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.

Criminal Justice and Courts Bill

Lord Marks of Henley-on-Thames Excerpts

Tuesday 9th December 2014 Lords Chamber

[Baroness Butler-Sloss (CB)]

My Lords, I am a patron of a secure unit in Exeter, the Atkinson unit, which at the moment has troubled children coming under Section 25 of the Children Act, but it used to have children from the Youth Justice Board. It is a very small unit, taking 10 to 12 children. From my frequent visits there I have had the opportunity to see how this very small unit works extremely well with young children—those under 15. I am very unhappy about the Government’s proposals that children as young as under 15 should go into a large group of children, many of whom will be over 15, from whom they can learn all too much. I therefore also support the noble Lord’s amendment.

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

My Lords, the arguments on this issue have already been well developed today by other noble Lords who have spoken, as well as at earlier stages of the Bill. I do not propose to develop the position that I have taken earlier in the Bill’s passage.

We all know that the reason for this House’s amendment was that the virtually unanimous professional evidence is to the effect that it would be unsatisfactory to place a small number of girls and younger boys in a secure college with a very large number of older boys. The pathfinder college at Glen Parva in Leicestershire is proposed to hold about 320 young people. There are currently only about 45 girls and 40 offenders under 15 in custody throughout the secure estate. Even adopting for Glen Parva a very wide catchment policy—which would itself be undesirable because of the distances these children would be from their homes, although I accept that that is not always a negative—it is highly unlikely that more than about 15 girls and 15 boys under 15 could be placed in Glen Parva. In my view, that is entirely unacceptable. It would be intimidating and unsafe for either group to be in this tiny minority in this very large secure college.

The Government say that they will not put boys under 15 or girls into Glen Parva at its opening. In a sense that concedes the case. They nevertheless say that they wish to be free to put boys under 15 and/or girls in Glen Parva or other secure colleges in the future. They propose to go ahead with the building of the two houses for these groups at Glen Parva. The design for Glen Parva has those two houses for girls and younger boys cut off from the main site, but the children held in them would share the main health and education block and access to the main site with a very large number of older boys.

My noble friend says that the Government will not use secure colleges in this way until they lay a report before Parliament. However, originally they did not say who would write that report. It now appears from what my noble friend said that it is the Secretary of State who will do the consulting and therefore, presumably, the Secretary of State who will prepare and approve the report. However, it is the Secretary of State’s own plan to use Glen Parva. The Minister does not say whether it will be incumbent upon this or any future Government to follow the recommendations in a report, nor has he offered any effective form of parliamentary scrutiny. An offer of a chance for Parliament to debate the report, with no right to stop a proposal proceeding, is no safeguard.

I have made it clear to my noble friend that I would want to agree a compromise on this issue if it were possible to do so. In particular, I accept that there is no definition in the Bill of what is meant by “secure colleges” or what size they should be. They could be smaller colleges than Glen Parva and more specialist, so that an educational environment that was mixed in gender and age might not be so inappropriate. However, that is not what is proposed at the moment. If the Government were to offer not to put under-15 year-olds or girls into secure colleges without parliamentary approval, that would offer Parliament a chance to consider and vote on any new circumstances that might be said to justify the detention of these groups in secure colleges. However, when my noble friend Lord Willis asked the Government for such an assurance, he was categorically refused it. The noble Lord, Lord Beecham, says that he was naive to ask for it. I do not believe that it is a naive request; it is a justified and justifiable one, and the Government’s position can be sustained only if they accede to it.

To date, no opportunity for parliamentary scrutiny has been offered. In these circumstances, while I have listened very carefully to what the Minister has to say, I find it impossible to support the Government’s position.

[Baroness Armstrong of Hill Top (Lab)]

My Lords, I support the noble Lord, Lord Ramsbotham, largely because since this House last discussed secure training colleges, two secure training centres have been given notice of closure by the Youth Justice Board. One of those, Hassockfield, was in my constituency. What lessons have the Government learnt from the introduction of secure training centres? My recollection is that I opposed them when we were in opposition when the legislation went through in, I think, 1996. My Government said that they had to carry that through because the contracts had been signed. When Hassockfield opened, I was contacted virtually daily by the police who said, “The children in here are too young. They do not understand what it means to be in a secure establishment. We are being called every day and they’re ending up in police cells”. Indeed, they wrecked the place. So the initial contract, which was given to an American company, then went to Serco. Someone from the Youth Justice Board had to be in there full-time to sort out the regime, and since then Hassockfield and, I understand, the other secure training centres have not taken many children under 15 because the regime in a secure centre, even with what Ofsted says is now very good education, is not suitable for young children.

