Legal Aid

Lord Marks of Henley-on-Thames Excerpts

Tuesday 24th November 2015 Lords Chamber

Asked by

[Lord Marks of Henley-on-Thames]

To ask Her Majesty’s Government whether they are satisfied that the Legal Aid Agency’s evaluation of tenders for the new duty solicitor contracts was fairly and effectively conducted.

[The Minister of State, Ministry of Justice (Lord Faulks) (Con)]

My Lords, we are. The Legal Aid Agency followed a robust and fair process in assessing duty tender bids. The assessment process was subject to careful moderation and management at all stages, including independent validation. All staff who assess the bids received comprehensive training to ensure transparent, consistent and fair treatment of all bids.

[Lord Marks of Henley-on-Thames (LD)]

My Lords, two whistleblowers involved in this assessment process have now said publicly that there were too few staff, many of them virtually untrained agency temps with no relevant experience, and that assessment of the bids and moderation of the assessments were subjected to highly unreasonable time targets. Now that this has led to 100-plus legal challenges and calls from the Law Society for a full and proper investigation, what do the Government propose to do to review the process in view of the Answer just given by the noble Lord?

[Lord Faulks]

The noble Lord is right that this has been the subject of legal challenges, just as the bidding process itself was subject to an unsuccessful judicial review. There have been individual legal claims under public procurement regulations and a judicial review in relation to the process. It is inappropriate for me to comment in detail about matters which are the subject of litigation. However, I can say that about 19% of the staff were temporary. The Government are satisfied that these staff were thoroughly adequately trained and that what they were asked to do was reasonable in the time afforded to them.

Restorative Justice

Lord Marks of Henley-on-Thames Excerpts

Wednesday 18th November 2015 Lords Chamber

[Lord Faulks]

The Government are aware that there are a number of schemes, in not only Northern Ireland, but Australia, New Zealand and parts of North America. There is no standardised way of delivering restorative justice but the Government are committed to continuing this as a significant way of improving reoffending rates and providing victims with a reasonable involvement with the criminal justice system.

[Lord Marks of Henley-on-Thames (LD)]

My Lords, the MoJ is to be congratulated on its action plan produced by the coalition Government and on promoting Restorative Justice Week. There is strong evidence that restorative justice programmes can be effective in prisons as well as in the community, and Sycamore Tree has been running programmes in 40 prisons. Will the new prisons built to replace existing outdated ones have the facilities necessary to run restorative justice programmes, and in surroundings that are sympathetic to victims, who are central to restorative justice?

[Lord Faulks]

The noble Lord is right that restorative justice is provided in a number of settings, including in prisons. Of course, the new prison plans are somewhat in their infancy at the moment but I am sure that the Secretary of State will have well in mind the desirability of maintaining this tradition.

Criminal Justice: Transgender People

Lord Marks of Henley-on-Thames Excerpts

Wednesday 4th November 2015 Lords Chamber

Asked by

[Lord Marks of Henley-on-Thames]

To ask Her Majesty’s Government what assessment they have made of the current policy on the treatment of transgender individuals in the criminal justice system.

[The Minister of State, Ministry of Justice (Lord Faulks) (Con)]

My Lords, criminal justice agencies are mindful of their duties under the Equality Act 2010. In particular, the National Offender Management Service policy on the care and management of transsexual prisoners states that prisoners are normally placed according to their “legally recognised gender”. The guidelines allow, however, some room for discretion and in such cases senior prison management will review the circumstances with relevant experts to protect the prisoner’s safety and well-being, and those of other prisoners.

[Lord Marks of Henley-on-Thames (LD)]

My Lords, Tara Hudson—a woman, after six years of gender reconstruction—was originally imprisoned at HMP Bristol, a tough prison for 600 men, causing her great distress. She was moved to a women’s prison only after the judges considering her appeal suggested that the Prison Service reconsider. How can prison allocation be so insensitive to transgender offenders, particularly in the light of the Minister’s Answer? Will his department ensure that in future, if a transgender defendant is at risk of a custodial sentence, full and careful thought will be given to allocation before sentence rather than after placement?

[Lord Faulks]

I am slightly surprised that the noble Lord has commented in such detail on Tara Hudson; he will be aware of the obligations under the Data Protection Act and the Gender Recognition Act 2004, which place restrictions on the disclosure of information relating to prisoners. As noble Lords will be aware, it is the policy of the Ministry of Justice and its executive agencies never to discuss individual cases. However, without breaching any of the obligations under those Acts, I can assure the House that she is being held in an appropriate environment and is receiving the care that she needs.

British Bill of Rights

Lord Marks of Henley-on-Thames Excerpts

Wednesday 28th October 2015 Lords Chamber

[Lord Faulks]

I do not believe that there was any downgrading of human rights. We have a proud history of protecting human rights, both here and abroad, and we will continue to maintain our concern for those human rights.

