunity will there be at all—for consultation before any further amendments are proposed? What opportunity will there be for an advocate to withdraw if he decides that the rates that are then proposed are so completely unattractive that he is not prepared to carry on with that work? These are questions that all those engaged in this kind of work would wish to be answered and I hope very much that the Minister will be able to do so.
Lastly, on the point raised by the noble and learned Lord, Lord Brown, about jury trials, I come from Scotland where, as it happens, there is no right to a jury trial. It is up to the prosecutor to decide whether the offence should be tried by a judge alone in the sheriff court, with a sheriff and a jury, or in the High Court with a jury. The length of sentence is affected by that decision, but there is no reason why a case of very considerable complexity should not be tried before a single sheriff. The accused has no right to object to that. It raises the issue as to whether there is not considerable force in the point of the noble and learned Lord, Lord Brown, that we are reaching the stage where a jury trial in some of these cases may need to be reconsidered.
Lord Faulks (Con)
My Lords, my noble friend Lord Carlile has summarised the arguments against the statutory instruments with his usual clarity and vigour, and I do not wish to weary the House with repetition. I would, however, like to add a few words and in doing so should declare an interest as a practising barrister. I am not a barrister who does criminal cases and I very rarely do cases where legal aid is involved. However, I have sat until recently as a recorder in the Crown Court and am thus familiar with our criminal justice system.
I entirely understand the desire on the part of the Government to reduce spending on legal aid. The LASPO Act was the Government’s first move in reducing costs. There is no reason why lawyers should be in any way immune from austerity, nor should justice be recognised as some sort of special case, up to a point. Nevertheless, what troubled many noble Lords in scrutinising that Bill as it went through the House was the risk of real injustice not to lawyers but to those who encountered the system and would be at risk of being denied access to justice. The Minister reassured those of us who were anxious, particularly in relation to Part 1 of the LASPO Bill, as it then was, and made some important concessions. However, the impact of the Act is going to need careful watching to ensure that real injustices do not result.
Anti-social Behaviour, Crime and Policing Bill
Lord Hope of Craighead Excerpts(11 years, 3 months ago)
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Lord Hope of Craighead (CB)
My Lords, I had not intended to say anything about this amendment, but two points occurred to me in listening to the noble Baroness, Lady Berridge, which I mention in case they might be of any assistance to the Minister in looking into the matter. First, I should have thought that it would be plain that if the individual is not capable of entering into a marriage at all, because he or she was underage or simply did not have the mental capacity to agree, one could not treat that as a valid marriage for the time being until it was annulled. There may be something to be said for some categories which are not in that very stark situation; where there was initially the capacity to marry, but there has been enforcement or something like that which has persuaded the individual to enter into it. It is rather as in the law of contract: there are some contracts which are void ab initio and some which are voidable. There may be room for that distinction: no doubt the Minister will wish to research that further.
Secondly, when I was at the Bar in my junior days I used to do cases in Scotland which were described as “nullity of marriage cases”. The ground of nullity in those cases was lack of capacity to consummate the marriage. An individual who found that the husband or wife could not consummate the marriage was entitled to come to court and if that fact could be proved—it was very often not disputed, which was just as well—the marriage would be set aside. I do not know how the law is in England, but there must be a similar process where the marriage cannot be consummated. It may be that those cases are precisely in the category that Amendment 11 is talking about, where somebody has a choice. An individual who finds that the marriage cannot be consummated may feel that the marriage should go ahead for other reasons—simply because they enjoy living with each other. Nobody forces them to apply to the court to have the marriage set aside. It may be that there is an analogy there which can be drawn upon, to follow up the point that the noble Baroness is making.
Baroness Thornton
The noble Baronesses, Lady Berridge and Lady Cox, have raised very valid but different points. The issues to do with property and assets and differential treatment are very valid indeed, particularly with regard to Amendment 11. I look forward to hearing what the Minister has to say because these issues need to be addressed.
Lord Hope of Craighead
My Lords, I would like to make four brief points. The first is whether there should be a test in the statute, taking account of what has been said by the judges so far. The second is a brief word about the standard of proof, to which my noble and learned friend Lord Brown of Eaton-under-Heywood referred. The third question is the wording of the amendment, and the fourth is the wording of the clause that the Government are proposing.
