Legal Systems: Rule of Law
Lord Marks of Henley-on-Thames Excerpts(10 years, 2 months ago)
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Lord Marks of Henley-on-Thames (LD)
My Lords, I, too, refer to my interests in the register and echo other noble Lords in congratulating the noble and learned Lord, Lord Woolf, on securing this debate and on the eloquent and erudite way in which he opened it. We all know how much the continued high standing of the British legal system owes to his personal contribution.
I will not concentrate on our pre-eminence in the field of commercial law—the noble Lord, Lord Pannick, and others have made that case well. I will add only a mention of arbitration and ADR. The development of a body of arbitration law by which parties are left free to choose their arbitrator, venue and procedure, underpinned by a strong enforcement regime, has been important for our international standing. So, too, has our reputation for ADR and the willingness of our courts and the professions to encourage and facilitate mediation.
The Motion speaks of the rule of law. To me, the cardinal principle is that the law, not the state, is supreme. As Dr Thomas Fuller expressed it in 1733:
“Be you never so high, the law is above you”.
Fuller was famously quoted by Lord Denning in the Gouriet case in 1977, again by Lord Bingham of Cornhill in his seminal book on the rule of law, and just now by the noble and learned Lord, Lord Brown of Eaton-under-Heywood.
We in this country are confident of the independence and incorruptibility of our judges, which are guarantees of impartiality—we are fortunate in that—but certainty and consistency are also important for our reputation, and the doctrine of precedent has helped greatly with them. Transparency is also increasingly important, with electronic communications now disseminating information instantly and universally. I suggest that there is room for more televising of cases, particularly judgments and reasons for sentence. Of course, there must be restrictions, particularly on witness evidence, but more recording would enhance public understanding of judges’ decisions at home and internationally, unfiltered by an often populist and partial press.
Several noble Lords have mentioned the European Convention on Human Rights, the great work of, largely, British Conservative jurists, the vision of Winston Churchill, which substantially underpins our system and enhances its credibility. It allows the scrutiny of the exercise of state power by reference to a guarantee of fundamental human rights and freedoms justiciable in our courts under the Human Rights Act.
What do I see as the threats? I shall highlight just four. First, the political threat to the Human Rights Act is serious. Sadly, it comes largely from politicians, who are frequently complicit in falsely portraying it as a creature of the European Union and treating it, perversely, as a charter for the unworthy and a threat to law-abiding citizens. There is a crying need for a wider understanding of the reality—and, as several noble Lords pointed out, for respect for the judgments of the European Court of Human Rights.
Secondly, the contraction of legal aid as a result of austerity has risked access to justice, and so our international reputation for fairness. I hope that, where alternative funding methods cannot be found to fund legal advice and representation, in due course the Lord Chancellor’s powers will be exercised, as funds allow, to bring some of the excluded areas back into scope.
Thirdly, the threat to judicial review, mentioned by others, which we will debate later this month, threatens our reputation for the rule of law. The measures proposed would unfairly and unjustly choke off private funding to support challenges to the Executive, stifle interventions by public-spirited bodies and prevent judges from protecting litigants of limited means who challenge government action.
Finally, we have made far too little progress on judicial diversity. In the four years since the excellent report of the noble Baroness, Lady Neuberger, we at least passed the judicial diversity provisions in the Crime and Courts Act. However, last year, we missed a golden opportunity to appoint our first woman Lord Chief Justice. Since April last year, there have been three appointments to the Supreme Court Bench with not a hint of diversity among them.
The issue is important. Whatever we think of Oscar Pistorius and his trial, the international reputation of South Africa’s legal system has been immeasurably enhanced by our witnessing, day after day, the quiet, careful and considerate handling of his trial by Judge Masipa in a case mentioned by the noble and learned Lord, Lord Judge.
To achieve judicial diversity, we must achieve more diversity in the professions. However, the reduction in legal aid and the uneconomic remuneration rates for criminal work reduce the number of lawyers undertaking publicly funded work. When I asked my noble friend about that on Monday, he said that,
“there is less for lawyers to do and inevitably there will be fewer lawyers to do it”.—[Official Report, 7/7/14; col. 10.]
That may be technically accurate, but, equally inevitably, the reduction is in those doing publicly funded work. The reduction in the standard of lawyer undertaking such work has been mentioned, and is important. Wishing no disrespect to either my noble friend or me, the more that the professions sound like him and me and look like him and me, the less we are likely to present to the world a judiciary that is genuinely representative of modern Britain.
We are rightly proud of our legal system but we cannot stand still, and I fear that we may not be keeping up in important areas.
Legal Aid: Social Welfare Law
Lord Marks of Henley-on-Thames Excerpts(10 years, 2 months ago)
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Lord Marks of Henley-on-Thames (LD)
My Lords, I refer the House to my registered interest as a practising barrister. My noble friend’s department has in the past largely dismissed fears for the future availability of publicly-funded barristers, given the cuts in the scope of legal aid and in remuneration rates. Does my noble friend share my concern at the 38% drop in available tenancies in chambers over the year to 2011-12 and the long-term decline in the availability of pupilages, particularly in chambers doing legally-aided work? How can we reverse this trend?