[Lord Marks of Henley-on-Thames (LD)]

My Lords, independent reports—the Minister’s answer appears to confirm this—state that there will be no pre-legislative scrutiny of this vital and, frankly, ill-defined proposal and that the Government will go to legislation after a consultation of about only 12 weeks. Can the Minister refute those reports and promise full pre-legislative scrutiny of a constitutional measure of this fundamental importance?

[Lord Faulks]

We will consult fully on our proposals, and will announce further details in due course. There have already been two consultations pursuant to the commission on a Bill of Rights, and there will be a third consultation. This is in marked distinction to what happened on the Human Rights Act, which was brought in without any consultation at all, within six months of the Labour Party gaining power.

Prosecution of Offences Act 1985 (Criminal Courts Charge) Regulations 2015

Lord Marks of Henley-on-Thames Excerpts

Wednesday 14th October 2015 Lords Chamber

[Lord Marks of Henley-on-Thames (LD)]

My Lords, in Committee on the Criminal Justice and Courts Bill, in moving amendments to the Government’s proposals, which are now Part II(a) of the Prosecution of Offences Act 1985, I made it clear that our principal purpose in seeking to amend these provisions was to ensure that the criminal courts charge would be charged on a discretionary, and not a mandatory, basis. Our reasons were that a mandatory charge would be unfair, would frequently have to be imposed when there was clearly no chance that it would ever be paid, and that it would damage offenders’ chances of rehabilitation because offenders with no money would have an unaffordable financial liability hanging over them, which would in turn hinder their chances of obtaining employment, and all for no sensible or realistic purpose.

We never said that such a charge should not be a tool available for the courts to use in appropriate cases, but we wanted the courts to have the power to use it in appropriate cases only, and to decline to do so where it was simply an empty gesture, but one with potentially damaging consequences. We also expressed the view that the retrospective power to remit an unpaid charge would prove to be a useless and cumbersome way of dealing with the many cases in which a charge should never have been imposed in the first place.

On Report, in the hope that the then Secretary of State might have softened his view, we moved similar amendments. Unfortunately, it was quite clear that we had failed to move the then Secretary of State, and the legislation was passed in its present form. The criminal courts charge in practice has been even worse than we feared. The charges introduced by these regulations are very high, so that the overall impact of the penalty may be out of all proportion to the offence, particularly where there is a trial. The examples cited by the noble Lord, Lord Beecham, made that very clear.

The Bar Council, which provided a very helpful briefing for this debate, has pointed out how concerned it is about the impact of these very high charges on the rehabilitation of offenders. It stresses that convicted offenders come largely from among the most vulnerable in society, with the greatest difficulties in finding employment. The council and its member barristers see a risk of offenders committing further offences in order to obtain the funds to pay the charge.

The number of magistrates who have resigned over this single issue passed 50 some time ago, and my understanding is that it may now be even twice that. This country and this House deeply value our tradition of lay magistrates being appointed as volunteers to administer criminal justice in our communities in less serious cases. The Conservative Party has long expressed admiration for our magistracy and many prominent Conservatives have in the past been magistrates. However, we cannot expect members of the community to play their part in a justice system that denies them the power to do justice and forces them to take action which they regard as thoroughly unfair, harmful and unjust.

On issues that concern the magistracy, this House has often been greatly assisted by the experience of the noble Lord, Lord Ponsonby of Shulbrede. I see that he is in his place today and I hope that we may hear from him again. But this is what Richard Monkhouse, chairman of the Magistrates’ Association, has said:

“Our members have expressed concerns about the charge from the outset and it shows the strength of feeling when experienced magistrates resign from the bench because of it. … A six-month review is needed with a view to granting judges and magistrates discretion in applying the charge because we know the majority of offenders will never be able to pay, and worse, that it may influence their pleas”.

This last point is particularly important. The regulations stipulate the amounts of the charge, which diverge wildly according to whether a defendant pleads guilty or not guilty. The noble Lord, Lord Beecham, has given the details of the charges. The most serious divergence is in the case of the magistrates’ court, where a plea of guilty is met with a charge of £150 or £180, depending on whether the offence is summary only or triable either way. That becomes a very substantial £520 or £1,000 on a plea of not guilty. In the Crown Court the differential is less marked; the charge is £900 for a plea of guilty and £1,200 for a plea of not guilty. However, these differences, particularly in the magistrates’ courts, create a serious risk of injustice. It could not be clearer, I suggest, that defendants who are innocent will be driven to plead guilty because of the impact of this non-discretionary charge for pleading not guilty, imposed whether the trial takes an hour or more than a day.

I had an email from a businessman in Shropshire recently. He had served as a magistrate there for 21 years before resigning over this issue. He wrote that with the charge imposed,

“for simply deciding to go to court to argue your innocence on a trivial offence, the British justice system is in a dire state”.