The other issue is about being near home. There was a tragedy at Hassockfield. I discussed it at great length with a whole range of people, and one of the reasons for that young boy taking his life, although by no means the only one, was his distance from home and his contact with home and his own community.

The Government are taking enormous risks with the safety—and the ability to change and handle their lives—of children in incredibly complex difficulties. In relation both to having one centre in the middle, to which children have to travel a long way, and to the issues of the age group and including girls, the Government need to learn the lessons of their own history in setting up secure training colleges. They should think about this again and look at the language used when the colleges were introduced. It was very similar to the language that Ministers used in this House today and in the Commons last week. If they do so they will recognise that they are making a mistake and that they really do need to rethink this policy.

--- Later in debate ---

[Lord Faulks]

My Lords, this has been a lengthy debate in which we have had some important contributions from a number of noble Lords, some of whom have been with us for the whole journey of scrutiny and some of whom have made their first appearance today. I am sorry that more noble Lords were not able to participate in the very considerable number of meetings in which the Government explained what they were doing. We answered many of the questions which have been raised by a number of noble Lords for the first time today. We answered them in correspondence. We also had a number of meetings in which we went through the plans. While I do not wish any disrespect to those noble Lords who have asked a number of questions to which I have already given the answer in various contexts, I hope they will forgive me if I refer significantly to the debates that have already taken place at Second Reading, in Committee and on Report, and to various letters to all Peers. I will try to keep my remarks as short as is consistent with answering the general burden of the debate.

I was disappointed that my noble friend Lord Marks said that there had been no opportunity for parliamentary scrutiny. I accept that the scrutiny may not have satisfied him or other noble Lords that the plans are appropriate, but scrutiny there has been.

[Lord Marks of Henley-on-Thames]

I am sorry to interrupt my noble friend but he has plainly misunderstood what I was saying. I am not complaining about the scrutiny of this Bill. I am complaining about the lack of a parliamentary approval proposal from the Government before girls and under-15s can be placed in secure colleges.

--- Later in debate ---

[Lord Glenarthur]

My Lords, before my noble friend sits down, perhaps he would reconsider the issue of whether it is more appropriate to go to the affirmative resolution rather than the negative. I have sat on the Front Bench for many years with many of my colleagues here and have been through the same debate, but often it is wiser and more sensible to try to pursue something that allows Parliament to have that debate rather than simply to brush it aside. I understand the negative procedure only too well, and I hope that on this point my noble friend will reconsider.

[Lord Marks of Henley-on-Thames]

My Lords, before my noble friend answers that question, will he confirm to my noble friend Lord Glenarthur and the whole House that the present proposal is that there would be no parliamentary procedure at all apart from the laying of a report for consideration—no vote, no regulations and no SI is proposed?

[Lord Faulks]

I thought that I had made it reasonably clear that there will be the laying of the report. That is the limit to which I committed and I commit to it now. It is beyond what we committed before. It may not be enough for some noble Lords but none the less the report, informed as I have said that it will be, will enable Parliament to consider whether it is appropriate.

--- Later in debate ---

[Lord Horam]

I totally agree. I said on a later clause. Here, we are dealing with a situation where the actual result would be highly unlikely to make any difference. The noble Lord’s point would not occur because obviously they would hope to win their case. Here we are dealing with cases where it would be highly unlikely to make any difference at all and therefore the point made by the noble and learned Lord, Lord Woolf, does not arise.

There is abuse which I think is doing the rule of law and judicial review damage. That is a real problem. How does this Bill affect that? There is a suite of measures here to deal with the treatment of interveners, financial transparency and lowering the bar slightly in meritless cases where it would make no difference to the eventual result. That is a complex series of measures and we do not really know—I do not suppose the Government know entirely—what effect they will have but clearly it is an attempt to remedy abuse. Remedying abuse in this case would serve the purpose of government. It would certainly help judicial review because it would diminish the impression that people have, rightly or wrongly, that it can be used and abused in the way I have described and is happening up and down the country. You could argue that it would not really detract from judicial review but in many ways would improve its performance. I say to my two Conservative colleagues that one aspect of being a Conservative is that very often you want to improve things for the sake of keeping them as they are. It is a classic Conservative position. I would not regard it in any way un-Conservative to be asking to improve these matters rather than defending the status quo, warts and all.

I think there is a serious problem here. The Government are addressing it. Noble Lords may disagree with the way they are addressing it. I think that the Government need some understanding of where they are coming from. In response to the views in the other place, they have listened and changed their position; not here, I agree, but in later amendments. I wholly agree that the discussion in the other place was truncated and in many respects very unsatisfactory, as has been pointed out. None the less, between the two Houses, we are beginning to get to a more rational and sensible position that acknowledges that there are problems and tries its best to find a way through without damaging judicial review.