Lord Faulks
My Lords, that is a little way from social welfare law. Of course we need lawyers to represent those in every section of society in all sorts of fields. The fact remains that there is less for lawyers to do and inevitably there will be fewer lawyers to do it. It is important that the profession maintains high standards but I do not think that I can comment on numbers in particular chambers.
Criminal Justice and Courts Bill
Lord Marks of Henley-on-Thames Excerpts(10 years, 3 months ago)
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Lord Marks of Henley-on-Thames (LD)
My Lords, we come to the Bill at a time when crime is falling. In 2013, according to the Crime Survey for England and Wales, there was a 15% fall in crime overall to its lowest level in more than 30 years. The fall in violent crime has been particularly marked. It has fallen for each of the past five years, which is profoundly welcome. What is more, with the rehabilitation revolution and the measures we took last year in the Offender Rehabilitation Act, I believe we have started to tackle the scourge of persistent reoffending that has blighted the lives of so many of our young people. On these Benches we are particularly proud of the contribution in this area made by my noble friend Lord McNally, who I am delighted to see in his place today. I know the whole House welcomes his inspired appointment as chairman of the Youth Justice Board. In the criminal justice field, the Bill should be judged by its contribution to cutting crime in general further, and in particular to helping young offenders avoid reoffending.
The Bill creates new offences, which we welcome. The most significant proposals are those to make ill treatment or wilful neglect by care workers a specific offence and to create another offence for care providers of gross neglect of their duty of care. Those in their charge have a right to expect to be looked after professionally, carefully and compassionately. We have all been appalled by the many recent accounts of lack of care in care homes and hospitals. Mid Staffordshire, which was mentioned by my noble friend, Winterbourne View in Gloucestershire, and the care homes in Essex and Croydon recently exposed by “Panorama” are but other examples of what has too often become regular cruelty by carers, often attributable to systemic failures in the organisations that employ them. My right honourable friend Paul Burstow in the other place has worked hard in advocating such provisions as are now proposed. His expertise on the subject and his commitment to better care are well known. These new offences will help to prevent such ill treatment and neglect, and to deal effectively with these terrible cases where they occur.
A further specific offence of police corruption may add only a little to the existing law, but it will serve to make it clear to police and public alike that police officers are entrusted with special powers, that they hold a position and role in society that makes it incumbent upon them to observe the highest standards and that, if they should fall short of those standards and act corruptly, they can expect to be dealt with severely.
We also welcome the proposal that images of rape are to be classified as pornographic. That is obviously right, and the proposed defence that acts portrayed were in fact consensual strikes a reasonable balance. We will, however, seek to add a new clause outlawing so-called “revenge porn”—that is, putting intimate pictures of former lovers on the internet without their consent. This nasty practice, if not curbed by law, threatens to become more widespread with the advent of high-definition video cameras on phones and cameras built into glasses. Such mean acts of revenge can have profound and devastating effects on their victims’ lives, causing deep distress, often psychological illness and havoc within personal, family and work relationships. In the other place, my honourable friend Julian Huppert suggested making this practice an offence, and my right honourable friend Maria Miller organised an Adjournment debate on the subject.
On the issue of rehabilitation, we will be looking carefully at the proposals for secure colleges. My party has been at the forefront of advocating a greater emphasis on education in custody for adults and young offenders alike. I welcome my noble friend’s commitment to education for people in custody. However, I wonder whether the establishment of secure colleges may not risk large numbers of young offenders being sent to a small number of large institutions, often far away from their homes, instead of to smaller ones with more personalised care and more links with their homes and families. I invite my noble friend to consider, with other Ministers in the department, how we can ensure that sentences served in secure colleges will not jeopardise the greater opportunity for through-the-gate support, which we have been at such pains to provide and encourage for offenders close to their communities before, as well as after, release.
For my part, I am also unclear how meaningful courses are to be organised in secure colleges. Offenders are, after all, sentenced all year round, not just at the beginning of college terms. Their sentences also vary in length. I am concerned that college-style courses may simply not work for many offenders. We look forward to the consultation promised by my noble friend on the secure college rules. My noble friend Lady Linklater will deal further with this topic in due course.
If we have a general criticism of the Bill, it is that too many proposals in it would remove or limit judicial discretion. It seems to be infused with a lack of trust in our judges. I regard some of the proposals as presenting a real danger of injustice in cases which should be dealt with on an individual basis, not by the application of a blanket rule regardless of the particular circumstances.