On the first point, I am very much in sympathy with the points made by the noble Lord, Lord Faulks. Particularly in view of what the Divisional Court said following what the majority said in Adams, there is a bit of confusion as to the way the judges are going. I must say that I would have hoped that Adams had settled the matter, admittedly by a small majority, but then we find the Divisional Court in Ali using a formula which I do not think fits with the majority view in Adams very well, if at all. Given that state of affairs, the Government are probably right to say that the time has come for the matter to be laid down in statute. This has a bearing on a point with which I am inclined to agree with the noble Lord as well. We are dealing here with compensation, not the criminal law as such, and therefore while one has a concern about the presumption of innocence, it is not going to affect the individual’s position as to whether or not he is to be convicted.
I support the Government in principle on those points and, coming to my second point, I also support them on the standard of proof. The wording of Article 14(3) uses the phrase “shows conclusively”, which points the way to the standard of proof that the new clause is adopting. I would be very uneasy about reducing it to a balance of probabilities test in view of the background of the article and the purpose of the provision, which is to provide for compensation in exceptional cases which really do justify that kind of award.
On the third point concerned with the wording of the amendment, I am bound to say that I am troubled by it. I hope that the noble Lord, Lord Beecham, will look at it again. What he has done, as I understand it, is adopt the formula that was used in Ali by the Divisional Court. If one looks more closely at the judgments in Adams, it will be found that the majority were not adopting a formula that, as my noble and learned friend Lord Brown rightly pointed out, is used more or less every day in the court of criminal appeal. It was not in the mind of the majority—I have to say that I am speaking as a member of that majority—that any conviction which is shown to be unsafe should justify an award of compensation; not at all. Lord Bingham, who started thinking about this before we came to it in Adams, was talking about some kind of failure in the trial process, something quite fundamental which has gone wrong. The example mentioned by my noble and learned friend Lord Brown was the person brought to trial here who should never have been brought to trial here at all. That is quite a strong example. One is looking for something different from and more exceptional than the Ali test indicated. I suggest that the noble Lord, Lord Beecham, and his advisers look more closely at what the noble and learned Lord, Lord Phillips, said in paragraph 55, supported by the noble and learned Baroness, Lady Hale, in paragraph 114, the noble and learned Lord, Lord Clarke, in paragraph 217 and myself in paragraph 74, indicating that what was really being looked for was something that is so fundamental that it undermines the evidence so that no conviction could possibly be based on it. The words “so undermined” and “could not possibly” were intended to indicate a much tougher test than the test that rightly is of concern to my noble and learned friend Lord Brown.
Coming to the wording of the Government’s proposal in Clause 151, it may be a practical point, but it is a fundamentally important point. I have here the letter which was written by the noble Lord, Lord Taylor of Holbeach, to the noble Baroness, Lady Smith of Basildon, on 7 November. Quite rightly, he is pointing out for everybody’s information that the applicant will not need to prove anything. What he is saying is that the requirement that the clause imposes is something that will be satisfied simply:
“they will not need to provide any information apart from the Court of Appeal judgment quashing their conviction”.
Very well; that is the material to which you look. The individual does not have to prove anything except simply tender the judgment of the Court of Appeal and say to the Minister, “Here it is, see what you can make of it. Does it come up to the required standard?”.
That brings me to one of the cases which the noble Baroness, Lady Kennedy, was looking at. It is the case of Sally Clark, which was one of the most tragic cases, I think, that has ever come to the court’s attention. Noble Lords may remember that she was the lady who had two babies, each of whom died. Initially, it was thought that this was due to cot death. The authorities were not satisfied with that; it looked like too great a coincidence. The matter was referred first to pathologists, who conducted post-mortem examinations of both infants. Then it was referred to Professor Meadow, who looked at the statistics. He came up with a statistic that the situation of two infants dying and their deaths being attributed to cot deaths was really stretching the imagination far too far, because if one has a second death following on the first, the chances are one in 74 million against its being due to natural causes. That startling statistic was the basis of the Crown case before the jury. The jury convicted.
Subsequently, the case first went on appeal and the conviction was upheld by the Court of Appeal. It was then referred by the Criminal Cases Review Commission back to the Court of Appeal. The significant point is to look at the way in which the Court of Appeal dealt with the argument. The noble and learned Lord and his advisers may care to see the way in which the narrative proceeds in the case of Meadow, which was reported in 2007 Queen’s Bench 462. The relevant facts can be gathered from paragraph 102 in the judgment of Lord Justice Auld and the opening remarks of the Master of the Rolls, Sir Anthony Clarke.
