Criminal Justice and Courts Bill
Debate between Lord Hope of Craighead and Lord Beecham(10 years, 4 months ago)
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Lord Hope of Craighead (CB)
My Lords, I am very conscious of the lateness of the hour and I shall be as brief as I possibly can.
This amendment, together with Amendment 69 which follows it, seeks to deal with matters which may have been overlooked when the Constitutional Reform Act 2005 was passing through Parliament. They both relate to the Supreme Court, provision for which was made in Part 3 of the Act. I tabled both amendments at the request of the President of the Supreme Court, the noble and learned Lord, Lord Neuberger.
Amendment 68 would extend to the President of the Supreme Court the same opportunity to lay representations to Parliament on matters that appear to him to be of importance that Section 5 gives to the heads of the judiciary in each of the three separate jurisdictions within the UK: England and Wales, Scotland and Northern Ireland.
So far as I can recall, no thought was given to the position of the President of the Supreme Court when the Bill that became the 2005 Act was passing through Parliament. There may be various reasons for that. I do not recall the matter being discussed at all. I do not think that there was any policy decision on the matter either one way or the other. There may have been a drafting explanation, because Part 2, which contains Section 5, appears in the Act before Part 3, which created the Supreme Court. The separation of those two parts may have led to the matter being overlooked. Whatever the matter, the fact was that the point was concealed from us by the events that were going on at the time. If we had been thinking of the matter now, we would certainly have asked for the president to be included.
I should say that there are no issues of current concern to the president. However, unless the statute is amended, he would be unable to make representations should something of concern arise. He has been looking for quite some time for a suitable vehicle to introduce an amendment to that effect and it seemed to him that this Bill contains that kind of vehicle, which is why this has been brought forward now.
I will say just a brief word about the wording of the provision that is being proposed. The heads of the judiciary in each of the three jurisdictions have no objection in principle to what is being proposed. However, some thought has been given—especially by the noble and learned Lord, Lord Neuberger, and myself—to the precise wording. The words,
“that appear to him to be matters of importance relating to the Supreme Court”,
which is the first part of the formula, are simply a translation of the first part of the formula in Section 5(1) to accommodate the new court. It has been a little more difficult to find a formula that is appropriate to the situation of the new court in place of the words,
“or otherwise to the administration of justice”,
in Section 5(1). The wording in my amendment uses the phrase “or the jurisdiction it exercises”—that is, the jurisdiction of the Supreme Court. The intention of that formula is quite simple: to ensure that the responsibilities of the heads of the judiciary in their respective jurisdictions are respected by the president, which of course he would seek to do.
Finally, I will address two very short points on this amendment. The first is that it would be highly desirable for this formula—or at least one that the Minister can be assured has the agreement of all concerned—to be adhered to in any revised version of this amendment. The second is that between now and when we come back on Report the president and the heads of the three jurisdictions will be seeking to agree a mutually acceptable form of words that will ensure that their respective areas of jurisdiction are respected. They may come up with the same form but, if there is any difference, we will of course let the Minister know.
The second amendment is quite short. It relates to the composition of the supplementary panel, provided for in Section 39 of the Constitutional Reform Act, from which the president may invite someone to sit as an acting judge of the court under Section 38, as is necessary from time to time when places need to be filled. The section contains a number of different sources from which that supplementary panel may be drawn, but time has marched on and subsections (2) and (3), which extended membership of the panel to Members of the House of Lords under conditions which are set out, are no longer relevant as there is now no one who can possibly satisfy those conditions. That is a feature of time marching on. Subsection (6) is of no help for the present either, for the same reason.
Therefore, the only subsection that can now be relied on is subsection (4), which is very tightly drawn, but it requires a decision to be made as to membership of the panel before the individual retires. The president, the noble and learned Lord, Lord Neuberger, has found that embarrassing in at least one case. He wanted to appoint somebody who was eminently suitable and who had retired very recently, but it was too late to catch him to put him on to the panel. The amendment seeks to retain the principle of tightness to avoid individuals becoming too, perhaps, stale after retirement but nevertheless to make it a little easier to draw in people who are suitable for appointment to the panel. That is the purpose behind the amendment. I do not think there is any dispute between any of the heads of jurisdictions about this amendment; it is just a simple matter of facilitating the sensible provision in the Act. I beg to move.
Lord Beecham
My Lords, I am very happy to support the noble and learned Lord’s amendment and I take it that the Government will accede to it. It is a very sensible change.
Lord Faulks
My Lords, Amendment 68 would have the effect of allowing the President of the United Kingdom Supreme Court to make written representations to Parliament about the Supreme Court and its jurisdiction in the same way as the Lord Chief Justice of any part of the United Kingdom is able to do under Section 5 of the Constitutional Reform Act 2005. The Lord Chief Justice of England and Wales has used the provision under Section 5 of the 2005 Act to lay before Parliament his annual report, which highlights his accountability for oversight of the judiciary in England and Wales.
Amendment 69 would have the effect of allowing the United Kingdom Supreme Court the flexibility to appoint judges to the supplementary panel within two years of their retirement, providing they are under the age of 75.
First, I should very much like to thank the noble and learned Lord, Lord Hope, for all his work on these issues and for being so patient in waiting for this amendment to be reached at such a late stage. Given his background, he is of course well placed to speak with authority on these matters. I know that he has been working closely with the judiciary on these amendments and he has also recently written to me regarding them.
The Government understand the rationale behind the amendments. However, before we can agree to make such changes, we will need to consider the matter and the impacts of the proposed changes further and discuss them in more detail with the President of the Supreme Court, the Lord Chief Justice, the Lord President of the Court of Session and the Lord Chief Justice for Northern Ireland. I will also be happy to have further discussions with the noble and learned Lord about the amendments and will respond fully to his letter shortly. On that basis, I hope that he will feel able to withdraw the amendment.
Public Bodies (Merger of the Director of Public Prosecutions and the Director of Revenue and Customs Prosecutions) Order 2014
Debate between Lord Hope of Craighead and Lord Beecham(10 years, 9 months ago)
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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.
Costs in Criminal Cases (Legal Costs) (Exceptions) Regulations 2013
Debate between Lord Hope of Craighead and Lord Beecham(10 years, 10 months ago)
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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.
Court of Appeal (Recording and Broadcasting) Order 2013
Debate between Lord Hope of Craighead and Lord Beecham(11 years, 1 month ago)
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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.