Media Bill

Debate between Lord McNally and Lord Pannick

Report stage & 3rd reading
Thursday 23rd May 2024 Lords Chamber

[Lord Pannick (CB)]

No—please let me answer the noble Baroness. The treatment of disabled people is a very contentious issue on which strong views are held, and I am not going to get into that debate. The noble Baroness also complains about my tone. I am sorry she complains about it. What I am seeking to do—I hope very properly, because we are all grown-ups here—is to deal with the substance of the arguments that have been put in favour of these amendments.

[Lord McNally (LD)]

I had misjudged this debate. I thought that the noble Lord, Lord Black, would be the Don Quixote—I did not imagine that he would be the Sancho Panza. Has he ever heard of the term used in the United States, “a sweetheart union”? That is what IPSO is. It is owned by, financed by and dependent on the people it is supposed to regulate. We are always looking to get IPSO out of the clutches of those it is supposed to regulate—maybe that will be the greatest tribute to the noble Lord, Lord Faulks, during his chairmanship. Then we might believe the silken words that the noble Lord, a very experienced advocate, has been saying to us.

[Lord Pannick (CB)]

The noble Lord may recall, and the noble Lord, Lord Watson, will certainly recall, that Impress, the authorised regulator, was funded for a long time by the late Mr Max Mosley, who had very strong views about press regulation.

Sanctions and Anti-Money Laundering Bill [HL]

Debate between Lord McNally and Lord Pannick

Report stage (Hansard - continued): House of Lords
Monday 15th January 2018 Lords Chamber

[Lord Pannick]

Perhaps I may add one brief point to what was said so powerfully by the noble and learned Lord, which is to remind the House of what was said by your Lordships’ Constitution Committee, of which he and I are members. The committee’s eighth report of this Session, which was on the Bill, stated in paragraph 21:

“We are deeply concerned that the power in clause 16 may be used to create an offence for which a sentence of imprisonment for up to 10 years may be imposed, and that rules on the evidence to demonstrate that the case is proved, and defences to such charges, are subject to ministerial regulation. We consider that such regulation-making powers are constitutionally unacceptable and should not remain part of the Bill”.


The Minister has dealt in Amendment 46 with the second part of that criticism, which is the quite extraordinary suggestion in the original Bill that a Minister, by regulations, should have power to alter defences to charges and to address rules on evidence, such as the burden and standard of proof. This was a quite extraordinary suggestion and I hope that the House will never again see such a provision presented in a Bill by Ministers. However, to his credit the Minister has accepted in Amendment 46 that that provision should be removed. What remains is the suggestion that Ministers should have the power to create offences for which a sentence of imprisonment of up to 10 years is imposed—and on that I entirely agree with what the noble and learned Lord said.

[Lord McNally (LD)]

My Lords, perhaps I may intervene here as a non-lawyer because I see our lawyers fluttering into their places, rather like that scene in Hitchcock’s “The Birds”. I would like to make a wider point to the House, which is one I have made over the last 20 years in Parliament. It is that one of the crucial roles of this Chamber is to defend the constitution and, above all, to defend it in terms of the relative powers of the judiciary, the Executive and the legislature.

Just over 10 years ago I was on the Cunningham committee, which looked at conventions between the two Houses. If I left a mark on that committee, it was in the clause that states and retains the right of this House to say no. It is the most important power that this House has. It is a nuclear power and something not to be used very often, but it makes the other place come into dialogue and it makes Governments think again. What worries me about the process now under way is that because of the sheer volume of Brexit legislation that will come our way, with a whole flotilla of Bills, it is quite clear that the members of whatever team is looking at this in the Cabinet Office have said, “We can only do this by using secondary legislation and Henry VIII powers on an unprecedented scale”. If they were successful in doing this we would, in my submission, tilt the balance away from the legislature to the Executive in a way that was not intended—and certainly not intended by those who argued for Brexit as a way of returning power to this Parliament.