It is not the proper function of the Secretary of State for Justice to bring our system of justice into disrepute, yet that is precisely what this criminal courts charge has done. Imposing unaffordable penalties on offenders who cannot pay commands no respect, just as it brings no real money into the Treasury. Judges feel that this charge is an abuse of their judicial oath, as their promise to do justice clashes with their obligation to enforce the law. This was well expressed by Judge Christopher Harvey Clark, sitting in Truro, when he told a defendant, as he imposed a £900 charge on a guilty plea in the Crown Court:

“The charge has no bearing on your ability to pay. It is totally inappropriate for people of no means to have to pay this charge. It happens to be current government policy but as an independent judge I regard it as extremely unfair”.

The Howard League has pointed out that the non-discretionary nature of the charge has led to courts feeling compelled to manipulate the outcomes of cases to avoid the effect of the charge which is imposed by statute. So fines have been reduced in order to enable the charge to be imposed. Offenders have been given absolute discharges in cases that could not possibly merit them because magistrates are not prepared to impose the charge on the offender concerned. And perhaps worst of all, victims have been denied compensation, which is discretionary, to enable courts to impose the charge, which is compulsory. In west Yorkshire there was the case of a 21 year-old girl, Chloe Knapton, who was left severely scarred as a result of being injured with broken glass in the street. When sentencing the perpetrator, the Recorder did not order him to pay her compensation simply because he had to impose the compulsory £900 charge. That is no justice for her or for society.

I hope we will secure a review at an early stage, far earlier than the three-year review we were promised, and which is enshrined in statute. The evidence is there now on how much damage this charge is doing, and for how little reward. I invite the Minister to say whether an earlier review may be in prospect and whether he is in a position to give the House clear figures on the extent of the criminal courts charges imposed since they came into force, and how much has been collected. That will enable us to see the extent to which the revenue prediction of £80 million a year looks like being met. I suspect that the real collection figure will turn out to be far lower. But even if it is not, I still oppose these charges. For all the reasons that the noble Lord, Lord Beecham, has given, and those I have canvassed, if the noble Lord seeks the opinion of the House this evening, I will support him.

Criminal Legal Aid (Remuneration etc.) (Amendment) Regulations 2015

Lord Marks of Henley-on-Thames Excerpts

Monday 7th September 2015 Lords Chamber

[Lord Beecham (Lab)]

My Lords, I refer to my interests registered as an unpaid consultant with my former law firm.

Last year, the Government reduced the fees payable for criminal legal aid work by 8.75%. On 25 June this year, they published the regulations which are the subject of this regret Motion and which implemented the planned imposition of a second cut of 8.75%, effective for new cases begun after 1 July. However, the Bar was exempt from this second, further cut, at least for the time being. Therefore, it affects essentially solicitors.

The regulations also prescribe new fixed fees, effective from next January, for police station and magistrates’ court work and in Crown Court cases involving up to 500 pages of prosecution evidence—the new PPE. Alongside these changes, the Ministry of Justice is pressing ahead with radical changes to the process of bidding for contracts.

The regulations evinced from the Secondary Legislation Scrutiny Committee a critical report of the kind with which the Ministry of Justice is by now all too familiar. In its report of 25 June, the committee highlighted concerns about the lack of detail about the effect of the first instalment of the 17.5% cut and the deviation from the original timetable. It pointed out that the so-called Explanatory Memorandum gave no information about the effect of the first cut despite the statement in the memorandum accompanying the original cut that that there would be continual monitoring and a review.

The impact assessment—again, typically—is described by the committee as “very short on detail” and as offering,

“nothing about quantification of the impact on legal aid providers”,

whereas the Law Society was quoted as claiming that 120 providers—about 8% of the total—were facing bankruptcy as a result of the previous round of cuts.

An exchange of correspondence between the noble Lord, Lord Trefgarne, and the Minister is recorded in the committee’s report of 2 July and reflected the customary complacency of the Ministry of Justice. The noble Lord, Lord Trefgarne, concluded the exchange by asking two questions: first, what evidence could be provided as to the maintenance of quality, promptness and reliability of the service and how the department would ensure that these were maintained and monitored; and, secondly, given that 1,099 bids had been made for 527 contracts, what would happen to the unsuccessful applicants and was there a risk of market distortion. Perhaps when he replies the Minister could enlighten us as to these matters.

The background to these regulations is of course the Government’s determination to secure further reductions in the legal aid bill, the effects of which have so often been a matter of concern in this House and the world outside. Since 2010, the legal aid bill, civil and criminal, has fallen from £2.2 billion to £1.7 billion—that is over 20% in cash terms and more in real terms—and appears, even without the anticipated saving of £55 million from the measures which are the subject of this Motion, to be falling further to some £1.5 billion. Of course, all these figures include VAT.