The proposal in the Bill that I fear most risks injustice is that for a mandatory sentence of six months’ imprisonment for adult offenders, and four months for 16 and 17 year-olds, for a second offence of possessing a knife in a public place. This was proposed as an amendment in the House of Commons from the Conservative Benches by my honourable friend Nick de Bois. Regrettably, Labour MPs lined up alongside the Conservative Back-Bench Members to support it. Liberal Democrats in the Lower House opposed the amendment and we will do so again in your Lordships’ House.
Of course knife crime is extremely serious and we must come down very hard on it. In many cases where an offender repeats an offence of possessing a knife in a public place, he or she will richly deserve a custodial sentence, but that should be for judges to decide on a case-by-case basis. Compulsory custodial sentences are the wrong way to deal with the issue. They stop judges deciding who deserves prison and whether prison will do any good in a particular case. They threaten to affect young black people disproportionately because more of them are subject to stop and search. There is no proof that compulsory prison works. As my honourable friend Julian Huppert said in the Commons:
“The question … is whether we should do the thing that sounds the toughest or the things that actually work”. [Official Report, Commons, 17/6/14; col. 1034.]
We have put all our emphasis in this Parliament on keeping young offenders out of prison where we can and rehabilitating them to lead useful lives in the community. Compulsory sentences are costly and overcrowd our prisons. This is a retrograde step for rehabilitation.
It is true that the Bill would permit a court to refrain from passing the mandatory sentence if,
“the court is of the opinion that there are particular circumstances which … relate to the offence or to the offender, and … would make it unjust to do so in all the circumstances”.
But that only serves to make my point: if a particular circumstances exception is to be widely applied, it makes a nonsense of the provision for mandatory sentences; if only rarely applied, serious injustice is caused in a number of cases. We are not persuaded that there is any justification for this approach beyond, I regret to say, a desire to appeal to a populist press with an eye-catching message that we are tough on knife crime.
We are also concerned about the compulsory imposition of a criminal courts charge upon conviction, even for offenders who cannot afford it and for whom employment prospects may be affected by the existence of an outstanding charge because they cannot get credit and they are concerned by the effect on their earnings. I am concerned about the proposal that a court must dismiss the whole of a personal injury claim if it is tainted by fundamental dishonesty. As someone who has conducted many personal injury cases over the years for both claimants and defendants, my experience is that dishonesty in the presentation of personal injury claims is, regrettably, not uncommon. Defendants can often produce convincing evidence, with the aid of video surveillance or otherwise, to demonstrate that the degree of injury allegedly sustained by claimants, and the consequences of such injury, have been wildly exaggerated.
For my part, I have always believed that in appropriate circumstances, judges should have the power to throw out an entire case for extreme dishonesty or to reduce awards of damages to reflect the court’s view of such dishonesty. However, there are many cases which are affected by what might reasonably be described as fundamental dishonesty where the needs of the claimant for the rest of his or her life must come first and in fairness must be met, and where completely depriving the claimant of damages would be very wrong. But instead of giving a judge a discretionary power to reject an entire claim or reduce damages to an appropriate extent, this clause would provide that the court must dismiss the claim unless satisfied that the claimant would otherwise suffer substantial injustice. Once again, I sense a lack of trust in judges to act sensibly in the exercise of their discretion in accordance with the justice and requirements of the particular case that they are hearing.
I turn finally to the proposals for judicial review. Judicial review is the precious right of the citizen to challenge the Executive in the courts when a Government act unlawfully or exceed their powers. The law has been developed, as my noble friend said, over recent decades into what I suggest this House knows is an effective and elegant body of law. One understands that Governments do not relish being challenged in the courts: it is inconvenient. But it is the constitutional duty of this House to protect the right of challenge and to trust our judges to deal with challenges fairly and in accordance with the law.
The measures proposed in the Bill for judicial review risk deterring people with means from supporting legal challenges by making them disclose all their assets and threatening them with widespread orders to pay the Government’s costs personally. The proposals would prevent campaigning organisations and others joining in on cases as interveners to put the public’s case by making interveners pay all parties’ costs of their intervention and by preventing them getting their costs even when they win—and ex hypothesi therefore, even when they have shown that the Government were in the wrong. Campaigning organisations would find it harder to raise money to challenge the Government in the public interest. I welcome the indication from my noble friend today that the Government are open to persuasion on these provisions, but that persuasion needs to go a long way to produce a lot of movement.
Further provisions would allow the courts to protect litigants from costs orders—the so-called costs-capping orders—against them only in cases of general public importance. But what of the innocent member of the public who has been wronged in a particular but unusual case of government irrationality—nothing of general public importance but a serious case of injustice? Why should that citizen not have costs protection if the judge thinks it right that he should? In all these cases, as the noble Lord, Lord Beecham, pointed out, judges have at the moment appropriate powers in relation to costs and judges decide how they should best be exercised.
We will also wish to consider how far the proposed permissive power to make regulations to exempt environmental judicial review cases from the restriction on cost capping complies with our duty under the Aarhus convention to provide access to justice in environmental cases that is
“fair, equitable … and not prohibitively expensive”.
