Criminal Defence Service (Very High Cost Cases) (Funding) Order 2013

Lord Mayhew of Twysden Excerpts

Wednesday 11th December 2013 Lords Chamber

I ask the Minister to consult the Secretary of State for Justice and Lord Chancellor and to think very carefully about whether the effect of these changes—short, medium and long-term—is really worth the apparent saving.

[Lord Mayhew of Twysden (Con)]

My Lords, I acknowledge that I have something to declare, which is that many years ago I used to conduct criminal cases as a member of the Bar. I recognise very well what the noble and learned Lord, Lord Woolf, was saying about the fee of two pounds four shillings and sixpence. The difference between the scenario that he described and my own was that he described people of the highest eminence accepting two pounds four shillings and sixpence as it was their duty. I was at the bottom of the heap—the opposite—and was very glad indeed to have it.

The debate so far has been of the highest quality and I shall be very brief as I do not wish to diminish the impact that it undoubtedly had on my noble friend who is about to reply. The trick that the Government have to fulfil is that they have to make provision to reduce the deficit, and must do so in a way that avoids unintended consequences. I believe that it is a tragic fact that the reduction of 30% that has been described this evening will have an unintended consequence. Fewer people will take the work and the consequence will play over to the task of reducing the deficit. It will increase the deficit for the reasons that high judicial authority has emphasised again tonight.

I want to add one additional circumstance that I can foresee. If you are doing a very long case which, as my noble friend Lord Carlile described, is one of high complexity, you become associated in the minds of instructing solicitors with that case—“Oh Mr Mayhew will not be available; he is tied up in this case which has gone on for months and with many more to come”. When you finish that case, you will find typically that there is no work left and you will have a long gap in your practice before you are instructed again. That will bear on the decision of the advocate as to whether to accept the fee that is offered. That point has not been made tonight, but it is one that is similar in character and perhaps easily overlooked.

The Secondary Legislation Scrutiny Committee, in its 18th report, has drawn attention to what has been said about these measures by three professional bodies. It has called for a more robust defence, and I look forward very much to hearing from my noble friend that the Government believe they have a more robust defence to the many points of criticism of profound weight that have been put before your Lordships this evening.

[Baroness Scotland of Asthal (Lab)]

My Lords, this has been an extraordinary but sad and rather sobering debate. I am grateful that, from the powerful opening by the noble Lord, Lord Carlile, until the noble and learned Lord, Lord Mayhew, sat down I have found no reason to disagree with one word that has been said, save that I shall make a few comments a little later to help clarify the views of these Benches for those who sit opposite. The reason I say “sad and sobering” is that we should be very clear that this is not a parti pris debate.

So far we have had the benefit of hearing from two former Lords of Appeal in Ordinary, one former Lord Chief Justice, the current regulator and now a very eminent member of the Bar and recorder. I declare my own interest as not only a member of the Bar, a recorder and deputy High Court judge, but someone who is in practice and who, although I have not taken legal aid criminal cases since leaving Government, certainly did in the past. The voices I have just spoken about are joined now by two former Attorneys-General of different complexions politically and, some would say, physically. This is something upon which those who are committed to justice and the rule of law and concerned about the quality of justice in our country have now spoken, and so far we have spoken with one voice.

It is very important to hear the echo of what has been said, because it is an echo of real alarm and concern. I was struck by the comments of the noble Baroness, Lady Deech, about the effect of retrospection, an issue I had intended to alight upon. I was struck by the description of the noble and learned Lord, Lord Woolf, when he talked about these provisions as “a gangrenous wound”. It is a description with which, regrettably, I wholeheartedly agree.

I was also grateful that mention was made of the Lord Chancellor’s responsibility in terms of his oath. Members of this House will be familiar with it, but I shall repeat it so that the House and others may be reminded of what the oath of the Lord High Chancellor of Great Britain is. The oath that the current Lord Chancellor swore was this:

“I … do swear that in the office of Lord High Chancellor of Great Britain I will respect the rule of law, defend the independence of the judiciary and discharge my duty to ensure the provision of resources for the efficient and effective support of the courts for which I am responsible. So help me God”.

How does the Minister contend, on behalf of the Government, that that oath by the Lord High Chancellor of Great Britain is being discharged?

Let me help the House as to why I am concerned about whether the Lord Chancellor has taken that oath into account in bringing these orders forward. I know that when he gave evidence to the Select Committee he seemed to suggest that it was not possible to grant access to justice to all people at all times. That, if I may respectfully say so, is a fundamental misunderstanding of the Lord Chancellor’s role. It is his duty to ensure that there are sufficient resources so that access to justice for all people at all times can be equally made available. Moreover, the wounds that the changes proposed in these orders will inflict may so damage the availability of good access to justice that the cost will be very difficult to bear. There are those who say that they know the cost of everything and the value of nothing. Let us be clear: the value of our justice system is very high indeed.