The point is that the basis on which Sally Clark’s conviction was set aside was non-disclosure of relevant material by the biologist who conducted the biopsies, the post-mortem examinations of the infants, particularly one point relating to the second of the two infants to die. It was a non-disclosure point. With great respect to those who are proposing Clause 151, I do not think that it could possibly satisfy the test which Clause 151 sets out. The Court of Appeal did not go ahead to examine the significance of the evidence of Professor Meadow. It did not have to, because it found that non-disclosure was enough for the conviction to be unsafe and that was the standard being applied in that case.
Of course, there was no declaration of innocence; that certainly would not happen in our criminal Appeal Court. It was on the basis that it was unsafe on the ground of a non-disclosure. However, if one had gone on to look at the statistic, which was grossly irresponsible—indeed, Professor Meadow was taken to task by his professional body and found guilty of misconduct; serious misconduct was set aside, but he was found guilty of misconduct—that was evidence that should never have been placed before the jury, because the one point that he failed to disclose was that the statistic did not apply in a situation where two children were related. It was a statistic for when the children were unrelated, which was not the case that was being dealt with at all.
That raises a very real practical issue. The case destroyed that poor lady’s life, as we all know. I am haunted by the picture of her coming out of the court, having been successful in her second appeal. She had totally changed physically from when she went into prison and, as we all know, she later took her own life. If there was a case that called for compensation, surely that was it. I do not know what happened, as the case was decided early in the decade, before Mullen, which was the conviction from, I think, 2000 that was set aside. The question of the Mullen test did not arise and I think it was decided under some ex-gratia system, although I do not know the facts. However, that is not really what should disturb the Minister. The question is whether the test is one that could face up to that kind of case, which everybody would feel should see compensation.
It is a practical problem, and I support the Government a long way in their thinking. For reasons I have attempted to explain to the noble Lord, Lord Beecham, I am not in favour of his amendment, and would certainly not support it in its present terms, but I do ask the Government to look more carefully at their own version of the clause.
The Minister of State, Ministry of Justice (Lord McNally) (LD)
My Lords, I will correct the noble and learned Lord, Lord Hope, on only one point. I think that at one point he referred to me as noble and learned. Nothing could be further from the truth—I think, in fact, I am the first non-lawyer to rise to his feet in this debate. But we are none the worse for that, because this is about getting it right. I am very pleased that the way in which the debate unfolded showed what a challenge the Government are trying to meet. I have one little chide for the noble and learned Lord, Lord Cullen: he talked about the Government’s “ostensible” reasons, which implies that there are some less worthy reasons behind the legislation. Again, as the debate unfolded, it became clearer that we are trying to deal with some genuine problems. I believe that this debate will stand very good reading. We are all going off on recess and so will have the opportunity to study very carefully some very detailed speeches. The best advice that the noble Lord, Lord Beecham, gave was that we should all listen carefully to the arguments. That is certainly what I intend to do.
We are going to some fundamental questions. The noble and learned Lord, Lord Cullen, questioned whether Parliament has the right to override a carefully calibrated judgment of our Supreme Court. As I say, I am not a lawyer but I am, if I have any other description, a parliamentarian and have always thought that Parliament has that right, however well calibrated the judgment might be. The noble Baroness, Lady Kennedy, was very keen to see it as an affront to that fundamental principle of the presumption of innocence and, indeed, as an affront to our common law. The noble Lord, Lord Pannick, warned us that it was a breach of the European convention. Then, almost like the 7th Cavalry, the noble and learned Lord, Lord Brown, came over the hill with what sounded like, even from my layman’s position, a magisterial dissection of the arguments. I hope and advise that all participants in the debate, and wider readers, read what the noble and learned Lord, Lord Brown, had to say. He pointed out clearly that compensation was not available in all circumstances and that only a limited number would qualify. I will not try to repeat his arguments, as I want to study them carefully.
Court of Appeal (Recording and Broadcasting) Order 2013
Lord Hope of Craighead Excerpts(11 years, 4 months ago)
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The Minister of State, Ministry of Justice (Lord McNally) (LD)
My Lords, when I first looked round the Committee, I thought we were at a casting session for a future television programme.