[Lord Marks of Henley-on-Thames]

The Government have repeatedly characterised this clause as being concerned with cases involving procedural irregularities only. Indeed, the Minister used the term “technicalities” as a diminutive, which is inappropriate. Such terms are inaccurate in relation to this clause. At very best, they are inadequate. These are public law cases concerned with unlawful conduct of the Executive where an organ of government has ignored the law in taking or carrying out decisions.

With the greatest respect to my noble friend Lord Horam, I must say that his assertion that the system of JR is rife with widespread abuse is unsupported by the evidence. Nor does he take into account the fact that judicial review is, at its heart, about decision-making in accordance with law. Nor does he take into account the fact that, certainly over recent years, judges have made it very difficult indeed, in the exercise of their discretion, for unmeritorious cases to get permission to proceed.

I do not regard this clause as merely protecting government from the effects of minor procedural errors that have made no difference to decision-making. I regard it, as do other noble Lords who have spoken, as an attack on the rule of law and an attack on parliamentary democracy. To take the example given by my noble friend Lord Lester, where a statute is passed by Parliament, often after discussions such as the ones that we have had on this Bill, which requires that the Government consult before making a decision, it should not be open to government to flout that requirement imposed by Parliament and then claim an immunity from judicial review on the basis that a lawful consultation would have made no difference to the outcome of the decision-making so that permission and relief should be withheld. That is the heart of the point made by the noble Lord, Lord Deben.

The public interest amendment of the noble Lord, Lord Pannick, reflects an amendment that I moved in Committee. If carried, and if this House insists on it, a court will not be compelled to say, where a government department has acted unlawfully, that the decision would have been the same anyway and therefore permission to apply for judicial review must be refused and relief must be withheld. The court will instead be able to say that the decision was illegal and, before it can be properly made, the Government must follow the law—quite simply because that is what the law requires. That is the rule of law. That respects the will of Parliament. That gives effect to be principle of government accountability. This House has a constitutional duty to be very careful indeed when what is happening here happens—when the Executive seeks parliamentary sanction for breaking the law, as this clause does. I shall support the amendment of the noble Lord, Lord Pannick.

[Lord Mackay of Clashfern (Con)]

My Lords, the question in this particular amendment is a simple one. The courts have developed law in relation to situations in which the outcome would not be any different if the conduct complained of had not occurred. My understanding of the decision in that area is that the court may decide, if it concludes that the result would inevitably be the same, that the relief is to be refused.

The government Motion that is the subject of this substantial debate simply raises the question of whether that would be inevitable or “highly likely”. In the civil law, of which judicial review is part, the ordinary rule is that the balance of probabilities determines the fact. That is the question that was raised here and there is quite a lot to be said for that point of view. But the situation tonight is affected by the way the debate was conducted in the other place. It is not for us—it is certainly not for me and not for any of your Lordships—to criticise what happened in the other place. On the other hand, the Lord Chancellor has apologised to a Member of the other place for the mistake that he made, which is fairly fundamental to the consideration of this amendment. Therefore, for my part, I would like to see this amendment going back to the House of Commons, not necessarily to change the result—that is a matter for the Commons—but so that the debate should proceed on a basis that is 110% correct.

--- Later in debate ---

[Lord Marks of Henley-on-Thames]

My Lords, throughout the passage of the Bill, my concern with these clauses has been that they would require any individual who was minded to support a judicial review application financially to disclose to the court his or her resources. That requirement is coupled with a requirement for the court, when considering questions of costs, to consider making a costs order against a supporter of an unsuccessful application, making use of the information disclosed.

With the greatest of respect to his argument, the Minister understated the effect of Clause 66. He said that the court would have to consider the information; what he did not take into account was that the court would be enjoined to consider making a costs order against the supporter. The inevitable effect of that would be to deter people from supporting judicial review applications financially. Group applications—for example, by groups of villagers or school parents—would then become very difficult indeed to fund.

This House’s amendments gave the court a discretion relating to financial information and costs orders. The Commons rejected our amendments and, in response to the concerns raised, my noble friend Lord Faulks and the Government have nevertheless introduced an amendment to provide that rules of court would exempt some supporters of judicial review applications from the financial disclosure requirement, provided their support did not exceed a level to be,

“set out in the rules”.