Crime and Courts Bill [HL]

Lord Mayhew of Twysden Excerpts

Tuesday 4th December 2012 Lords Chamber

[Lord Pannick]

My Lords, again, this amendment is tabled in the names of the noble and learned Lord, Lord Phillips of Worth Matravers, and myself. It raises two issues of fundamental importance concerning the independent status of the Supreme Court—that is, its independence from the Executive. The first issue is that it would make the president of the Supreme Court and not the Lord Chancellor responsible for appointing the chief executive of the Supreme Court. The current position is that Section 48(2) of the Constitutional Reform Act 2005 provides that:

“The Lord Chancellor must appoint the chief executive, after consulting the President of the Court”.

The process for the appointment of the first and current chief executive, Jenny Rowe, involved an ad-hoc commission chaired by a Civil Service commissioner and which included three of the then Law Lords along with a retired senior civil servant as the external member. The Ministry of Justice provided the commission with secretarial support and a firm of head-hunters was used to identify potential candidates. The amendment does not envisage any change in the substance of that process. It worked well and produced an appointee who is widely recognised as deserving much of the credit for the successful birth and early years of our Supreme Court. However, in principle this is an appointment which should be made by the president of the Supreme Court and not by the Lord Chancellor.

The power to appoint all the other officers and staff of the Supreme Court is already invested in the president of the court by Section 49(1) of the 2005 Act, even if, in practice, he delegates the exercise of this power to the chief executive. Section 48(4) of the 2005 Act says that the chief executive has to act under the direction of the president, so it is an anomaly that the power to appoint the chief executive is not also a matter for the president.

There is also an important question of principle: of course, the Supreme Court acts independently of the Executive, but it must also be seen to do so. Indeed, that was the major reason why the Supreme Court was created by the 2005 Act and why the Law Lords left this place. For the president of the Supreme Court to have the responsibility for appointing the chief executive would emphasise to all concerned that this is an independent institution.

The noble and learned Lord, Lord Phillips, has asked me to tell your Lordships that in his experience of the first three years of operation of the Supreme Court, the existing appointment provision led more than once to confusion in parts of the government machine that the chief executive should in some sense be acting at the behest of Ministers. The amendment is designed to put it beyond doubt that this is not the case. If the appointment power were to be vested in the president, there then arises the question why the Lord Chancellor should be consulted at all on this matter, particularly given that the chief executive is and would continue to be appointed in accordance with civil service recruitment rules, and the process is and would continue to be presided over by a Civil Service commissioner.

The Lord Chancellor is, of course, no longer a judge, and any role he might have in the process could only now be as a politician and government Minister.

I can tell your Lordships that the justices of the Supreme Court, including the noble and learned Lord, Lord Neuberger, the new president, simply do not understand how it can be constitutionally appropriate for the Lord Chancellor to exercise any such role. So the amendment would therefore confer responsibility on the president of the Supreme Court for appointment of the chief executive of that court, and would remove the role of the Lord Chancellor.

A second issue is raised by this amendment, arising from the terms of Section 49(2) of the Constitutional Reform Act 2005, which provides that the chief executive of the Supreme Court requires the consent of the Lord Chancellor when she decides on the number of officers and staff of the court, and the terms on which officers and staff are to be appointed. The noble and learned lord, Lord Phillips, has said publicly that he considers it critical to the court’s independence, and the perception of its independence, that the chief executive owes her primary loyalty to the president of the court and not to a Minister. The justices of the Supreme Court believe it would be preferable for the statutory provisions to be changed to make it even clearer that the chief executive has a direct accountability to Parliament for the proper use of the court’s resources and that she acts entirely independently from ministerial direction.

This is not just a matter of principle, important though the principle of independence is. The practical reality is that it makes no sense whatever for the chief executive to have to agree with the Lord Chancellor, which means of course his officials, on the number of officers and staff of the court. The justices of the Supreme Court are clear that neither the Lord Chancellor nor his officials can be in any position to second guess decisions that the chief executive makes in consultation with, and, if necessary—although the noble and learned Lord, Lord Phillips, assures me that it never came to that during his time—at the direction of the president, about the staffing requirements of the court.

In any event, the chief executive already has two separate disciplines upon her in making those staffing decisions—the budget that Parliament has decided to make available to the court, and the requirement on her as chief executive under Section 51(1) of the Act that the chief executive must ensure that the court’s resources,

“are used to provide an efficient and effective system to support the Court in carrying on its business”.