That will be difficult when the Aarhus Convention Compliance Committee has found that under our existing rules, the United Kingdom already fails that test.
There is no evidence that our judges let frivolous challenges or challenges that are of academic interest only because they make no difference, consume public resources unnecessarily. There is no established need for the cost deterrents in Part 4, and a justified fear that they will stifle legitimate cases. We will scrutinise Part 4 very carefully and resist unwarranted intrusions by legislation into areas that are best left to judicial discretion, particularly where what is at stake is the citizen’s right to hold the Executive to account in our courts.
Digital Bill of Rights
Lord Marks of Henley-on-Thames Excerpts(10 years, 3 months ago)
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Baroness O'Neill of Bengarve
My Lords, I was referring to the draft data protection regulation—which is not a directive—not to the right to be forgotten.
Lord Marks of Henley-on-Thames (LD)
My Lords, the noble Lord, Lord Mitchell, rightly raised this privacy issue in the Queen’s Speech debate. Most of us are, I suspect, blissfully unaware that the so-called location services on our mobiles act as an insidious spy in the pocket, constantly recording our every movement wherever we go. Should we not at least start by obliging smartphone and network providers to tell us clearly what personal information they collect and how, and how we, as consumers, can turn it off?
Lord Faulks
The noble Lord is right that this is a source of anxiety and a matter which continues to alarm all sorts of people and organisations. The consumer has a role to insist on this information being provided. That, rather than legislation, is probably the answer for the moment.
Prisons: Overcrowding
Lord Marks of Henley-on-Thames Excerpts(10 years, 3 months ago)
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Lord Marks of Henley-on-Thames (LD)
My Lords, whether or not the present shortage is under control, as the Statement asserts, can the Minister assure those of us on these Benches that the Statement should not be taken as suggesting that the more prison places there are the better? Will he confirm that the Government’s aim remains to achieve a reduction in the prison population by reducing reoffending and keeping offenders out of custody through rehabilitation where possible? Is that policy not achieving some success? Does he also accept that an obvious way to free up necessary space in prisons is to enable the early release of the 3,500 prisoners who have already passed their tariff date for release but are still serving indeterminate sentences for public protection, which were, after all, abolished by the Government to their credit in 2012?
Prisoners: Indeterminate Sentences
Lord Marks of Henley-on-Thames Excerpts(10 years, 6 months ago)
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Lord Marks of Henley-on-Thames (LD)
My Lords, in 2008 the previous Administration recognised the difficulties that the mandatory imposition of IPPs had caused when they made the changes to increase judicial discretion and remove short-tariff sentences for sentences passed after July 2008. Yet there remain in prison many who were sentenced to IPPs before that date and whose short-tariff sentences were completed long ago, as the noble and learned Lord, Lord Lloyd, has just pointed out. He gave us the numbers and they are truly shocking. I pay tribute to the noble and learned Lord for his sustained and impressive campaigning on this issue over a long time.
In 2010, through the then Prisons Minister, my honourable friend Crispin Blunt, the Government publicly recognised that the present position was indefensible because it was clear that many IPP prisoners were being held well beyond their tariff dates for no better reason than that the Prison Service was unable to provide the courses necessary for them to satisfy the Parole Board of their suitability for release. Then, in 2012 this Government, to their credit, recognised the injustice of IPP sentences when they abolished them in the LASPO Act. Also in 2012, as has been pointed out by the noble and learned Lord, Lord Phillips, the European Court of Human Rights recognised the injustice when it decided the case of James, Wells and Lee v the United Kingdom, broadly on the ground that, given the lack of the rehabilitation courses necessary to establish suitability for release, the continued detention of the applicants in that case amounted to the arbitrary deprivation of their liberty, contrary to Article 5.1.
Neither the changes introduced by the Criminal Justice and Immigration Act 2008 nor the abolition of IPP sentences by the LASPO Act had any retrospective effect. The result is that we are now left, as the noble Lord, Lord Wigley, pointed out in his extremely helpful and informative introduction to this debate, with an impossible and indefensible injustice.
The current position is that on the one hand there are in prison many who are serving indeterminate terms well after their tariff sentences have been fully served, often with short-tariff sentences imposed before the two-year restriction was introduced. Many of those prisoners see, and have, no hope of early release because the necessary resources to secure their release are still not being provided in sufficient quantity or at sufficient speed. The system is still overwhelmed by its inability to cope with the stresses placed upon it. On the other hand, many of those sentenced to similar tariff terms more recently—after abolition—who would have received an IPP sentence before abolition have now been, and are being, released after serving their determinate sentences in full, well before those who are still held on IPPs, having been sentenced earlier.
