Rule of Law

Lord Macdonald of River Glaven Excerpts

Tuesday 26th November 2024 Lords Chamber

[Lord Macdonald of River Glaven (CB)]

My Lords, I join others in welcoming the noble and learned Baroness, Lady Smith of Cluny, and congratulate her on both initiating this important debate and her wonderful maiden speech. I also welcome and congratulate the noble Baroness, Lady Laing of Elderslie, on her maiden speech. I will focus on one defining aspect of the rule of law: the requirement to secure a fair, open and timely means of adjudicating disputes between citizens and the state, typically in criminal justice.

I want to address this issue because I believe that the quality of its criminal justice speaks eloquently about a country’s attachment to the rule of law. In fact, our country has a proud record in this area, often held up as an example to the world, and followed in many other nations whose own systems of justice are correspondingly impressive—with incorruptible judges, fair trials, and associations of lawyers that are strong and independent. These are all British legacies—rule-of-law legacies.

Of course, there have been exceptions to the high quality of British justice but it is notable that when they have occurred we have usually recognised them as historic failures requiring a condign response. One thinks of particularly shameful executions in the days when hanging was a process of law: Ruth Ellis, David Bentley and Timothy Evans—all long since dead, but these travesties contributed a few years later to the eventual abolition of capital punishment.

The Maxwell Confait case imposed a terrible miscarriage of justice on two youths of impaired mental capacity who were bullied into confessing to a sadistic murder they had not committed. But it led, eventually, to the setting up of an independent prosecuting authority, the Crown Prosecution Service, in England and Wales, to take prosecution decision-making away from the police, and to provide a bulwark against such abuses in the future.

The dreadful miscarriages of justice in the 1970s—the Guildford Four, the Birmingham Six, the Maguire Seven and Judith Ward—all featuring a combination of false confessions, police misconduct, non-disclosure and unreliable expert testimonies, led eventually to the creation of the Criminal Cases Review Commission to pick up where justice had previously failed.

More generally, shaken baby syndrome, killings of their tormentors by women subjected to decades of abuse, and rape within marriage are all areas where lawyers, the courts and finally Governments used the living instruments of the criminal law to secure new routes to justice.

In the past, more often than not, we learned from our mistakes. But are we learning now? I pose the question because now our criminal justice system is facing a challenge that I think is broader and deeper than any individual miscarriages of justice, although it will surely bring those along in its wake.

This challenge has been growing for some years. Between 2010 and 2014, my old service, the Crown Prosecution Service, lost more than 30% of its budget and more than 30% of its front-line prosecutors. Imagine if the NHS lost 30% of its budget and 30% of its front-line doctors. Imagine if our schools had faced a similar catastrophe. During this period, legal aid rates were slashed, and they remain today much lower in real terms than they were many years ago.

These cuts have been mirrored across the criminal justice system—which was seen as an easy target by many Ministers—from the courts service to prisons and probation, which, like our trial processes, have never really recovered and are terribly understaffed, underfunded and suffering from poor morale.

Today, many court buildings are a decrepit disgrace, with broken heating, ramshackle furniture, worn-out carpets, and buckets in corridors and courtrooms to catch rainwater from leaking roofs and windows. This is a shabby message to send the public about the importance and dignity of our institutions of justice and about the pre-eminence its delivery should enjoy in our national life. To cap it all, chronic underfunding has led to a huge exodus from the ranks of criminal lawyers, from among solicitors of course, but particularly from the criminal Bar.

It is right to acknowledge that in the recent Budget, the Government allowed modest increases in spending for criminal justice, in place of feared further cuts, which would have been disastrous. This is very welcome and the Government are to be congratulated on it, particularly in relation to increases for the Crown Prosecution Service, which has been under impossible strain for many years, and which now receives an additional 7.5%.

The Probation Service, too, is in dire need of the extra officers it has been promised, although it will need many more. It is important to note that the bulk of the new money, £2.3 billion, will go on prison expansion and renewal. According to research conducted for the Bar Council, these single-digit increases come in the context that spending on justice decreased by no less than 22.4% in real terms between 2010 and 2023.

Furthermore, in October the Justice Secretary declined outright a request from the Lady Chief Justice that courts should return to sitting at greater capacity to deal with the disastrous backlogs in our courts, which are so corrosive of public justice. Instead of the 5,500 extra sitting days a year she asked for, the courts were given just 500. In response, the senior presiding judges wrote a letter to the Circuit Bench, which was immediately leaked. It said that

“the consequence … is that a very large number of trials and other hearings that are scheduled to be heard will now have to be rescheduled … probably for a lengthy period”.