Before the Minister does so, I should say that the Labour Government also implemented cuts in legal aid and froze criminal legal aid fees. Indeed, I first came to be acquainted with my noble friend—my now good friend—Lord Bach as a result of securing a debate at the Labour Party conference criticising such cuts. The Government, however, appear determined to reduce the number of law firms able to undertake legal aid work— although they have temporarily, as I indicated, spared the criminal Bar from the second 8.75% cut—heedless of the potential impact on clients and the future of the profession.

In the north-east, for example, seven firms will obtain contracts north of the Tyne and five south of the Tyne. These are very large geographical areas such that access to lawyers will become more difficult for many clients and attendance at police stations more difficult for practitioners. Moreover, the fees payable for different categories of work vary widely. The fee for attendance at a police station, which could well be in the middle of the night—as I shudder to recall—varies between £118.80 in Hartlepool to £160.88 in Durham. The rationale for this does not appear self-evident.

There is great concern about the so-called two tiers of contract under which firms can opt to act only for their own clients or in addition undertake duty solicitor work, whether it be at police stations or at court. There is a widely held view locally and indeed nationally that the former group will fall away because of the limited number of cases in what is in any case a declining number of cases overall, as testified by the court closure programme—in itself controversial but justified by the Government because of lack of demand. National and civil legal aid expenditure fell by 11% in the last quarter of 2014 compared to the same period in 2013. The number of magistrates’ court cases fell by 17%, committals for sentence by 29%, and all non-Crown Court crime by 7% in volume and 14% in value.

I discussed the situation with partners in my old firm, where the criminal department is a relatively small part of the practice, and with the senior partner in another practice where it is much more significant. During my 35 years as a partner, and since, the criminal department made a very modest contribution to the firm’s profits but was maintained because we felt we ought to offer the service. It would appear that the average profit margin on criminal legal work is around 5%. An experienced solicitor might expect to earn only around £40,000 a year, significantly less than in other areas of practice, even in firms with a larger criminal department. Firms are not recruiting trainee solicitors and, even if they wanted to, it is unlikely that many would apply when there are much more financially rewarding areas of law in which to practise. There is therefore likely to be a shortage of able solicitors in future, and of course the Bar, which has temporarily escaped the second round of 8.75% cuts, faces the same potential problem, with adverse consequences ultimately for recruitment to the judiciary, as senior judges have pointed out. The Justice Minister Mr Vara’s suggestion that work could be carried out by legal executives underlines the point while ignoring the fact that many firms cannot even now afford to employ legal executives as well as solicitors.

The difficulties that I have outlined are not, of course, restricted to the north-east. A particularly illuminating article by Steven Bird was published by the London Criminal Courts Solicitors’ Association. It demonstrated that some areas in the south-east would see some police station fees cut by more than 30% and that magistrates’ court fees, falling into what would have been the higher fee band, would be cut by an average of 52.7%. In London, a flat rate of £200.93—I love the precision of the 93p—will mean a cut varying from lucky Bexley of 8.67% to Heathrow of 33.25%. In the complex new arrangements for Crown Court cases where the new PPE applies, with different fees for each band of 100 pages up to 500 and 11 different categories of offence, fees could be cut by 50% or more.

Members will be aware that the measures now under way evoked both a strike, in effect, by solicitors and an unusually close degree of joint working between the Law Society and the Bar, as evidenced by the material published by the Criminal Bar Association. The irony of this latest assault on our cherished system of legal aid and access to justice, already compounded by the ludicrous criminal charges order which is the subject of another regret Motion that I have tabled, in the year when we have celebrated the anniversary of Magna Carta, is clearly lost on this Government. We learnt not to expect more of Mr Grayling, but had hopes of Mr Gove. It is not too late for him to think again about the changes due to take effect next January. He acted, after all, to abandon Mr Grayling’s vanity project for the secure college at Glen Parva.

In the mean time, perhaps the Minister, if not tonight then perhaps by way of a letter to be placed in the Library, could answer some questions. What, if any, contingency plans are in place if an insufficient number of firms of solicitors accept contracts for duty solicitor work in police stations or courts? How will the Government react if the contract process is disrupted by legal challenges from unsuccessful bidders? What plans exist to deal with the situation arising from contracts becoming unviable during the period for which they are to run? What assessment has been made of the ability to survive of firms with only an own-client contract and, in the event of a significant number of firms failing to do so in any locality, what contingency plans exist to deal with the problem? What assessment has been made of the impact of the changes on the number of solicitors needed to provide an efficient and accessible service and upon recruitment?

Will the Minister look into the parallel matter of the emerging problem of long delays in trials proceeding because of short staffing in the Crown Prosecution Service? What future does the Ministry of Justice foresee for the Public Defender Service? How many advocates does it plan to employ and on what terms? Will the service be required to compete with private firms or is it seen as a resource of last resort where insufficient private firms fail to survive the new regime? When will the workings of the new structure be reviewed?