The difficulty, as the noble Lord, Lord Pannick, pointed out, is that the Government and my noble friend have given no indication of the level of support intended to be covered by their amendment. My noble friend and his officials—I am grateful to him and them for this—have met me and, I understand, others to discuss this amendment. I quite understand their position, enunciated by the Minister, which is that further work would need to be done to set an appropriate level. However, the Government are able to say nothing as to the level intended, except that it is likely to be a “few hundred pounds at most”. That is not satisfactory.

A very limited exemption for small-scale supporters would not significantly reduce the chilling effect of a disclosure requirement. It will not be anything like enough to enable groups to raise meaningful funds to support JR applications. I remind the House that most solicitors now charge about £250 or more per hour, even outside London. For the exemption to be meaningful, a supporter would have to be permitted to contribute several thousand pounds before financial disclosure was required. I accept the formulation put forward by the noble Lord, Lord Pannick, but that could be assessed when formulating the regulations on a percentage basis. I had in mind a figure of 20% as the starting point. I had in mind a figure of somewhere between £10,000 and £15,000 as a likely level below which disclosure would not be required. However, from the Government we have heard nothing, except that it would be figure of a few hundred pounds at most. That is not a significant concession.

What is necessary is that individual supporters providing small or medium sums, who are doing so genuinely to support the application—not as the real principals and not to try to control the litigation—should not be deterred from so doing by the costs threat involved in this clause. We need that as a statement of principle, but it needs to be a statement that shows that the principle has changed to meet the objective that I have just set out.

The Government’s stated aim in these clauses, restated by my noble friend, has been limited to ensuring that wealthy people do not use impecunious applicants to pursue litigation as fronts, with no risk in costs to themselves. He rightly used the argument of shell companies as supporting an argument that their promoters should not get protection. That is an understandable aim, properly expressed by my noble friend, which no one could sensibly criticise. However, I remind your Lordships that the court already has the power to require information and make costs orders against non-parties in such circumstances. However, if the Government wish to legislate to implement their stated aim, it would be entirely reasonable to expect them to limit the legislation to what is required to achieve that aim. That would mean a firm commitment to this House that the level set out in the rules would be such as to exempt from financial disclosure small and mid-range supporters of judicial review applications who were not seeking to control the litigation.

I have made it clear to the Government that I would be prepared to support the amendment in lieu if there were a clear statement that genuine supporters in this category who provided significant funds but did not wish to control the litigation would be protected. In the absence of such a statement, I feel obliged to support the Motion of the noble Lord, Lord Pannick, to insist on the Lords amendments. The Commons will then have to consider whether it is prepared to incorporate the sort of principle that I have enunciated to protect the financing of group litigation and incorporate it into an amendment in lieu when it is sent back to this House.

[Lord Mackay of Clashfern]

My Lords, I had understood the Government’s proposed amendment as conferring power on the rule committee to determine what the rules should be. There is, of course, an ultimate power but I would expect the rules to be fixed by the rule committee, after appropriate consultation and with a fair amount of knowledge of how the whole system works. This kind of amendment would deal with the sort of problem that the noble Lord, Lord Adonis, and I referred to in Committee. The Government’s amendment would be a sensible one to make and the Minister has explained the principle under which it would work. I am perfectly happy to leave that to the rule committee to determine, in the light of its great experience and knowledge of the situation.

--- Later in debate ---

[Lord Faulks]

That is entirely correct. The discretion would exist on whether to award costs. This is the discretion which is fettered, I entirely accept, to the extent that the Government think it is appropriate for it to be fettered because they consider that, because of what results from bringing a judicial review in terms of cost consequences, it is perfectly reasonable to provide within the realms of privacy the basis on which you are funding. That excludes those small contributors whom I have characterised, and whom I accept would be covered by the rules. Beyond that, however, we consider it to be an appropriate obligation. It is there to prevent what has been a potential evil. I will not go over the Richard III case again; the noble Lord, Lord Beecham, is relieved. Undoubtedly there have been cases where shell companies have been used; the case is lost; there is nobody for anybody to recover costs from and again the taxpayer loses. This can happen. This is not a draconian matter: we have made a concession which, I suggest, is a reasonable one. The rule committee can be trusted to come up, with its experience in the matter, with an appropriate compromise reflecting the principles that I have endeavoured to outline on the Floor of the House.

[Lord Marks of Henley-on-Thames]

I have two questions for the Minister. First, will he clarify that the figures for claimants’ costs—and it is, of course, the claimants’ costs that are important when considering financial information—are those related only to straightforward cases? Secondly, will he confirm that I am right in saying that the level that the Government intend as a matter of principle should be reflected in the rules is a level of only a few hundred pounds—in other words, very small contributions rather than significant contributions from larger contributors?