What should the Government do? As the noble and learned Lord, Lord Lloyd, pointed out, the LASPO Act, by Section 128, specifically gives the Secretary of State wide powers to deal with the injustice of existing IPPs. The first power is to provide by order that, following a referral, the Parole Board must direct release if certain conditions are met; the second is the converse—that he may provide that the Parole Board must direct release unless certain conditions are met. The careful use of either power would enable the Secretary of State to put an end to the injustice highlighted in this debate that now disgraces our criminal justice system, while ensuring that prisoners whose release would genuinely present a serious danger to the public are kept in prison until their release is judged safe. Yet, despite the power contained in and legislated for in Section 128, the Government have so far resisted retrospectively altering sentences on the basis that those were sentences passed by judges acting in accordance with the law as it was at the date of sentencing.
Your Lordships’ House is very familiar with the arguments against retrospective legislation but, as my noble friend Lord Dholakia pointed out, they are generally deployed to avoid doing injustice to persons who were unaffected by restrictions before the passage of legislation. I have never heard them deployed in favour of continuing an injustice to those currently affected by unfair and oppressive legislation.
There is a further answer to the argument that bringing forward release dates now would overturn decisions of judges made according to the law in force at the time of passing the sentences. Many of the IPPs imposed were imposed because the judge’s hands were tied, often by judges acting through gritted teeth in compliance with what they regarded as, and what was, a bad law. That is no ground for demanding respect for those sentences now.
Whether the best solution is to treat all existing prisoners on the basis on which they would have been treated had they been sentenced after 2012, or to give them the option to be so treated, as the noble and learned Lord, Lord Lloyd of Berwick, suggests, or whether it would be best simply to introduce a presumption in favour of release unless continuing incarceration can be clearly justified, under the second limb of Section 128, the present injustice cannot in conscience be permitted to continue. If my noble friend’s response to this debate goes no further than saying that the Government will simply try a little harder to speed up the rate of release of prisoners caught by IPPs, that will not, I suggest, be a response that goes anywhere near meeting the need for a genuine solution. Tinkering around the edges of the old system will not be a solution.
It is important to remember that there is a special feature of IPPs. They were sentences imposed not for crimes that had been committed but for fear of crimes that might be committed in the future. It is clear that your Lordships recognise, as we all must, that public protection is an important function of punishment. However, it is also important that those involved with the criminal justice system and the public at large have the confidence that our system of justice is indeed fair and just. Where that system perpetrates and then maintains an obvious injustice, long after it has become recognisable and has in fact been recognised as such, our system cannot and does not deserve to command that confidence. We who support this Government have been proud of the rehabilitation revolution that we have introduced. The continued detention on IPPs of prisoners long beyond their tariff dates is the antithesis of that rehabilitation revolution, and we should end it.
Sentencing Council: Guidelines
Lord Marks of Henley-on-Thames Excerpts(10 years, 10 months ago)
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Lord McNally
My Lords, the Sentencing Council is a product of the Coroners and Justice Act 2009. I believe that that is a very good piece of legislation, because it places an obligation on courts, when sentencing for offences, to follow the guidelines of the Sentencing Council unless,
“it would be contrary to the interests of justice to do so”.
What that does, I hope—this was the intention of the legislation—is to bring consistency into sentencing, which we hope, as I think our predecessors hoped, gives greater confidence in the criminal justice system.
Lord Marks of Henley-on-Thames (LD)
My Lords, the Sentencing Council guideline affirmed what is known as the totality principle. It generally works well in securing a uniform approach to sentencing for multiple offences that balances the need for reflecting overall criminality with the need for sentences that are just and proportionate. But does the Minister agree that, as the noble Baroness’s Question illustrates, much more needs to be done to explain this to a public who are very sceptical?
Lord McNally
Yes, I would agree. The totality principle requires that courts review the aggregate sentence against the totality of the offending behaviour and adjust it to ensure that it is a proportionate overall sentence. The noble Baroness who asked the Question made the point that the public, as they read these reports, are often dissatisfied with what they consider to be soft justice. I think that the more they understand the sentences, the more they will have confidence in them. Another reform by the previous Administration requires that judges more fully explain their judgments, and that is a welcome step in giving people greater confidence about why a particular sentence was given. I confess to a certain reluctance about televising the courts as I am worried that there could be the kind of slippery slope that we see in the American courts, but the changes that I have seen so far should give the public a better understanding of the system, and that can only be to the good.
Probation Services: Privatisation
Lord Marks of Henley-on-Thames Excerpts(10 years, 11 months ago)
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Lord McNally
I have great confidence in the human resources work that is being done to make sure that, where work is transferred across to the private and voluntary sector, existing probation officers get good opportunities for employment. My view is that many of the new entrants into this market will want to grab the experience of existing probation officers. I also hope that we can push forward with the idea of a chartered institute of probation, which again would give probation and probation officers the status that they previously lacked in our system.
Lord Marks of Henley-on-Thames (LD)
Can my noble friend say what steps the Government are taking to ensure that the new owners of the community rehabilitation companies, when they are sold by the Ministry of Justice in the second stage of this process, will represent the diverse range of providers that he described and which the Government seek, rather than just a handful of large commercial organisations?