Finally, what assurance can be given that it is not part of the Government’s intention for criminal legal aid work to be consigned to oligopolies, such as the likes of G4S, Serco or Sodexo, upon which they increasingly rely to provide public services?

Concern about access to justice in general, and the future of legal aid in particular, has been a regular feature of this House’s deliberations in the five years that I have been privileged to serve in it. We seem to be witnessing the slow death of legal aid. I hope that we will not, in the near future, be obliged to act as a coroner’s jury, performing an inquest on its ultimate demise. I beg to move the regret Motion.

[Lord Marks of Henley-on-Thames (LD)]

My Lords, I refer to my registered interest as a practising barrister, though not undertaking work in the criminal field.

The fact that this Regret Motion is being debated at all is evidence of a problem that has bedevilled the relationship between the legal professions and government for many years now. Governments of all complexions have failed to seek consensual solutions to the challenge of providing a publicly funded criminal justice system that will work successfully both for the public and for the two essentially private sector professions. A mutually supportive and trusting relationship between the professions and government is essential if our criminal justice system is both to be effective and fair and, at the same time, to command public confidence. There is a crying need for the Ministry of Justice to work more closely with the professions to reach an acceptable agreement—a compact—for fees and future allocation of work. The constant war of attrition over recent decades has damaged government and the legal professions and should not continue. This was a view held and often expressed by my noble friend Lord McNally when he was a Minister, although of course he was bound by the constraints placed upon him by being part of the coalition Government with the overwhelming need to find cost savings. This Government are also so constrained, and we understand that.

I will speak of the reductions affecting criminal work, and my noble friend Lord Carlile of Berriew will speak largely about the changes affecting work for prisoners.

The background against which the implementation of the second stage of the 17.5% reduction in fees is being imposed is a great deal more favourable than it has been for some years. Sir Bill Jeffrey summarised this at the start of his extremely helpful report, Independent Criminal Advocacy in England and Wales, published in May 2014. He wrote that:

“The landscape of criminal advocacy has altered substantially in recent years. Recorded and reported crime are down. Fewer cases reach the criminal courts. More defendants plead guilty, and earlier than in the past. Court procedures are simpler. There is substantially less work for advocates to do. Its character is different, with more straightforward cases and fewer contested trials. In the publicly funded sector (86% of the total), it pays less well”.

The climate should, therefore, present us with opportunities to make improvements to the criminal justice system, to make it work better and more cost effectively by collective and collaborative effort and working on a clearly evidenced-based approach. Yet the introduction of these regulations has been far from that.

Human Rights and Civil Liberties

Lord Marks of Henley-on-Thames Excerpts

Thursday 2nd July 2015 Lords Chamber

[Lord Marks of Henley-on-Thames (LD)]

My Lords, we have had a very strong debate, at a time when the Conservatives’ manifesto commitment to,

“scrap the Human Rights Act and introduce a British Bill of Rights”,

appears at least to have softened. The Government are now to bring forward proposals and there is to be a consultation. Will the Minister clarify what is intended? Will we have an open consultation seeking ideas for a new Bill or will it be based on a set of proposals or a draft Bill? While there may be advantages in saying what is proposed, there may also be benefits in inviting broader new ideas. I hope that the Minister will also respond to my noble friend Lord Lester’s invitation to confirm that the Government will not leave the European Convention on Human Rights. If so, it must follow that the Government accept our convention obligation to comply with the decisions of the European Court of Human Rights in Strasbourg.

During the debate on the Queen’s Speech, the noble and learned Lord, Lord Mackay of Clashfern, who is not in his place today, said that the failure to implement the court’s decision on prisoners’ voting rights had left our obligation,

“in suspense in the sense that it has not been complied with”,

and he expressed,

“great anxiety that the United Kingdom, with its tradition for respect of the rule of law, not the rule of lawyers, should be in breach of a treaty by which it is bound”.—[Official Report, 1/6/15; col. 179.]

I share that anxiety. The noble and learned Lord suggested a possible way forward. It might be possible, he said, to negotiate an amendment to the convention for a country such as the United Kingdom in which the courts have no power to strike down legislation, permitting Parliament to resolve not to implement a decision of the court for stated reasons. That suggestion has generated considerable discussion, which is not surprising considering its provenance. I hesitate to disagree with the noble and learned Lord but, on reflection, I have three reasons for not pursuing his suggestion.

The first is purely practical: I doubt that other contracting states would agree to it; indeed, I see no reason why they should. Secondly, given the United Kingdom’s traditional international leadership on human rights, we should not be trying to negotiate what is essentially an opt-out from the convention. Thirdly and most importantly, it is precisely because the United Kingdom is bound by its obligation to comply with the court’s decisions that the convention acts as an effective international guarantee of our human rights, particularly given that our courts cannot strike down incompatible legislation. The danger of Governments securing parliamentary approval for non-compliant government action when they dislike decisions of the Strasbourg court is something we should be vigilant to avoid.

