Crime and Courts Bill [HL]

Debate between Lord Lloyd of Berwick and Lord Goodhart

Tuesday 18th December 2012 Lords Chamber

[Lord Lloyd of Berwick]

My Lords, if your Lordships can bear a third lawyer in a row, I, too, would like to express my support for the amendment. I regret that I was not able to be present at Report stage, but if I had been I should certainly have spoken in favour of the amendment.

The Government’s fundamental concern, as described on Report by the noble Lord, Lord Ahmad, is that there should be “proper lines of accountability”—a quotation already referred to by my noble and learned friend Lord Phillips. My noble and learned friend and my noble friend have already dealt with that argument effectively, so I shall say no more about it.

The noble Lord, Lord Ahmad, also said that he would not revisit the arguments that had been raised historically. It is here that I want to add just a few words, because I was more directly concerned with the terms on which the 2005 Act was passed than either my noble friend or my noble and learned friend. The main argument in favour of setting up the Supreme Court was of course the presence of the Law Lords in this place, which was said to be contrary to the principle of the separation of powers. I never accepted that argument. It seemed to me then, as it seems to me now, that the Law Lords were as independent of the Executive as the members of the Supreme Court are now—neither more nor less.

Whatever the theory of the separation of powers, the reality was that the separation was complete. The back-up argument in those days was based on perception. Although we in Parliament knew very well that the law Lords were independent of the Executive, that was not—so it was said—the perception of the public, or at least of some members of the public. However, there was never any evidence to suggest that that was the perception of the public except, if I remember correctly, a single piece of anecdotal evidence. This led the noble Lord, Lord Norton of Louth in a most memorable speech—I wish he was in his position to hear me say this—to describe the whole exercise as having been based on,

“the perception of a perception”.—[Official Report, 4/7/07; col. 1094.]

However, here we are—as the saying goes—and we must go on from here.

Having created the Supreme Court at a cost of £100 million, not to mention the huge increase in the annual cost of running it, we must now take it as it is and complete the job. I cannot imagine any provision more likely to create the impression of interference by the Executive in the affairs of the Supreme Court than that the chief executive should be appointed by the Lord Chancellor. If the Lord Chancellor was here, it would be no answer for him to say that in practice he would accept the nomination of a selection committee. The perception is there and, in this case, the reality is there.

I cannot remember whether we discussed Section 48(2) in the Select Committee that sat for many weeks. Nor can I remember why, in the end, we accepted the section as it stands, unless we perhaps had in mind the old style of Lord Chancellor before the Constitutional Reform Act 2005, rather than the new Lord Chancellor as he has become. Whatever thought processes went through our heads, I am now convinced that the section was a mistake, and therefore I am very glad to support the amendment.

[Lord Goodhart]

My Lords, I am going to take a rather unusual position on this and say that I am afraid I do not agree with Amendment 3. I was considerably involved in the drafting of the Constitutional Reform Act 2005 and I had no objection at that time to Sections 48 and 49, which are now objected to in this amendment. The reason why I do not welcome this amendment is that the chief executive is an administrator, not a judge. That being so, I see no serious reason why Lord Chancellors should not continue to be involved in the proceedings of Sections 48 and 49 as they now are. The administration of an issue which involves both those in charge of costs and those in charge of the law needs to recognise the real issues here because of the way in which the funds get to the Supreme Court.

I am in general a strong supporter of the two former judges who have put their names to this amendment and of the noble Lord, Lord Pannick, but in this case I fail to be able to agree with them as they would clearly like.

Legal Aid, Sentencing and Punishment of Offenders Bill

Debate between Lord Lloyd of Berwick and Lord Goodhart

Thursday 9th February 2012 Lords Chamber

[Lord Goodhart]

My Lords, I was not involved in criminal law during my practice as a barrister, but I became very interested in IPPs in 2009 because we were then dealing with what became the Coroners and Justice Act. I became particularly concerned at this because Dame Anne Owers, who was then the Chief Inspector of Prisons, together with the Chief Inspector of Probation had written an absolutely devastating report on the defects of IPP. The defects disclosed in the inspector’s report are several. There is a lack of accurate pre-sentence reports on prisoners, which has led to a number of unjustified IPP sentences being imposed on people who should not have had them applied at all. There is a lack of resources for the Parole Board to enable it to determine the fate of prisoners after the prisoners have passed their tariff date. This means that the prisoners may languish for months or even years in prisons where they can not get the training that they require before they can apply for release, so prisoners under IPP are serving what is potentially a life sentence.