This is precisely what has happened, at great human cost. I have spoken to circuit judges who, in the face of the Government prioritising relatively minor savings over the timely delivery of justice, are beside themselves with frustration. They are having to share one prosecuting barrister between several courtrooms because there are no others available. They are forced to adjourn cases again and again for want of defence counsel who no longer do criminal work because the rates and conditions are so poor. Resident judges are having to shutter several courtrooms in their Crown Court centres because of the Government’s decision to refuse the Lady Chief Justice’s request. As we conduct this debate, I am told that no less than 25% of the courtrooms in London’s largest and busiest Crown Court complex are locked and dark, doing justice for nobody. Meanwhile, the backlog in the Crown Court approaches 70,000 cases. Trials in the London area are being listed for 2027 or even in some cases 2028.

Some people in Britain used to sneer at other countries, particularly in Europe, for the length of time their criminal procedures took. Perhaps now they are sneering at us. To state the obvious, to postpone the arrival of justice by three or even four or five years after a crime has been committed destroys deterrence, makes sentencing a farce and adds the grossest insult to every true victim’s injury.

This cannot go on. Since the election, we have heard stirring words from the Prime Minister and the noble and learned Lord the Attorney-General about the United Kingdom’s adherence to the rule of law. Personally, I take great pleasure in these expressions of principle, which are consistent with our very best traditions. They have underpinned not only our individual rights and freedoms over the years, but also the success of our banking, trade and commerce. Indeed, they come from old colleagues whom I know well, like and have always held in high professional esteem at the Bar, as I still do.

However, we are now at a point where the faltering state of our criminal justice system is a reproach to words alone. They must be matched with action—action at a far greater scale than the recent Budget allowed, and which begins to deal with the deep systemic problems that lack of funding, lack of care and, in the end, plain old lack of interest have brought in recent years. Let the Government demonstrate a real adherence to the rule of law, beyond protestations of fealty that cost nothing, by making a new commitment to treat justice as a great and deserving public service without which no democracy can expect to retain the allegiance of its citizens.

Terrorist Offenders (Restriction of Early Release) Bill

Lord Macdonald of River Glaven Excerpts

2nd reading & 2nd reading (Hansard) & 2nd reading (Hansard): House of Lords
Monday 24th February 2020 Lords Chamber

[Lord Macdonald of River Glaven (CB)]

My Lords, this Bill places convicted terrorist prisoners in a special category and makes special rules for the administration of their sentences. I consider this approach justified.

Terrorism offences represent a uniquely broad and dangerous threat to not just the public but the organisation of society. They are a twin attack on both individuals and the body politic. In the face of this analysis, it seems to me actively perverse for a state to grant early release to terrorist prisoners who are believed to remain a threat to the public. The Government are right to abolish the automatic right to early release in these cases and, by altering the purely administrative arrangements around the relevant sentences in this way, the Government do not offend any presumption against retrospectivity. This change is proportionate. It strengthens public protection and offends no principle of law.

What of the provision that increases the period to be served before release may be considered? My view is that this, equally, is a proportionate provision that strengthens public protection and offends no principle of law. To alter the period that must pass before a prisoner may be considered for early release is not to alter the original penalty that was imposed by the sentencing court. To do that would precisely offend the presumption against retrospectivity, but the Government’s proposal does no more than alter a particular aspect of that original penalty’s implementation. The penalty itself, the sentence imposed by the judge, remains the same. I do not believe that such a modification in any way engages a presumption against retrospectivity.

A justification for this measure is readily apparent: strengthening public protection from a uniquely dangerous category of offender. The uniqueness of the danger represented by terrorist offenders lies in the fact that their crimes are motivated by ideology and that this ideology positively and precisely mandates the commission of further similar crimes. This means that every proportionate step must be taken to ensure that the prisoner’s ideology has been sufficiently tempered before early release can be considered. In my view, that easily justifies a requirement that a longer period should be served by convicted terrorists, as opposed to other prisoners, before they may be considered for early release to allow for a deeper and more intensive examination of this important question than might otherwise be available in their case.

I strongly agree with the part of my noble friend Lord Carlile’s speech on deradicalisation and probation provision and its present hopeless inadequacy. In isolation, without more, this legislation just kicks the can down the road—not very far in some cases, because we are dealing with prisoners who will be released, even under the provisions of this Bill, in the near future. We need to develop multiagency deradicalisation programmes, but I agree with my noble friend Lord Evans of Weardale that these do not guarantee anything. We will also need to develop programmes for post-release supervision and, if necessary, control. Because these programmes would only follow criminal conviction for terrorist offences, in my view they could easily—depending on how they are designed—be proportionate and appropriate in these particular cases. All this needs thought, effort and a good deal of investment, but if the Government really wish to protect the public they should urgently commit all three.