The noble Lord, Lord Cashman, movingly emphasised the point that human rights are needed to deal with exactly those rights the Governments do not like. The noble and learned Lord, Lord Brown of Eaton-under-Heywood, made the same point, with a very large number of examples, in a different but equally effective way.

If this proposal is to proceed, a new Bill must preserve the careful balance found in the Human Rights Act between Parliament and the courts whereby the courts are bound to interpret legislation in a way which is compliant with the Act where they can but, where they cannot, have the power not to strike down legislation but to grant declarations of incompatibility, leaving Parliament to make the final decision as to whether to change the law. This careful balance, mentioned by my noble friend Lady Ludford, is part of the genius of the Human Rights Act. Will the Government retain it?

Any new Bill must also ensure that the existing United Kingdom jurisprudence on the convention is preserved. The noble and learned Lord, Lord Hope of Craighead, memorably described it in the Queen’s Speech debate as embedded in our law like Japanese knotweed, an analogy so graphic that he should perhaps be forgiven its pejorative overtones. The Commission on a Bill of Rights established by the coalition Government was tasked with investigating the creation of a UK Bill of Rights that incorporates and builds on all our obligations under the European Convention on Human Rights. The majority of the commission, including the Minister and my noble friend Lord Lester of Herne Hill, agreed that there should be a British Bill of Rights—although, as my noble friend pointed out, the Minister questioned the view that we should be committed to staying within the convention. The minority comprised the noble Baroness, Lady Kennedy of The Shaws, and Professor Philippe Sands. They were concerned particularly that opening up this area might risk a reduction in the protection of human rights in this country. I share their concerns, and on these Benches we will be determined to ensure that any new British Bill of Rights continues to guarantee convention rights in United Kingdom law no less effectively than does the Human Rights Act.

If this proposal is to go ahead, we would like to see it as offering an opportunity to Parliament to entrench extra, distinctively British rights in a new Bill of Rights, as recommended by the Joint Committee on Human Rights in their 29th report in 2008. In the justice field, the right to trial by jury in serious criminal cases in England, Wales and Northern Ireland is fundamental. Would it not be fitting to mark the anniversary of Magna Carta by enshrining that right in a new Bill? We should also, I suggest, restate our commitment to administrative justice. The development of administrative law over recent decades has been one of the greatest achievements of the modern common law. Should we not therefore guarantee a right to administrative action that is lawful, reasonable and administratively fair? Such a right is entrenched in the South African constitution. We would also strongly support incorporating the United Nations Convention on the Rights of the Child in domestic law. At a time when mistreatment and abuse of children and their condemnation by government agencies has been the subject of such shame for some in this country, that step would mark our commitment to children in our society.

The consultation will provide an opportunity to consider incorporating fundamental social and economic rights, as the 2008 report of the Joint Committee suggested. Jurisdictions including South Africa, some in Scandinavia and some other European jurisdictions have done so. Fields which might be appropriate include healthcare, education and basic subsistence housing, subject to an “available resources” exception. In this way, I would hope that we might develop the Government’s proposals in a way which both meets the challenges facing human rights, presented by those who do not sufficiently value them, and defines and enshrines in law our commitment to many of the fundamental values that underpin our society. The fundamental point remains, however. On these Benches, we will oppose any attempt to reverse the incorporation of convention rights into domestic law.

My response to the noble and learned Lord, Lord Carswell, is that his solution of repealing the Human Rights Act while retaining the convention would involve limiting the citizens of this country to their remedies in Strasbourg, with all the expense and delay that that would necessarily involve. It would also remove the domestic courts and Parliament from their legitimate role in interpreting and enforcing convention rights within the United Kingdom. That role is preserved by the Human Rights Act, and Parliament and the courts are able to take their part in our system of human rights. That role is something which I suggest we should always preserve and cherish.

Legal Aid, Sentencing and Punishment of Offenders Act 2012

Lord Marks of Henley-on-Thames Excerpts

Wednesday 10th June 2015 Lords Chamber

[Lord Faulks]

I can assure the noble Lord and the House that all the Ministers in the Ministry of Justice are wedded to the rule of law and to access to justice. But the question that arises out of social welfare law is whether it is always necessary for everybody who has quite real problems to have a lawyer at £200-odd an hour, or whether there are better and more effective ways of giving advice.

[Lord Marks of Henley-on-Thames (LD)]

The National Audit Office also reported on the LASPO reforms last November. A key finding was that there had been, as predicted, a large increase in litigants appearing in person, with an estimated extra cost of £3.4 million a year. May we now have a full and urgent cost-benefit analysis to assess what changes could be made to improve access to justice without driving up unduly the cost to the public purse?