[Lord Faulks]

In answer to my noble friend’s first question, I did use the word “straightforward” and that is entirely correct; I adhere to that. On the second question, I am reluctant to give figures because, for the reasons I have given and in terms of what we are talking about, it relates to a small contribution to a fighting fund. That would not be £10,000 to £15,000. I do not think it is appropriate to go beyond that. That is a matter that I will leave to the rule committee: it will arrive at an appropriate figure in the light of its experience.

Public Protection Sentences

Lord Marks of Henley-on-Thames Excerpts

Wednesday 3rd December 2014 Lords Chamber

[Lord Faulks]

We are aware of our obligation. NOMS has invested a considerable amount in a number of interventions. We are doing our best to provide a variety of courses in order to ensure that they have the opportunity of showing that they are ready for release.

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

My Lords, this Government abolished new IPPs and at the same time introduced a power for the Secretary of State to change the release test. This matter has been raised endlessly in debate and in Questions. Can my noble friend now try to provide some justification for not implementing the power so as to ensure that prisoners whose release would be safer are released quickly?

[Lord Faulks]

I refer the House to the answer I gave to the noble and learned Lord, Lord Lloyd.

Criminal Justice and Courts Bill

Lord Marks of Henley-on-Thames Excerpts

Monday 27th October 2014 Lords Chamber

[Lord Woolf (CB)]

I am grateful to the noble Lord. I had prepared a speech of some length, but I realise, as did the noble Lord, Lord Pannick, that it is important to confine the argument at this stage of the Bill as far as possible. I detain your Lordships only because the Bill is extremely important so far as Part 4 is concerned. In deference to the eloquent speech we have just heard, I want to make a few submissions that are important for the context of why noble and learned Lords—who perhaps do not have interests of their own in raising this matter, which the noble Lord, Lord Horam, hinted at—are very concerned about the Bill.

The reason is that judicial review is the final resort available to the citizen to protect himself against unlawful action. It is a residual remedy and is not available in cases where a specific remedy is given, for example by statute. The only course it is then proper to take is the statutory route that has been laid down by Parliament. Having been a counsel for about five years who frequently was involved in the sort of planning and development matters to which the noble Lord referred, I can say that in most, although not all, of the areas we are concerned with there is specific legislation with specific provisions that explain the circumstances in which proceedings can be challenged before the court. The nature of those circumstances is carefully laid down and is now well known. I do not dispute that that may well need to be looked at again and taken through a critical examination.

However, I emphasise that what the noble Lord, Lord Pannick, was objecting to, and what I object to, is this limitation being placed on judicial review, which is part of the explanation of why in this country we have not needed an entrenched constitution that defines the responsibilities of the Executive and the judiciary and why in the United States they attach so much importance to the separation of powers, which is not part of our law.

We are dealing here with the residual remedy of citizens to deal with their fear of unlawful action by the Executive; that is what we are dealing with in most cases of judicial review. That being so, I suggest that the discretion of the judge to examine the position of the Government, the position of other public bodies and the position of the citizen, and then in accordance with the facts of each individual case decide whether it is appropriate to give relief and what relief should be given, is extremely important.

The amendments that bear my name, following that of the noble Lord, Lord Pannick, are designed not to tackle what is proposed root and branch, but to tackle those parts which say that a judge “must” do something as opposed to “may”. We do so not because we think that judges will be offended if they are told that they “must” do something. We do so because it is critical, if judges are going to get the right answer and do their best to get a just result, that they have the discretion to tailor their response to the facts of a particular case. However carefully we legislate, it is dangerous to go down the line of telling the judges what they have got to do. Everybody accepts that the independence of our judiciary is important. I emphasise the importance of that independence not because it is some right of the judiciary; it is important because the citizens know that a matter in issue, particularly in these important areas, will be considered by a judge who is independent. If we protest that we do not want the judiciary’s discretion cut away, we do so for that reason.

I will say no more because the other matters will, I know, be canvassed by others. However, I hope that I have made it clear why I think that this is a worrying piece of legislation, why I think that Part 4 needs to be carefully considered, and why I share the regret of the noble Lord, Lord Pannick, that although an array of legal talent spoke at Second Reading and explained their worries, it has not been felt right to consult them and try to find better ways of doing this, as has happened in many other parts of the Bill.

Judicial review deals with the public’s rights. In those circumstances, I suggest that if we are not going to fall into the trap indentified by Lord Hailsham in his Dimbleby lecture of 1976 of having an elective dictatorship in this country, we have to safeguard judicial review.