The amendment would therefore remove the need for the chief executive to seek the agreement of the Lord Chancellor to these matters, to make even clearer her direct accountability to the president on the one hand and to Parliament, if needs be via the Public Accounts Committee, on the other. I can tell your Lordships that the current president of the Supreme Court, the noble and learned lord, Lord Neuberger, supports this amendment on both of the matters that it covers: removal of the role of the Lord Chancellor in the appointment of the chief executive and in relation to staffing issues at the Supreme Court.

I understand that discussions are continuing on these important issues. I hope that the Minister will agree to consider these important issues further between now and Third Reading so that we can, if necessary, return to the matter then. I beg to move.

[Lord Mayhew of Twysden]

It seems almost trite to make the point that wherever you have a chain of command within an organisation, that chain of command should be clear and not muddled or uncertain. If you find that those defects are present, you are bound to get trouble sooner or later—and it will probably be sooner. In the case of the United Kingdom Supreme Court, it seems to me to be very important that there should be no such blemish in its constitutional arrangements, for the very reason that has been explained so powerfully to us this evening, and which the noble and learned Lord, Lord Phillips—with the support of all his brethren—would have been adopting, we understand, were he present. The whole point of the setting up of the Supreme Court is that it should be operationally squeaky clean of any contamination by the Executive. That was the point of moving it away from the Judicial Committee of your Lordships’ House, something that many of us regretted. If that is to be the case, however, then it is particularly important that there should be no capability of misunderstanding and resulting conflict—let alone litigation—arising out of an assertion that there is a dual chain of command here.

Justice: Reform of Punishment, Rehabilitation, Sentencing and Legal Aid

Lord Mayhew of Twysden Excerpts

Tuesday 21st June 2011 Lords Chamber

[Lord Mayhew of Twysden]

My Lords, the Statement refers with approval to some judicial consultation that has already taken place. Can my noble friend tell us whether judicial consultation has yet extended to the plan for a mandatory sentence for knife crime? If so, can he tell us the character of the judicial response?

[Lord McNally]

I know that my right honourable friend the Lord Chancellor has very regular meetings with the Lord Chief Justice and other senior members of the judiciary. However, those meetings are private and he certainly has not made me aware of whether he has discussed any aspect of these proposals with the Lord Chief Justice or the judiciary. If he has, I shall respond in writing to my noble and learned friend. I am not aware of a formal consultation but, if one has taken place, I shall make him aware of it.

European Convention on Human Rights

Lord Mayhew of Twysden Excerpts

Thursday 19th May 2011 Lords Chamber

[Lord Mayhew of Twysden]

My Lords, I shall look forward to that intervention.

I begin by expressing my gratitude to the noble and learned Lord for giving us the opportunity to debate this topical and extremely important subject. Unfashionable though it may be, I remain glad that our country has ratified the European Convention for the Protection of Human Rights and Fundamental Freedoms. It is not often recalled—I was very glad to hear the noble and learned Lord do so a few moments ago—that we did so by one of the first acts of Sir Winston Churchill’s second Administration. We were the first of the member states of the Council of Europe to do so.

Like many of your Lordships, I am old enough to recall, and to have shared in, the surge of international idealism that flowed from the full realisation of the horrors that had been experienced in the recently concluded world war, and which had been inflicted on human beings before and during it. Those horrors had been inflicted by tyrants upon victims in a Europe that had lacked the political will to formulate, let alone enforce, any statement of their basic rights as human individuals. On all sides the determination was “never again”. So uncontroversial was the new convention, that to the best of my knowledge its ratification was never debated in Parliament. Though we became one of 12, our particular participation as a country was, I believe, to offer oppressed people elsewhere in Europe and beyond a beacon of hope and faith. From it they took heart and strength.

More controversially, however, I am also glad, though more critically, that 60 years later we remain bound by the convention, and that the coalition Government have declared that we shall continue to be so bound. That is not to say that there is not an urgent need for reform. In 60 years there have evolved, in large part with the consent of the member states, very significant changes to structures and jurisdiction. Whereas initially there was no court but only a Commission and a Council of Ministers, now the Strasbourg Court is at the heart of the convention, and, it must be said, at the centre of its problems. There is, for example, the horrifying and absurd backlog of applications to the court. Perhaps predominantly, there is the popular conception, which some of the court’s decisions have allowed to develop, that its decisions are typically out of touch with reality and with what is sensible. It is very damaging, surely, that this development should have led an authority of the stature of the noble and learned Lord, Lord Hoffmann, the former Law Lord, to be reported as saying that

“human rights have become, like health and safety, a byword for foolish decisions by courts and administrators”.