[Lord Faulks]

Well, it is interesting that the noble Lord is now very much against the legislation that the coalition Government promoted. Neither his party nor the Labour Party in their manifesto suggested that they would reverse any of these cuts. Indeed, they did not suggest in either of their manifestos that they would look at it any earlier than we intend to do. Of course—

[Lord Marks of Henley-on-Thames]

My Lords—

[Noble Lords]

Order.

Civil Proceedings and Family Proceedings Fees (Amendment) Order 2015

Lord Marks of Henley-on-Thames Excerpts

Wednesday 4th March 2015 Lords Chamber

[Lord Brown of Eaton-under-Heywood (CB)]

My Lords, one problem with a Bill that stretches to 186 clauses and 11 schedules and occupies 232 pages of the Queen’s printer’s copy is that, at least by the time that Clause 180 is reached, this House’s scrutiny powers begin to wane. Thus it was that, last year, by passing Section 180 of the Anti-social Behaviour, Crime and Policing Act, the Lord Chancellor was empowered to prescribe by statutory instrument, subject to affirmative resolution, court fees exceeding the cost of doing that for which the fee is charged—enhanced fees, as they are called. That Section 180 power must be reasonably, sensitively and fastidiously used. It is bad enough that the courts should be required to be self-financing at all. The justice system properly exists for the benefit of society and the economy as a whole. There has long been objection to the basic principle of full cost recovery.

To put that aside, the order for enhanced fees goes altogether further. In a real sense, it is selling justice—apparently contrary to Magna Carta, although now sanctioned by Section 180. Small wonder that it is characterised by some as a tax-like payment rather than a realistic charge for the use of the courts. Under Section 180(6), the enhanced fees,

“must be used to finance an efficient and effective system of courts and tribunals”.

That is small comfort to those who pay enhanced fees. Why, they will not unnaturally ask, should they be subsidising the family courts or whatever other proceedings are brought which do not attract the enhanced fee liability?

That is the first, fundamental, principled objection to the order. It is an objection not just in abstract constitutional terms, but because it must inevitably carry with it reputational consequences. Frankly, it sullies the overall image of British justice, no part of which should be open to criticism as a profit-making enterprise.

The second main objection is in two linked parts. First, to some extent at least, enhanced fees are bound to deter prospective claimants from litigating their claims. The second, necessarily linked, part of the objection is that, to the extent that claims are deterred, enhanced fees will fail in their central objective of raising money. The greater the number of claims deterred, the smaller the additional sum raised by the increases.

I add four footnotes to that objection. First, as explained in the Civil Justice Council’s response in December and the Lord Chief Justice’s letter written on behalf of all the heads of division, those dramatic increases, which, as we have heard, are in some instances over 600%, have to be paid up front and in full and are likely to impact disproportionately on SMEs and litigants in person. Of course, as the Minister observed in an answer at Question Time last week to the noble and learned Lord, Lord Mackay of Clashfern, the heads of division were indeed consulted, but even after modifications were made they continued to voice “deep concerns” about the proposals.

Secondly, as explained in a detailed briefing paper from the Law Society, the Bar Council and various other professional bodies, clinical negligence and personal injury cases, to which the noble Lord, Lord Beecham, referred, are likely to be adversely affected.

Thirdly, contrary to the Government’s bland statement that they are confident that the concerns expressed about the risk of damage to our legal services, and London’s reputation as the leading commercial dispute resolution centre, are misplaced—a bland assurance seen in their January 2015 response to the consultation and in Appendix 2 to the House of Lords Secondary Legislation Scrutiny Committee report—in fact 61% of the 158 people who responded on this issue to the BIICL research which was especially commissioned by the Ministry of Justice suggested that the proposed increase in fees could have a detrimental effect on the English litigation market, with 44 of those consulted considering this to be “highly likely”.

Wisely, following the consultation, the Government abandoned their initial proposal, which was to raise yet higher enhanced fees of up to £20,000 for the issue of the higher-value commercial claims in the Rolls Building, on the basis that this would be likely to kill or, at any rate, severely lame the golden goose that has paid the vast sums which this litigation has earned the nation—billions of pounds-worth, a lot of it foreign currency. It must surely follow from that abandonment that even £10,000 is likely at least to deter some foreign claimants from litigating their claims here or to drive people, if not actually to abandon their claims, at any rate to resort to arbitration or mediation, as the noble Lord, Lord Beecham, also suggested.

With regard to my fourth footnote—I say this in fairness to the Government—unlike certain others, I do not see the employment tribunal fees experience as a directly helpful analogy. No doubt the introduction of those fees, whereas before there were none, has discouraged a number of meritorious claims but I suspect that it has discouraged at least as many unmeritorious claims—speculative claims, which used regularly to be brought and then bought off or settled because, frankly, that was a cheaper option for the defendant employers than successfully resisting them and then being left to bear their own costs, which were quite likely to be very substantially more.