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

I cannot support Part 4 of the Bill. I hope that the House will forgive me if I, too, make some general observations on the whole of Part 4, not limiting myself to Clause 70, to avoid taking up too much time later. As the noble Lord, Lord Pannick, says, there is much work to be done.

At Second Reading, the Minister assured the House that this package of proposals amounted to no more than “proportionate and common-sense reform” of judicial review. My noble friend Lord Horam called it a “small adjustment”. I regret that I see Part 4 as a serious infringement of the right of the citizen to challenge unlawful action by the Executive before the courts and thus, frankly, as an assault on the rule of law. This was the point made so eloquently and forcefully by the noble and learned Lord, Lord Woolf.

This part of the Bill aims to choke off challenges to unlawful action by the Executive. I fear that, if enacted, it will achieve precisely that. The degree to which it is proposed that judicial discretion be curtailed by these proposals is consonant only with a determination that judges should be limited so far as is possible in the exercise of their power to overrule unlawful government action. As the noble Lord, Lord Pannick, pointed out, the effect of Clause 70 would be to stifle any challenge right at the outset of permission stage, where the Executive may have acted unlawfully but where it appears highly likely that that unlawful action has not made any difference to the outcome for the applicant. Whatever superficial attraction there is for such a rule as between the parties to a particular application, the net effect on the public interest, in what are public law cases, would be that unlawful action by the Executive would go unchecked and unreversed.

Clauses 71 and 72 taken together would provide a code for ensuring that any person of means who is minded to support a challenge to an executive decision is to be obliged to provide information, again at the permission stage, about all his current resources and all his likely resources—full financial disclosure, in other words. The court is then to be told that it must consider making an order for costs against any such person based on that information. Many applications for judicial review are funded by public-spirited supporters seeking to have unlawful action by the Executive corrected. Frequently, such supporters have no financial stake in the litigation at all. No one can pretend that the provisions of these two clauses are not calculated to deter public-spirited individuals from lending financial support to judicial review applications.

Clause 73 on interveners provides for a draconian scheme of punishing those who intervene in costs. The general rule—subject to departure in only exceptional circumstances—would be that an intervener would be unable to recover costs from the losing party, win or lose, no matter how meritorious the intervention, how much the intervention is found by the judge to have assisted the court, and how far the intervener brought their broad experience in the field and new and telling arguments to the hearing of the application. Furthermore, and perhaps even more iniquitously, the court would have to order the intervener to pay all the costs of the other parties in the proceedings as occasioned by the intervention. Again, the court would be able to depart from this rule only in exceptional circumstances.

No one can fail to see that that code will deter interventions. It will make it very difficult for those many well known and thoroughly respected charities, and other campaigning organisations with relevant experience and a deep knowledge of their fields, to mount legitimate challenges to unlawful executive action. It will make it very difficult for those organisations to raise money in those circumstances.

At Second Reading, the Minister said in relation to interveners that the Government were,

“persuaded that there may be a case for some modification of the provisions”.—[Official Report, 30/6/14; col. 1542.]

and that he looked forward to “considering possible amendments”. As has been said, a number of amendments have been proposed by noble Lords, but none has been accepted for consideration by my noble friend and his colleagues in his department. The proposed rules on cost-capping in Clauses 74 and 75 again would severely restrict the ability of the courts to protect meritorious applicants in public interest cases from adverse orders for costs. Again, the effect would be to chill and to stifle such applications by the financial threat posed to those of limited means by the risk of an adverse costs order. The fact that a cost-capping order would be available only after permission was granted would only add to the overall effect.

I turn very briefly to my amendments to Clause 70, which are in my name and those of my noble friends Lord Carlile of Berriew and Lord Macdonald of River Glaven. All the amendments in my name should have my noble friend Lord Macdonald’s name to them as well, but for some reason his is not in the Marshalled List. He apologises that he is unable to be here at this stage but he will be here later. I should make clear at the outset that I support the amendments in the names of the noble Lords, Lord Pannick and Lord Beecham, the noble and learned Lord, Lord Woolf, and my noble friend Lord Carlile, which import a general judicial discretion in this area. However, our amendments are designed to ensure that, even where unlawful executive action may have made no difference to the particular applicant before the court or tribunal, the court or tribunal will still be entitled to consider the lawfulness or otherwise of the executive action concerned, to rule on it and to hold the Executive to account accordingly if the public interest so requires it. That principle should apply at the permission stage as well as at the stage of final hearing. We should not forget that these are public law applications designed to protect the citizen and to hold the Government to account. We should be astute, in this House in particular, to ensure that where government acts unlawfully the courts are not debarred or otherwise prevented from saying so.