Lord McNally
This also is work in progress and where we have learnt, including from some past mistakes. We have put aside money to allow would-be entrants, particularly in the voluntary sector, to prepare for bids. My impression is that we are tapping into a large unused resource. Let us never lose sight of what we are bringing forward. The part of the bargain that really excites me is that we are going to be able to give help, support and rehabilitation measures to those who are sentenced to less than 12 months, the very sector which includes some of the most prolific reoffenders. This is a rehabilitation revolution. Although transfer and change are always difficult, we have this on track. However, in answer to the original Question asked by the noble Lord, Lord Ramsbotham—and I know the care with which he takes an interest in this—we will be keeping these matters under constant review and, as always, I am willing to meet him on these matters.
Human Rights: Vinter and Others v United Kingdom
Lord Marks of Henley-on-Thames Excerpts(10 years, 11 months ago)
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Lord McNally
I am anxious about living in a time when both major parties advocate a more punitive approach to crime and punishment. I hope that the leaders of both parties will ponder a trend over the past 40 years in our society which looks more to punishment and less to rehabilitation. I should also mention the chutzpah of the Opposition because it was under their watch that this right was taken away in 2003. Whether that happened by mistake or by intention, I do not know, but it was under the previous Government that the provision covered by the ruling just made against us in Strasbourg was passed. We have had to pick up a lot of debris about human rights. The previous Government sat on the prisoner decision for five years and did nothing, so I will not take any kind of lectures from that side of the House.
Lord Marks of Henley-on-Thames (LD)
My Lords, does my noble friend agree that we must comply with the Vinter decision in July, given our treaty obligations and our respect for the rule of law? Will the Government now reintroduce a review procedure for whole life cases to give prisoners serving them some hope of eventual release, other than purely on compassionate grounds, if and when their imprisonment plainly no longer serves a public purpose?
Lord McNally
That is one possible outcome of the consideration now taking place. At the moment, we are reviewing the matter in the light of this judgment. I cannot take the House any further in that direction. Nevertheless, it is a very interesting and, if I may say so, a very liberal approach to the problem that we face.
Inheritance and Trustees’ Powers Bill [HL]
Lord Marks of Henley-on-Thames Excerpts(10 years, 11 months ago)
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Lord Marks of Henley-on-Thames (LD)
My Lords, I, too, welcome this Bill. As my noble friend has explained in his lucid and comprehensive introduction, it implements some of the proposals in the Law Commission’s 2011 report, Intestacy and Family Provision Claims on Death.
Particularly welcome is the improvement of the position of spouses and civil partners as compared with the position of remoter relatives. It is entirely right that where a deceased leaves a spouse or civil partner but no children, the spouse or civil partner should take the entire estate. It is also right that where there are surviving children as well as a surviving spouse or civil partner, then that survivor should take not just the statutory legacy absolutely but also his or her half of the residue absolutely. The complication and the capacity for encouraging disputes that was inherent in the existing arrangement, whereby the survivor’s half interest was held on a life interest only, should be done away with. I believe that these and other changes in the Bill chime with contemporary views of family life. They also accord more readily than do the present arrangements with the economic realities of dependency. These changes will help avoid the difficulty, the expense and the time involved in bringing claims for family provision under the 1975 Act as well.
In the case of family provision, my noble friend has stated that the Government intend to abandon the provisions presently in the Bill to reform the domicile threshold for bringing a family provision claim. Families and family wealth are increasingly international, and not only among the wealthy. I would suggest that there are cases where claims against the estate of non-domiciled deceased persons ought to be capable of being brought. It may be that habitual residence of a potential claimant is not an appropriate test for the reasons of Scots law and practice that my noble friend gave. But in this respect, as he reminded us, the provisions in the Bill differ from the Law Commission’s original proposals. The Law Commission report recommended that the existence of real property in England and Wales, or property to which domestic succession law applied, should be the alternative threshold condition apart from domicile of the deceased, whereas, as my noble friend has said, the Bill in its present form would have established habitual residence of the potential claimant as the alternative threshold condition.
I wonder whether the existence of real property here, or property to which domestic succession law applies, should, as the Law Commission proposed, even in the absence of domicile of the deceased or habitual residence of the claimant, justify a financial provision claim. I hope that the Government, rather than simply abandoning the position by amendment, will consider whether there is an alternative way of effectively widening the present threshold.
In connection with family provision claims, it is plainly right that we should add as an eligible person a child treated by a parent as a child of the family; that change is plainly welcome.
The Bill, however, implements only one part of the recommendations of the Law Commission’s 2011 report. As my noble friend also pointed out in his introduction, the other part comprised its recommendations for provision for cohabitants to take under the intestacy rules after five years’ cohabitation, or two years if the cohabitants had children living with them. Those proposals were incorporated in a separate draft Bill, the Inheritance (Cohabitants) Bill, which was annexed to the Law Commission’s report.