A third and final reason for objecting to these increases is that they are not only intrinsically unfair when levied at this level but, in addition, produce curious and unfair anomalies. An obvious one is that all claims not specifically limited are now to attract the maximum full fee of £10,000. It is true that the Civil Justice Council said that it could see no logical justification for distinguishing between specified and unspecified money claims, and as far as it goes that is right. However, as the Lord Chief Justice’s letter points out, in personal injury cases, for example, it may well be quite impossible to value the claim when it is issued. Similarly, in many of the Rolls Building commercial cases, damages may be a subsidiary consideration. The principal relief being sought may well be an injunction or some other remedy—perhaps an account or something of that character.

My final point is that the Government are now proposing yet further enhanced fees, with a view to raising a further £55 million annually. They propose to do this—it is the subject of the January 2015 consultation document—by raising fees in possession cases and upon applications of one sort or another being made in ordinary civil proceedings. Again, there are compelling arguments against those, summarised in the Civil Justice Council’s response in February to the latest consultation round, but it is not necessary to go into them today.

Today’s Motion is of course one of regret rather than a fatal Motion. For whatever reason, Labour has apparently not been prepared to go that far. However, it will, I hope, help at least to persuade the Government that enough is enough and that really there must be no more use of this enhanced fee power. I suggest that the order is not merely to be regretted but to be deplored.

[Lord Marks of Henley-on-Thames (LD)]

My Lords, I regret that I find it difficult to understand what has made the Ministry of Justice persist with these changes in the face of the well reasoned and overwhelmingly hostile reaction to them. The ministry’s impact assessment was based upon express assumptions, described as “key”, that,

“fee changes will not affect court case volumes”;

that,

“there are no detrimental impacts on court case outcomes nor on access to justice from any increase in court fees”;

and that,

“there are … no impacts on the legal services used to pursue or defend claims”.

It was those assumptions to which the senior judiciary referred in their letter dated 19 December 2014, to which reference has already been made, which led the Lord Chief Justice to describe the proposals as,

“very sweeping and, in our view, unduly complacent”.

For judges not inclined to overstatement, that is trenchant criticism indeed. The letter was based upon the draft impact statement, which the senior judiciary had seen. Notwithstanding that criticism, the assumptions nevertheless found their way into the final impact statement when it was made on 16 January this year.

When the noble Lord, Lord Howarth, asked a Question of the Minister last Thursday, my noble and learned friend Lord Mackay questioned why these measures had not been introduced with the consent of the heads of division. Cynics, and anyone who had read the letter of 19 December, could be forgiven for the view that the reason why such consent was not sought was that it clearly would have been withheld for the very reason that the assumptions made by the department were unsustainable.

It was not only the Law Society and the Bar Council that prepared a briefing on these proposals. Other professional bodies as disparate as the Association of Personal Injury Lawyers, the Forum of Insurance Lawyers —who, of course, are usually on the other side—the Association of Business Recovery Professionals, and COMBAR, the Commercial Bar Association, joined them in referring to the evidence from individual law firms, to which the noble Lord, Lord Beecham, referred, that:

“Over 200 individual examples provided by law firms show that the total value of cases brought by individuals would be likely to fall by around one-third (35 per cent) under higher court fees. For small and medium-sized companies it would halve (a 49 per cent decrease). This suggests that increased court fees could have a significant impact on access to justice for both individuals and businesses, as fewer could afford to pay the higher rates”—

a point eloquently made by the noble and learned Lord, Lord Brown of Eaton-under-Heywood.

Probation

Lord Marks of Henley-on-Thames Excerpts

Thursday 12th February 2015 Lords Chamber

[Lord Faulks]

I presume that the noble Lord is referring to the judicial review instituted by NAPO that was withdrawn by NAPO, which was ordered to pay the substantive costs of that judicial review. As to pre-sentence reports, there is a 97% response rate of timely reports. As all those who have had to sentence offenders will appreciate, from time to time before this transformation there were delays in these reports. It is greatly to the credit of the probation service that it has maintained this standard. It is to be congratulated on the hard work that it is doing in coping with this transformation.

[Lord Marks of Henley-on-Thames (LD)]

My Lords, can my noble friend the Minister tell the House what progress is being made by the Probation Institute—the professional body for which many of us argued and which was established last year by the Probation Chiefs Association, the Probation Association and the two trade unions NAPO and UNISON? What role do the Government believe this institution might have in ensuring the continuing delivery of effective probation services?

[Lord Faulks]

My noble friend is quite right to draw the House’s attention to the Probation Institute, which, as well as providing assurance that existing standards are to be maintained when the various bodies to which he referred are combining, is also there to capture the innovation that we hope will follow the Transforming Rehabilitation programme. It has been going for a year, involves all those concerned with probation, and will help with training, research and the establishment of good practice.