The order before us today sets out the conditions under which the recording and broadcasting of footage in the Court of Appeal Civil and Criminal Divisions will be permitted. Before setting out further details about this order, I will briefly explain some of the background to this policy.
There is evidence to suggest that the more informed people are about the justice system, the more confidence they will have in it. Few people have direct experience of court proceedings, and public understanding of how the justice system works is limited. In principle, the majority of our courts are open to all members of the public who wish to attend, but in practice very few people have the time or opportunity to see what happens in our courts in person. The justice system is viewed by many as opaque and complex. We believe that we should make our courts more accessible and make it easier for the public to understand court proceedings.
Increasingly, people rely on television and the internet for access to news and current affairs. It is right to respond to changes in technology and society and to allow cameras into our courts, but it is important to do so in a balanced way which will protect the individuals involved and preserve the dignity of the courts.
Currently the recording and broadcasting of footage in courts below the UK Supreme Court is prohibited by Section 41 of the Criminal Justice Act 1925 and Section 9 of the Contempt of Court Act 1981. Section 32 of the Crime and Courts Act 2013, which received Royal Assent in April, enables the Lord Chancellor, with the agreement of the Lord Chief Justice, to create an order specifying the circumstances in which the prohibitions contained within the Criminal Justice Act and Contempt of Court Act may be disapplied. The Court of Appeal (Recording and Broadcasting) Order 2013 is the first order to be made under that power, and sets the conditions under which the statutory prohibitions on recording and broadcasting will be disapplied to allow for recording and broadcasting of footage from the Court of Appeal. Any breach of the terms of the order may amount to contempt of court.
Recording and broadcasting of footage will be only of specified proceedings, as laid out in Article 5 of the order, where these proceedings are in open court and in front of a full court. Media parties may film only advocates’ submissions, exchanges between advocates and the court, and the court giving judgment. Filming of any other individuals—including appellants, members of the public, victims and witnesses—is not permitted. In cases where any party is not legally represented, only the court giving judgment may be recorded.
So long as any applicable reporting restrictions would not be breached by broadcasting, in many cases footage may be broadcast “almost live”, subject to a 70-second time delay, as agreed between media parties and Her Majesty’s Courts and Tribunals Service. We believe, however, that in some cases it is necessary to impose restrictions on broadcast in order to prevent prejudicing any potential future retrials, and to protect the interests of justice.
For this reason, any footage of proceedings where a retrial has been ordered may not be broadcast unless the court gives permission to do so. This means that in those cases where a retrial might be ordered, such as appeals against conviction, the court must give its permission before any part of those proceedings may be broadcast. Where a retrial is not ordered by the court, media parties may show footage immediately after the conclusion of proceedings. In certain limited circumstances, the court may give permission to broadcast even these cases from the outset. But until the conclusion of the case, the decision is solely for the judges in that appeal.
It is important for justice to be seen to be done but this cannot be at the expense of the proper administration of justice or the reputation of the courts. The courts deal with very serious matters that can affect the liberty, livelihood and reputation of all the parties involved. Therefore, we have taken steps in order to ensure that any report or presentation using footage recorded in the Court of Appeal should be presented in a fair and accurate way. It will have to have regard to the overall content of the presentation, and to the context in which the broadcast footage is presented. Furthermore, footage may not be used in party political broadcasts or for the purposes of advertisement or promotion. It cannot be used for the purpose of light entertainment or satire.
The technical and operational details governing the recording and broadcasting of footage from the Court of Appeal will be set out in writing and agreed between the judiciary and the media parties. This will be annexed to the written authorisation of the relevant media parties by the Lord Chancellor.
When the broadcasting provisions were debated in this House during the passage of what became the Crime and Courts Act 2013, concerns were expressed that the introduction of cameras into the Court of Appeal, while broadly supported, might be the thin end of the wedge and lead to the undesirable broadcasting of trials and proceedings in the lower courts. I reiterate the assurance given at that time that any extension to the circumstances set out in this order will require a new order that will require the agreement of the Lord Chancellor and the Lord Chief Justice, and the approval of both Houses of Parliament under the affirmative procedure.