The Government have not sought to implement those provisions either in this Bill or in any other Bill. I differ from my noble friend and the Government in my assessment of the wisdom of this. It was left to my noble friend Lord Lester of Herne Hill to bring in a Private Member’s Bill in the terms of the Law Commission’s draft in the previous Session in an attempt to secure the implementation of these recommendations relating to cohabitation. That Bill fell for lack of time and government support after Second Reading in this House. Its provisions are now included in my Cohabitation Rights Bill, which was introduced in this House earlier this month.
The fate of those provisions is not my only concern in this area. The Law Commission in 2007 produced a lengthy and detailed report entitled, Cohabitation: The Financial Consequences of Relationship Breakdown. In that report, the commission recommended a limited scheme of financial relief to adjust economic disadvantages arising out of cohabiting relationships and to share the benefits derived from such relationships.
Again, my noble friend Lord Lester of Herne Hill introduced a Private Member’s Bill in 2008 which would have introduced reforms which were not the same as but similar to those proposed by the Law Commission. The Labour Government did not support that Private Member’s Bill, the noble and learned Baroness, Lady Scotland, then the Attorney-General, saying that the Government wished to await the outcome of research into how the Scottish legislation to similar effect, passed in 2006, was working.
In September 2011, four years after the Law Commission’s 2007 report, when I asked an Oral Question of the Government on this issue, they announced the same day by Written Ministerial Statement that there would be no action taken by the Government in this Parliament to implement the Law Commission’s proposals. Those proposals on financial relief on relationship breakdown are now the central part of my Cohabitation Rights Bill. However, in the nature of things and despite any optimism on my part, it may be some time before that passes into law.
Meanwhile, more and more cohabiting couples in England and Wales—nearly 6 million people now cohabit in the United Kingdom—go without the legal protections on breakdown or death that the Law Commission has firmly recommended that they should have. This is against the background of widespread public confusion about the position in law of people who choose to cohabit. In a British Social Attitudes survey in 2006, no less than 58% of respondents thought that cohabiting couples who split up were probably or definitely in the same position as married couples. The myth of the common law marriage is widespread, but it is just that, as your Lordships know: a myth without any foundation in law.
Reform of the law relating to cohabitation enjoys widespread judicial support. Scotland has had a cohabitation law similar to that proposed by the Law Commission since 2006. Ireland introduced similar legislation in 2010. This is what the noble and learned Baroness, Lady Hale, our one woman Supreme Court judge—and how regrettable it is that she is the only one—said last July, in a major case on the Scottish Act in the Supreme Court, Gow v Grant:
“The main lesson from this case, as also from the research so far, is that a remedy such as this is both practicable and fair. It does not impose upon unmarried couples the responsibilities of marriage but redresses the gains and losses flowing from their relationship”.
She concluded:
“‘The Act has undoubtedly achieved a lot for Scottish cohabitants and their children’. English and Welsh cohabitants and their children deserve no less”.
This is not good enough. The Law Commission’s proposals on separation were made in 2007 after a long and detailed consultation, and on intestacy in 2011. They were thorough and carefully considered. The Law Commission is the independent body set up by Parliament to recommend to the Government necessary law reforms, with a mission to keep the law fair, simple and modern. Yet in spite of repeated pleas from the professions and the judiciary at all levels to implement the commission’s proposals, no action has been taken.
I am not saying that any proposal of the Law Commission should automatically be implemented without parliamentary scrutiny—far from it. Of course it is for Parliament to determine what proposals it will implement and what it will decline to implement. However, the point of having the Law Commission is to achieve reform of the law, and that central function risks being thwarted by the failure of government at least to bring legislation before Parliament to implement the commission’s proposals. I suggest that the default position at any rate should be that the Government should bring forward legislation for consideration by Parliament when the Law Commission makes detailed proposals for law reform.
As a result of a decision taken by the conference of my party in Glasgow this autumn, the implementation of the Law Commission’s proposals on intestacy and on relationship breakdown is now Liberal Democrat policy. However, that in a sense highlights the problem. Proposals of the Law Commission for law reform should not have to be the stuff of party politics. I do not disagree with my noble friend Lord Henley that this fast-track procedure should not be available for every controversial proposal of the commission, but that does not mean that the proposal should not be brought before Parliament to be debated in the usual way. Governments of all parties should regard it as incumbent upon them to bring legislation before Parliament to implement Law Commission proposals.
Under the protocol set out in the Law Commission Act 2009, agreed between government and the commission, the Lord Chancellor is under a duty to report annually to Parliament on progress in implementing Law Commission reports. The Government must take that protocol seriously and indicate a high duty in this area. The progress on cohabitation reform suggests that such a duty has not been taken sufficiently seriously to date. The Bill is welcome but does not go far enough. One is left with an uncomfortable sense that we are implementing the easy and non-controversial proposals and ducking those that are more controversial. I adapt the words of the noble and learned Baroness, Lady Hale: the Law Commission’s proposals deserve better than that.