--- Later in debate ---

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

My Lords, I, too, support Amendment 157 for the reasons already given by the noble Lord, Lord Pannick, and the noble Baroness, Lady Lister. There are indeed currently real perils in Clause 71 in the way of the chilling effect that it must inevitably have. In Committee on 30 July, as reported at col. 1607, in relation to what was then Clause 65 and is now Clause 71, the Minister twice said that the senior judiciary welcomed this provision. I was troubled by that and looked at the response of the senior judiciary of last November. I hope that I have the right document and that I have isolated the right paragraphs; that is, paragraphs 34 and 38. I am sure that the Minister will correct me if I am wrong, They suggest that, in certain circumstances, there should be mandatory disclosure of financial circumstances. As I read that response—and I am unsurprised by this—the important point is that it refers only to when determining whether to make a protective costs order or when questioning,

“whether to make a costs order against a non-party”.

Those are not routine events, and they would not require, as the clause as it stands does, a disclosure of financial resources on all applications. If I am wrong about that the Minister will correct me, but if I am right, with respect, that wholly deprives him of the support on which he rested in Committee: the senior judiciary’s response.

[Lord Marks of Henley-on-Thames]

My Lords, I simply do not accept that it is right that a requirement for financial disclosure should be imposed before the permission stage in a judicial review application. The time for considering such information is when the order for costs is considered, and not before. At the costs stage—the stage with which Clause 72 is concerned—it is clear which side has won, and the judge knows who is and who is not vulnerable to a costs order. Only at that stage is the issue of financial support relevant, and at that stage the present position is that the judge already has the power to make a costs order against a non-party who has financially supported an unmeritorious application. There is no utility in expanding or developing that power further. But if there is to be legislation, I urge the House to accept that it should be left to the discretion of the judge as to what order for costs he makes. There may be some sense, however, in legislating for the court at that stage to have the power to require financial information in order to help the judge form a conclusion. That is the limited purpose of my amendments to Clause 72. With your Lordships’ consent, I shall detain the House no further.

[Lord Mackay of Clashfern (Con)]

My Lords, those of your Lordships who were present in Committee will remember that I read out a substantial section of a book by the noble Lord, Lord Adonis, in which he described what I understood to be the use of judicial review as a means of frustrating a government policy that had been passed by Parliament. I shall not repeat the detail now; it is in the book and I have put it on the record here. The problem on which the noble Lord focuses in that passage is that the arrangements made for pursuing this policy involved looking round for somebody who could be a legally aided litigant, and would therefore be provided with legal aid and also protected against costs in the event of his losing. The full detail is given in those passages.

It seems to me that some mechanism is required to enable the judges to deal with such points as part of the decision on whether permission will be granted to a particular individual to proceed. So far as I am concerned, judicial discretion in this area would be perfectly reasonable and, as has been said earlier, rules of court would be required to deal with it. There is definitely a problem here that needs to be dealt with at the opening stage of the proceedings in order that justice may be done in relation to that kind of campaign, which I have no reason to doubt is accurately described by the noble Lord, Lord Adonis, whom I am sure your Lordships know and respect.

Criminal Justice and Courts Bill

Lord Marks of Henley-on-Thames Excerpts

Monday 27th October 2014 Lords Chamber

Moved by

[Lord Marks of Henley-on-Thames]

174A: Clause 76, leave out Clause 76 and insert the following new Clause—
“Capping of costs: environmental cases
(1) This section applies to judicial review proceedings which constitute or concern an Aarhus Convention claim.
(2) Sections 71, 72 and 73 shall not apply to proceedings to which this section applies.
(3) Notwithstanding anything in sections 74 and 75, in proceedings to which this section applies the court shall make a costs capping order in favour of an applicant for judicial review of its own motion or upon the application of any party in any case where the court considers that if a costs capping order is not made the proceedings are unlikely to be fair, equitable, timely and not prohibitively expensive as required by the Aarhus Convention.
(4) Rules of court may prescribe the terms upon which a costs capping order may be made in accordance with subsection (3) provided that such terms are calculated to ensure that the proceedings will be fair, equitable, timely and not prohibitively expensive.
(5) In determining whether proceedings are likely to be fair, equitable, timely and not prohibitively expensive, the court shall have regard to any relevant reports of the Compliance Committee established pursuant to the Aarhus Convention.”

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

My Lords, I moved amendments in these terms in Committee and so I will try to be brief, although the area they cover is quite complicated. Clause 76 is in the Bill because the Aarhus convention of 1998, which was ratified by this country in 2005, committed the United Kingdom to ensuring that environmental litigation will be,

“fair, equitable, timely and not prohibitively expensive”.