He has written that,

“the Strasbourg court has taken upon itself an extraordinary power to micromanage the legal systems of the member states of the Council of Europe”.

The Justice Minister, on behalf of the Government, has endorsed—though more gently—the thrust of that criticism. I think that there is much of which complaint in a similar vein can be made in the development by the court of its own jurisprudence. But it has been unfair in the main. Here I very gladly follow what the noble and learned Lord has just said. It has been unfair to attach that criticism to our own judges, who are obliged under the Human Rights Act 1998 to “keep pace with” the jurisprudence of Strasbourg.

It is not therefore wholly apt—to put it mildly—merely to assert that human rights should be determined by Parliament, not by judges. Whatever the words employed by Parliament, it will always fall to the judges to interpret and apply them to each individual case that comes before them.

Nevertheless, something must be done, and it is easy to understand how impatience can give rise to the answer, “Have done with the convention and all its works. Renounce it and make a fresh start”.

I believe that such a course would be an act of almost wanton destruction. Just as the convention itself derived from international determination to remedy for individuals the absence of legal protection against tyrannical abuse, so its renunciation by this country, of all countries, would tragically undermine the valiant efforts of protestors everywhere to secure basic rights and freedoms for themselves. That would be hard to forgive.

The wiser course, surely, is that now adopted by the coalition Government: the appointment of the commission in March to investigate the creation of a UK Bill of Rights that incorporates and builds on our obligations under the ECHR, ensures that those rights continue to be enshrined in UK domestic law and protects and extends our liberties.

It has been our destiny to be, for oppressed millions, a beacon of hope and faith. We can and must remain true to that destiny.

[Baroness Northover]

I would remind noble Lords—and my noble and learned friend was admirably within time—that this is a time-limited debate. When the clock hits seven, noble Lords have completed their seven minutes. We also have a noble Lord who wishes to speak in the gap.

Rehabilitation and Sentencing

Lord Mayhew of Twysden Excerpts

Tuesday 7th December 2010 Lords Chamber

[Lord McNally]

I am sorry there was that sting in the tail from the noble Lord. I have to remind him that what he termed a classic Conservative approach to penal policy over the past 20 years was being carried out for at least 13 of them by the party opposite. I notice the noble Lord, Lord Reid, nodding vigorously. Yes, it is a change of approach; it is an attempt to see if some new measures, new thinking, and new ideas can come.

On the noble Lord’s point about IPP, he has put his finger on exactly why we want to consider the measures. As he said, when it was introduced it was going to apply to a very limited number of prisoners. His figures are quite right because we now have more than 6,000 prisoners on IPP sentences, 40 per cent of whom are now well beyond their tariffs. We are in consultation with the Parole Board and others about how to deal with this. But we are where we are, and what we obviously cannot do is simply release people who may still be a threat to the public. This has to be handled carefully—with full consultation but with a determination that we do not find ourselves with 10,000 people in this situation in five years’ time. We are going to address the problem we have inherited and change the guidance for future sentencing.

[Lord Mayhew of Twysden]

My Lords—

[The Lord Bishop of Lichfield]

My Lords—

--- Later in debate ---

[Lord McNally]

I pay tribute to the chaplaincy service of all faiths in our prisons as well as to those who take on volunteering and mentoring work. It is often the faith-based organisations that help so much in our prisons.

On the challenge of resettlement, resources are in short supply. The payment by results initiative may be one way of providing them. I reaffirm what the right reverend Prelate said. In the six months that I have been in this job, I have been impressed by the fact that where there are interventions the reoffending rate falls. So there is an immediate come-back and pay-back if we can get such schemes working.

[Lord Mayhew of Twysden]

My Lords, I apologise to the right reverend Prelate and to the House for being a little previous. Does not equipping prisoners to live a useful life when they are released remain the overriding objective at the head and forefront of the prison rules? If it be the case that today nearly 50 per cent of people who are in prison reoffend within one year of their being released, is it not disappointing to hear asserted—as it was by the noble Lord, Lord Bach—that this review is only about saving money?

[Lord McNally]

Once we move from the parliamentary knockabout stage to a proper examination of this issue, we will try to identify schemes that have the real impact to which my noble and learned friend has just referred. As I said at the beginning, illiteracy, homelessness and lack of a job are common factors. Another common factor, which fills me with shame, is that 24 per cent, I think, of offenders have been in our care at some stage or another. If we can address that basic lack of skills, we can also tackle the reoffending rate.