We are conscious of the concerns that were raised regarding victims and witnesses, and of the perceived potential detrimental effects that court broadcasting might have on their experiences in court. In particular, the comments made by the noble Baroness, Lady Kennedy, during the passage of the primary legislation through Parliament, as well as a report by the Joint Committee on Human Rights, led directly to the publication of a full impact assessment alongside this order, and to our continued engagement with interested parties.
It is rare that a victim or witness will appear in person at the Court of Appeal, as the majority of cases will be appealing a point of law rather than the facts of the case. However, in the event that they are present, a number of safeguards will be in place to minimise any potential impact that broadcasting may have. As I said, the order does not permit filming of any victim or witness. Nor does it permit the broadcasting of any footage of them. In addition, existing reporting restrictions will continue to apply, and Section 32(3) of the Crime and Courts Act 2013 provides that the court may stop or suspend filming, or prohibit broadcast, in the interests of justice or to prevent prejudice to any person.
The Government are committed to increasing transparency and to providing the public with the information they need on the operation of public services. The justice system is no exception. To many people, the law remains mysterious. Public understanding of how the courts work is critical to confidence in the system and to its effectiveness in ensuring that justice is done. This order will allow for greater visibility of the courts, without undermining the seriousness and diligence that are central to the quality of our justice system.
I hope that, in making the presentation, I made it clear that we know that we are going into new territory. Certainly the observations of this Committee will be greatly valued. In the mean time, I commend the order to the Committee.
Lord Hope of Craighead (CB)
My Lords, I very much welcome the order. I rise to speak because I have some experience of the operation of a very similar system, which I introduced 20 years ago in Scotland. The position there is that there is no statutory restriction on the filming or audio recording anything that happens in any court. The matter is controlled entirely by the judiciary. When I became Lord President, it seemed to me—very much for the reasons given by the Minister in his opening remarks—that the public would benefit from seeing a little of what happened in the courts, and would thereby understand a bit more about how the process of justice was being administered. The opening remarks of the Minister were precisely to the point, and I very much agree with the reasons he gave for making this order.
On the other hand, I set as my criterion in deciding what to do about the other point that the Minister made, which was that the administration of justice and the respect that is due to the court itself were absolutely fundamental to any relaxation that might be made on any blanket restriction on the use of cameras or audio recording. The system which I set up was rather a modest one, but is almost exactly that which the Minister has put before this Committee. It depended entirely upon the consent of the court to the use of this equipment. Since we were allowing trials to be considered for audio and television purposes, it would require the consent of a lot of other people as well.
This is a very modest step, because it looks only to the Court of Appeal process. That is a good deal easier than the system at which I was looking. Nevertheless, I have one or two remarks. It is of course very different from the system from which I have just come in the UK Supreme Court, where there is a live feed of the hearings on Sky, and our judgments, when we give them, are reported instantly on YouTube. I understand from comments that have been made to me that both these systems are widely used by the universities, which like to keep track of what arguments have been presented to the court and what judgments have been given.
I do not think that, in not going that far, the Minister is making a mistake. When one looks to the Court of Appeal, as I was doing in Edinburgh, one has to be extremely cautious and move step by step. This step is carefully judged and very appropriate. However, I would like to suggest one or two points. First, the Minister might care to look for the future at the practice direction which I gave in 1992, which set out one or two other points to which people were expected to adhere. I do not have a copy with me today, but it is available in the usual way and provides some guidance to the way the system is operated in Scotland.
Secondly, to give noble Lords a little idea of how the system is actually used, one of the points which came over clearly to us was that the broadcasting corporations want quick feed for news broadcasts but do not have available space for a good deal of dispute and discussion in court unless, as Sky does, they provide it live on a feed which is simply available all the time. I cannot see the live system working here because, quite rightly, there is a check on what is being put out, so that the court must give its permission. The Minister said it could be almost live but cannot be actually live; I fully understand that. That being so, the use that could be made of argument would be rather limited.
However, I see real value in the broadcasting of, at least excerpts from, what judges are saying when dealing with an appeal against sentence. I confess that once or twice in the past two or three years I have wished that the noble and learned Lord, Lord Judge, who was sitting as Lord Chief Justice, had been seen on television. I knew that his remarks were extremely well judged, but I would have thought that they would have carried much more weight if people had seen him actually saying them. That will be the great value of this in the future, almost certainly the most valuable from the court’s perspective and also from the point of view of the broadcasters.