My amendments are founded on the principle that Parliament has a duty to ensure that this country acts in a way that is compliant with its international obligations.

Clause 76 recognises that the restrictions on costs capping orders as proposed in the Bill have the effect of making environmental litigation prohibitively expensive in any case. That is true ex hypothesi, because in a case where a judge would decide that a costs capping order is needed in order to enable an applicant to pursue the application, it follows that the application, if pursued without such an order, would be prohibitively expensive. It is for that reason that rules of court have already introduced rules limiting costs awards in Aarhus convention judicial review claims to relatively low fixed sums. Those sums are £5,000 against an individual applicant, £10,000 against a corporate applicant and £35,000 against a defendant.

However, the costs capping provisions are not the only provisions of the Bill that would put us in breach of the Aarhus convention: so would the provisions on disclosure of actual and likely financial resources and on the consequential orders for costs based on that information, as disclosed. Those provisions would have the effect that sources of support for judicial review applications would be choked off, making them prohibitively expensive for applicants without means, who would be left without the support of those people deterred from giving such support. The provisions on interveners and on costs capping would also have the effect of making environmental cases prohibitively expensive. Our amendments are therefore directed at broadening Clause 76 to exclude Clauses 71 and 72 on information about resources, and Clause 73 on interveners, for environmental cases as well as the costs capping provisions.

A further difficulty with Clause 76 is that it is permissive only and not mandatory, so that the Lord Chancellor is not required to make any regulations excluding the operation of the restrictions on costs capping. The provision is limited to ensuring that he is entitled to do so, if he chooses. Any such regulations that he chooses to make may also, under Clause 76(2), be as wide or as narrow as he chooses. Regrettably, this Lord Chancellor has given us little confidence that he is concerned to make challenges on judicial review less expensive.

Our amendments would also allow for costs capping orders in any case where the court considers that without such an order, the proceedings are unlikely to be,

“fair, equitable, timely and not prohibitively expensive”,

so as to bring the provisions squarely in line with our obligations under the convention. In our Amendment 174A, subsection (4) of the proposed new clause would introduce an objective test which would,

“prescribe … terms upon which a costs capping order may be made”,

to ensure compliance, once again by using the words of the convention. This is particularly important because the compliance committee established under the Aarhus convention has already found the United Kingdom to be non-compliant in a number of respects. The safe course is to ensure that the statute complies with the convention specifically and that there is a requirement that the regulations and rules of court do the same.

A further problem arises regarding definition. Clause 76(1) says that the definition of environmental cases is those cases which are environmental,

“in the Lord Chancellor’s opinion”.

Amendment 174B, which introduces a definition squarely based on the convention, is intended to address that difficulty and introduce an objective test. I beg to move.

[Lord Faulks]

My Lords, Clause 76 allows for judicial review claims on issues which relate entirely or partly to the environment to be excluded from the revised costs capping regime established by Clauses 74 and 75. This is to ensure continuing compliance with our obligations under the Aarhus convention and the various European directives which implement it. The requirements include that relevant procedures must not be prohibitively expensive. This is relevant to judicial reviews in certain environmental cases. Consequently, Clause 76 allows for environmental judicial reviews to be excluded from the approach in Clauses 74 and 75.

--- Later in debate ---

The intention behind Clause 76 and the regulations that will be made under it is to exclude relevant environmental cases from the codified regime created by Clauses 74 and 75 and to allow these cases to continue to be dealt with under the separate regime in the Civil Procedure Rules, ensuring compliance with the relevant international obligations. The new clauses would upset the careful balance between ensuring the proper measure of access to justice in environmental cases and ensuring that judicial review is not misused. On that basis, having listened carefully to the arguments advanced by the noble and learned Lord—I am sorry, my noble friend Lord Marks—I ask him to withdraw the amendment and agree to Clause 76 standing part of the Bill.

[Lord Marks of Henley-on-Thames]

My Lords, I am rather surprised that my noble friend regards my performance on this Bill as meriting promotion to “noble and learned Lord”.

We have both been brief. I rehearsed the arguments for the amendments in Committee and my noble friend rehearsed the arguments against. I will seek leave to withdraw the amendment but I say only this: I have a prediction that if these provisions are enacted in their present form, it will not be very long before the Compliance Committee established under the Aarhus convention draws attention to non-compliance by this country with its international obligations under Aarhus, not only in respect of Clauses 74 and 75 but in respect of Clauses 71 to 73 as well. I would regard that as a great pity because international obligations are a matter of great importance. With that observation, I beg leave to withdraw the amendment.

Amendment 174A withdrawn.