Lord McNally
My Lords, we have had a good debate, which I am sure bodes well for very interesting discussions in the Public Bill Committee. I again put on record my thanks to the noble and learned Lord, Lord Lloyd, for taking on the responsibility as chair of that Committee. As noble Lords will have gathered, I am also much reassured by the presence close by of Professor Cooke as I try to give answers to matters raised by noble Lords.
The first of my noble friend Lord Henley’s questions was about the situation where there is no surviving spouse or children. In such a case, the law remains the same. As to how the fixed sum was reached, that came out of a study in 2005, which made me think that it might be ripe for looking at again. On the question of whether this is a surprisingly large sum, one of the factors is housing, which makes it relatively easy for an estate to have quite large sums in it. Nevertheless, I am told that it affects at the moment only 2% of estates, partly because, as was mentioned, people who have a house and realise that its value is rising have the incentive to make a will.
The point that my noble friend raised about chattels is one that we may well explore in Committee. As I think my noble friend Lady Hamwee said, it is in respect not just of jewellery but of paintings and other things where there might be a wavy line between investments and chattels. That is certainly something to look at. For the same reason that I will refer to when I come to the interventions of my noble friend Lord Marks, I assure my noble friend Lord Henley that this procedure will be used only for non-controversial reforms. That is its strength and why Parliament has confidence in it. We should keep to that kind of discipline.
As the noble Lord, Lord Beecham, said, the noble Lord, Lord Wills, took us to interesting areas. However, the noble Lord was right to point out the danger of mischief and of the abuse of elderly and isolated individuals. Much of that is the responsibility of the Office of the Public Guardian, which also comes within my ministerial responsibilities. Allegations of theft or overcharging by any professional are serious and concerning but I do not believe that this Bill is the right place to tackle such misconduct. The Inheritance and Trustees’ Powers Bill does not directly deal with wills but instead focuses largely on situations where no will has been made. Dealing with the concerns raised by the noble Lord would not only expand the content of the Bill to deal with wills but would mean taking it into the territory of professional legal regulation, which would be a very significant step and is already dealt with under the auspices of the Solicitors Regulation Authority and the Law Society. However, the Committee will undoubtedly consider the points made by the noble Lord, Lord Wills, carefully unless the chairman rules that out. Not that I am not suggesting that will happen—we look forward to an interesting debate on any amendment tabled by the noble Lord, Lord Wills.
My noble friend Lord Marks gave us a glimpse of the detail into which Liberal Democrat conferences go in making policy. I cannot quite remember the debate myself, but I am sure there were many speeches from the floor that dealt with our policy on this. I have to say to my noble friend that he used a good deal of his speech to talk about things that we have not done and were not in the Bill. These are very relevant and may well need to be brought before Parliament, but he gave the game away at the end of his peroration when he described the issues that we have left out of the Bill: he will see when he reads Hansard that several times he used the word “controversial”. It is because they were controversial that they fell foul of the request of the noble Lord, Lord Henley, that we stay clear of that.
Lord Marks of Henley-on-Thames
My Lords, I draw my noble friend’s attention to a distinction that I hoped I had made between controversial proposals of the Law Commission, which I suggest ought to be brought before Parliament for legislation, and non-controversial proposals, such as are included in the Bill, which are suitable for this procedure. I hope I was making it clear that I do not suggest that this fast-track procedure is suitable for controversial legislation, but I do suggest that the Law Commission should not be frightened or intimidated away from introducing controversial proposals. Indeed, when considering its new, 12th—I think—programme of law reform, it has made it clear that it does not propose to steer clear of controversial proposals. I believe that that is thoroughly laudable.
Lord McNally
I could not agree more. I also say that I take very seriously my responsibility to bring the non-controversial parts of the work before the House.
Whether we should take the non-domicile question out of the Bill can be looked at in Committee. It seems to me that what we have done is no more than to recognise the realities we face in our relations with our Scottish colleagues, but I take on board the point made by my noble friend Lord Marks that in an increasingly international world some of this might have cross-border dimensions.
My noble friend Lady Hamwee made the point about housing now being a big part of any inheritance. She also raised the question of inheritance tax implications. We can look at that in Committee if necessary, but on her specific question about the commencement provision, there is no precise timing as yet, but the intention is that commencement will be all at one time.
I was extremely pleased by the contribution of the noble Lord, Lord Shaw, both for his welcome for the Bill and for the personal example that he gave, which was extremely helpful to the Committee. I shall treasure the compliment of the noble and learned Lord, Lord Lloyd; I shall tuck it away. We will have to leave it to the historians to decide whether it is Wills, Ashton, Etherton or one of the joint parentages we were talking about earlier in the debate. Nevertheless, the fact that the noble and learned Lord has been willing to take on the chairmanship has given an impetus and confidence to this procedure.
I was greatly sorry that the noble Lord, Lord Beecham, did not take this opportunity to give us a quote from Bleak House. Surely there is one somewhere here.