Two things may be missing here. First, in Scotland, we find that the television companies now mostly use the system for ceremonies that take place in court. When a new judge is introduced, which happens fairly frequently these days, there is a fairly colourful ceremony which takes place in court. When the First Minister for Scotland is sworn in, that takes place in court as well. These things do not happen, of course, in the Court of Appeal. On the other hand, things do happen in the Lord Chief Justice’s court which might be of interest to the public, and they are not on the list of things which can be broadcast. It may be that experience will allow for a little bit of relaxation to allow that kind of thing to take place; for instance, when a new Lord Chief Justice is sworn in.
The other thing is documentaries. I think—but I would be grateful if the Minister could confirm—that the recordings referred to here would be available for broadcasters for use in documentaries. That was what happened in our experience in Scotland. Six programmes were made to show trials as they happened and, in one or two cases, the appeals that followed after trial. There has been another one very recently in Scotland, the case of Nat Fraser, where the same technique is being used. It has been broadcast, using recorded material from the proceedings in court. I can see some interest in the way this is done, although of course it will lack the draw for the broadcaster of having the evidence, but at least some of the argument could be helpful. It would be interesting to know whether documentaries would be covered.
Those are the three points for further reference: first, checking how it is done in Scotland for some guidance as to how the system actually works in practice; secondly, ceremonies; and thirdly, documentaries. Otherwise, I very much welcome this measure and I am sure that in due course we will find it beneficial.
Lord McNally
I really appreciate what the noble and learned Lord has said. Perhaps it is a factor of age but it is fair to say that I was the least enthusiastic of Ministers about this. I have used in ministerial discussions the term “slippery slope”. The noble and learned Lord’s endorsement is very clearly on the record. I am interested to know whether there has been any downside in Scotland. Has any abuse by the television authorities been later used to call into question a court judgment or anything like that?
Lord Hope of Craighead
No. I think I had the upper hand, to be perfectly frank. When I introduced it in 1992, the broadcasters understood that if they abused the rules, that would be the end of the system. My experience was that they stuck precisely to what we asked them to do. I was not aware of any abuse of the system. My noble and learned friend Lord Mackay of Drumadoon, who is more familiar with Scotland than I am, may have other experience, but that was my experience. Of course, as far as the Supreme Court is concerned, we have to keep a careful watch on what is being used and what is done with what is being used, but in my experience we have not been let down by that either.
I think the broadcasters will appreciate that this is very much up to them. If they abuse the system, that will be the end of it and judges will not give their consent. That is why that particular part of this order is so important. It is a crucial point of the whole system.
Lord Beecham (Lab)
My Lords, the Opposition certainly support the Government’s intention in helping to make the legal system more transparent and to educate people in its workings. I am much encouraged by the remarks of the noble and learned Lord, Lord Hope, about the experience in Scotland. It would be interesting to know what the viewing figures are for these proceedings but at least we are clearly not in the realm of “Strictly Come Appealing” or possible interpretations of that kind.
Perhaps the Minister could indicate whether and at what stage there might be a review of the situation. Obviously, as the noble and learned Lord has said, if there were some transgression on the part of the media, judges could stop facilitating the process of broadcasting. But is there an intention—as in the normal course of events presumably there would be—to review the operation, and would that be in conjunction with the senior judiciary? We are limiting the arrangements, in the first instance at any rate, to the Court of Appeal. There would be concern if it were proposed to extend it to other, lower courts, particularly if witnesses and parties were to appear in broadcasts, but fortunately we do not seem to be following the American model of turning this into a source of entertainment rather than education. To the extent that this proposal will contribute to a better understanding of the legal system, it is certainly to be welcomed.
I had not understood the position in Scotland to have been as it has been described to us today. I pay tribute to the noble and learned Lord for having blazed a trail for what ought to be a distinctly progressive move towards enlightening the public and the users of the legal system about how it operates, at least on this important level, in addition to the broadcasts that currently take place of the Supreme Court itself, as the noble and learned Lord reminded us. We warmly endorse matters as they are laid before us and look forward to seeing how they progress in practice.