There have been some improvements of IPP as a result of amendments made in 2008 to the Criminal Justice Act 2003, but those improvements were not enough. By 2009, it was clear in my view that IPP was a disaster. It could work only with a lot more money put into it; if it did not have that money, it was grossly unfair to at least some of the prisoners. The Parole Board does not have the money that it needs and, as matters now stand, it will not for the foreseeable future.

I am going to repeat something that I said in a debate in 2009 because it covers my views now. I said:

“The IPP is wrong in principle and wrong in practice. English courts have a long-standing system of sentencing. Under that system, only the most serious offences can be punished by life imprisonment. It is unnecessary and wrong to impose a de facto life sentence on convictions for an offence which does not carry the life sentence. The IPP is even more wrong in practice. It is wrong because many pre-sentence assessments are inadequate and lead to the imposition of IPPs on those who should not be subject to it. It is wrong because many IPP prisoners, especially in local prisons, have no access to training, without which they cannot get a hearing before a Parole Board panel”.—[Official Report, 28/10/09; col. 1249.]

Little has been done to correct the situation that was so clearly stated by Dame Anne Owers and her colleague. Now we have Clause 117 of the LASPO Bill and some further amendments from the Government. These are not good enough. What would be good enough is Amendments 179ZA and 179ZB in the names of my noble friend Lord Thomas of Gresford and the noble Lord, Lord Ramsbotham, which are nearly identical; I hope that they will be merged in time for Report. What the amendments would do has already been explained to your Lordships: they would limit extended sentences only to cases where it had been shown that there was a strong and immediate probability, based on clear and competing evidence, that the prisoner would commit a serious violent or sexual offence.

Indeterminate sentences are deeply unsatisfactory. Amendments 179ZA and 179ZB come more than close enough to this test and I strongly support them. I also strongly support other amendments including Amendment 180, to which I am one of the signatories.

[Lord Lloyd of Berwick]

My Lords, the real scandal is that IPP sentences have gone on for so long. The previous Government had the chance to do something about them in 2008, as the noble Lord, Lord Goodhart, has indicated, when it was already obvious that IPP sentencing was going badly wrong. I remember tabling an amendment at that time to raise the bar and therefore reduce the number of those eligible for IPP sentences. The noble Lord, Lord Bach, was sympathetic but met me only half-way. The Conservatives, I am sorry to say, opposed the amendment. As a result, we have the situation in which we now find ourselves. I entirely share the indignation so well expressed by the noble Lord, Lord Ramsbotham. I add only that in my view something must be done, and done soon.

Consumer Insurance (Disclosure and Representations) Bill [HL]

Debate between Lord Lloyd of Berwick and Lord Goodhart

Tuesday 20th December 2011 Lords Chamber

[Lord Lloyd of Berwick]

My Lords, I am very glad to hear that the noble Lord, Lord Eatwell, is not objecting to the amendment. Whether it is something new or exactly the same in a different form does not matter so much, but I am glad that the amendment proposed will not be opposed by the noble Lord.

While on my feet, perhaps I could say a word about the Law Commission and the part that it has played in bringing us to this point. The report was originally published in 2009. It followed three years of intensive research and a great deal of evidence-taking, as one can see from the report. The commission then succeeded in reconciling the many divergent interests and produced, as a result, a draft Bill, which is the Bill before us with only a few alterations. It is unquestionably the most important reform of the law of insurance since the Marine Insurance Act 1906. The draftsman of that Act was Sir Alfred Chalmers, who is always referred to in this part of the law as the “legendary Chalmers” because he was a brilliant draftsman. It seems to me that this Bill is a worthy successor to the Chalmers Act of 1906. We owe a great debt of gratitude to the Law Commission and, in particular, to David Hertzell, who was in charge of the report. I hope that we may have many more Bills from that stable and I gather that there is already one in the offing, but as it relates to some rather obscure matters of trust law I assume that we shall not have the pleasure of the noble Lord, Lord Sassoon, taking it through the House.

[Lord Goodhart]

My Lords, I would like to mention one matter as the noble Lord, Lord Eatwell, has referred to the amendments that I put forward in Committee. As I said then, there was basically a pedantic reason for what I did. I thought what I did was slightly better but, quite frankly, it was not a serious problem at all. As they were not automatically accepted in Committee, there is no point in raising the matter again now. I am quite happy that it no longer appears.