Judicial Appointments Commission Regulations 2013
Lord Hope of Craighead Excerpts(11 years, 6 months ago)
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Lord Marks of Henley-on-Thames
My Lords, I wish to make a brief general point about judicial diversity in connection with these regulations. The Committee knows that my noble friend is a forceful advocate of judicial diversity. The Government’s commitment was apparent during the passage of what is now the Crime and Courts Act, and in particular in their promotion of the provisions which find expression in Schedule 13 to that Act. While not wishing to make any judgment about the recent appointment to the position of Lord Chief Justice it is, from the diversity point of view, a shame that the extremely highly thought-of female candidate was not selected. That would have been real and very public progress.
These regulations implement the new systems in ways that are both detailed and welcome, but the imperative is to ensure that we move towards a much more representative judiciary with more women, more ethnic minority judges and judges from a far broader range of social background. These regulations can be no more than a step on the way to achieving that. While they are detailed and welcome provisions, to achieve real change we need a deep and continuing change of culture. That was highlighted in the report of the Advisory Panel on Judicial Diversity, chaired by the noble Baroness, Lady Neuberger and mentioned by my noble friend. I look forward in the future to Government and the judiciary working together to achieve that change.
Lord Hope of Craighead
My Lords, I shall make a short point relating to the Supreme Court (Judicial Appointments) Regulations. Before I explain my point, I should declare an interest. I recently retired as deputy president of the Supreme Court. For the past four years I have been a member of the ad hoc commission and thus responsible, along with the president, for a number of appointments, which have included something like a third of the court now sitting as the Supreme Court across the square.
My point relates to diversity in a rather unusual way. As the Minister has explained, one of the aims of redesigning the composition of the selection commission described in Part 3 of these regulations is to meet the recommendation that the commission should no longer be seen to be appointing or selecting for appointment people in their own image. It may be that that was a fair criticism at the time when I was sitting as one of the two judicial members of the panel since the president and I were both men, but I have just retired and I have been succeeded by the noble and learned Baroness, Lady Hale of Richmond. In a way, this follows on from a point just made by the noble Lord that one may regret for diversity reasons the choice of Lord Chief Justice. I make no comment on that, but one great advance that has been made in the Supreme Court is that we now have the noble and learned Baroness, Lady Hale, who is a very vigorous proponent of diversity and is probably best suited of anyone to sit on such a commission.
It is a great misfortune of timing. If she had been in my position when the noble Baroness, Lady Neuberger, came with her members to visit us and to discuss the change, I am sure that the noble Baroness would have seen—it would have been perfectly obvious—that the noble and learned Baroness was there and that we had on our team every component for diversity one could possibly have wished for. As the noble Lord rightly explained, when the draft regulations were discussed with us, it was impossible to make the point that the noble and learned Baroness, Lady Hale, might be my successor because I had not yet resigned and the selection process for my successor had not yet taken place. Therefore, we were very cautious not to make any prediction about who would succeed me. The succession process produced this result only about four weeks ago.
It is a great misfortune of timing has led us to the position where the noble and learned Baroness will now be excluded from participation in the selection process. The regulations are very carefully drafted because the composition of the selection commission in Regulation 11 provides for a senior UK judge to be nominated to take the position which I previously occupied. It is quite clear, if you read Regulation 11(1)(e) with Regulation 14 and Regulation 2, that the senior UK judge can be any senior UK judge other than a judge of the Supreme Court. So it is quite clear it can only be the president who would be the Supreme Court member, and the noble and learned Baroness, Lady Hale, has no prospect of playing any part in the work of the commission.
The way that the appointments have gone in the Supreme Court in recent years means that there will be no fresh vacancy, I think I am right in saying, for two or three years. Now that I have gone, the way is clear for the court to settle down without any real change. However, in two or three, or possibly three or four years’ time, a significant number will retire and fall to be replaced, and the noble and learned Baroness will still be there. The composition of what one might call the next but one Supreme Court will be greatly influenced by the work of this commission. It is a great pity that the reform has taken this form. As I said earlier, I doubt very much whether it would have done before, but I must concede that the Minister is absolutely right to say that the regulations were shown to us. We did the best we could in our discussions to make this point without naming names.
The purpose of my intervention is to express regret at this turn of events and hope that perhaps one day it may be possible to recognise the enormous qualities of the noble and learned Baroness, Lady Hale, and the major contribution she would be able to make to increasing diversity in a way which concerns us all.
Legal Aid
Lord Hope of Craighead Excerpts(11 years, 7 months ago)
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Lord Hope of Craighead
My Lords, I thank the noble Baroness, Lady Deech, for initiating this very important debate. It is with some regret that, so recently having returned to the House after the lifting of the disqualification that attached to me as a Justice of the Supreme Court, I find myself speaking for the first time on such an occasion as this. It is a sad occasion because one cannot help feeling that the need for this debate ought not to have arisen at all. I find it hard to believe that a Government who truly understood and respected the rule of law, who had taken the trouble to appreciate what that phrase really means and assess the consequences of what they had in mind, would have even contemplated introducing some of the proposals that have attracted so much criticism this afternoon.
Let me emphasise at the outset that I have no personal interest of any kind in the outcome of these proposals. I left legal practice long ago and have now reached the age when I am no longer allowed to sit as a judge. I can claim, however, to be an informed observer. My experience as an appellate judge during the past 24 years has been very wide. Judicial review has been a significant part of my work, as has dealing with cases supported by legal aid. I am also well aware of the pressure on public funds and of the need to make savings, and to continue to make savings year after year wherever possible. I had to face up to that problem time and time again when I was the Senior Presiding Judge in Edinburgh and, more recently, as the Minister will know, as the Deputy President of the Supreme Court. I have done my best to promote efficiency and the saving of costs wherever possible. I have supported the Government and will continue to support them in their search for further savings, including in the administration of legal aid. Of course there is no bottomless pit.
The Government are right to seek to target their limited resources on those cases which really do justify legal aid and on those people who need it, but that requires the exercise of judgment based on sound research and open-minded consultation. There is one cardinal principle which until now has always been respected. It is set out in Section 1 of the Constitutional Reform Act 2005, to which the noble and learned Lord, Lord Irvine of Lairg, referred: the constitutional principle of the rule of law and the Lord Chancellor’s role in relation to that principle. It is worth recalling that the clause was not in the Bill as originally drafted. It did not appear until Third Reading in this House following a recommendation by the Select Committee on the Bill. Perhaps it was thought to be so obvious that it was not necessary to state it at all, but that was not the view of the Select Committee, which thought that it should be there and could not be dismissed as unimportant. It is indeed fundamental to the continued existence of our democracy, but the important point I would emphasise is that the rule of law exists for the benefit of everyone and it is for everyone to respect it. There can be no exceptions at whatever level of government. What this means is that all persons and every public authority must regard themselves as bound by, and entitled to the benefit of, laws that are openly and publicly administered in our courts.
Time is very short and I have only a few points that I can make, particularly in relation to judicial review and the tests—the permission test, the borderline test and the residence test. I would invite the Minister to have regard to a paper circulated on 25 June by Dr Nick Armstrong of Matrix Chambers in which he analyses the costings of these various proposals. For example, with prison law he draws attention to the fact that of the overall savings in the proposals that the Government have in mind, which are assessed to be £6 million, £4 million of those are said to come from prison law. Dr Armstrong, however, has indicated—his work has been seen and approved by the Parole Board—that the additional costs that result from these savings may come to as much as £10 million as a result of the continued detention of people who have no access to prison law. That is quite apart from the constitutional implications.
The truth, if one has regard to the consequences of these proposals and burrows underneath what is being proposed, is that the efficient functioning of the rule of law will no longer be there for everyone. As so often one finds on further examination, it is the weakest, the most vulnerable and, let us face it, the most unpopular who are at risk of being unprotected. For them, the rights that are at issue here are the most basic rights of all, and the savings are at risk of being overtaken many times over by increased costs.
On the permission test, to which the noble Lord, Lord Marks, referred, why not fund the early stages of seeking permission before it is sought? At present, 60% of cases are resolved at that stage, especially social welfare cases, so it seems odd that the work done by the firms that provide these services should not be paid for so that they can meet the costs of running their businesses.
Time is too short for me to go further. However, I respectfully ask the Minister to do two things. First, I ask him for an assurance that the Government’s mind is still open on all these issues and that they will look at the costings in the paper to which I have referred. Could he say how it is proposed to bring these proposals into force, given that they raise fundamental constitutional issues? I endorse what has been said by the noble Baronesses, Lady Deech and Lady Kennedy, that detailed parliamentary scrutiny, line by line, is required. This is a matter that requires primary legislation. I hope that we will not have to face up to a succession of regret Motions on delegated legislation, which would be wholly unsatisfactory.