This is one of the early tests of it. Funnily enough, the earliest test was in the little-noticed Space Industry Bill where there was a whopping great Henry VIII clause which, after the intervention of the noble and learned Lord, Lord Judge, the Government withdrew. By voting for and carrying this amendment today, right at the start of this process, we will send a message that will make the Government think again—and think more imaginatively and more constitutionally—about how they are going to deal with this legislation without adopting these practices, the dangers of which the noble and learned Lord, Lord Judge, and the noble Lord, Lord Pannick, so eloquently explained.

It is a real danger. If we are forced in Bill after Bill to carry amendments, the House of Lords will be accused of exceeding its powers. I do not think that we are exceeding our powers. We are doing what Lord Hailsham referred to almost 40 years ago: trying to avoid the dangers of a democratic dictatorship where the other place simply argues that we must obey. We must not just obey, particularly with clauses such as this which tilt the balance away from the way in which law, and in particular criminal law, is made, in a quite unacceptable way. By voting for this amendment tonight, we will send a message which will avoid a constitutional car crash further down the road.

Data Protection Bill [HL]

Debate between Lord McNally and Lord Pannick

Report: 1st sitting: House of Lords
Monday 11th December 2017 Lords Chamber

[Lord Pannick]

Does the Minister also agree that a further answer to the points made by the noble Lord, Lord Faulks, and the noble and learned Lord, Lord Mackay of Clashfern, is that it is absolutely inevitable that the detailed provisions of the Bill will be, on occasion, the subject of dispute, uncertainty and litigation, and that it would be very helpful to have a statement of principle on what is intended at the commencement of the Bill? This would not be the first time that a Bill has done that. Everybody would then know what the principles were. Of course, the Minister still needs to consider before Third Reading what that statement should be, but that is the point, as I understand it, of government Amendment 1.

[Lord McNally]

Why does the Minister feel it so necessary to push ahead with his amendment when it is quite clear that the best and most constructive way forward would be for both amendments not to be pressed to allow constructive discussion and resolution at Third Reading?

Anti-social Behaviour, Crime and Policing Bill

Debate between Lord McNally and Lord Pannick

Tuesday 12th November 2013 Lords Chamber

[Lord Pannick]

My Lords, at the end of March, the Ministry of Justice stated that the Government were considering whether to ask Parliament to abolish the defence of marital coercion. That was after the defence was unsuccessfully relied upon by Vicky Pryce at her trial in March for taking speeding points on behalf of her husband, Mr Chris Huhne. I have tabled this amendment to find out when the Government hope to come to a conclusion on this matter.

Given the time, I shall deal with it briefly. Members of the Committee will know that Section 47 of the Criminal Justice Act 1925 contains a special defence for a wife who is charged with any criminal offence other than treason or murder. It is a defence for the wife to prove that the offence was committed in the presence of and under the coercion of her husband. No such defence applies to husbands for offences committed in the presence of wives. The defence cannot be claimed by a live-in partner of either sex, by the partners to a same-sex marriage or a civil partnership, by other family members who may live in the same household, or by employees. The defence does not apply if the husband is 100 metres away when the crime is committed. Neither wives nor any other person need this defence, because of the defence of duress and the ability to mitigate by reference to relevant circumstances. The existence of this special defence has repeatedly and consistently been criticised, including by the 1922 Avory Committee and by the Law Commission in its 1977 report, which concluded that the defence was not “appropriate to modern conditions”.

I hope that by Report the Minister will be able to tell the House that the Government agree that Section 47 is unnecessary, arbitrary and should be repealed. I beg to move.

[Lord McNally]

My Lords, for the sake of brevity, I hope that on Report I will be able to do just that.

[Lord Pannick]

I am very much obliged to the Minister. I beg leave to withdraw the amendment.

Legal Aid

Debate between Lord McNally and Lord Pannick

Monday 3rd June 2013 Lords Chamber

[Lord McNally]

My Lords, when I first answered Questions on legal aid more than three years ago, the first point I made was that legal aid was a system devised to help the poorest and most vulnerable in our society. It follows that if you cut legal aid, those are the sections of society that are likely to be affected. Economic circumstances have forced cuts on my department and we are trying to make the reforms to legal aid as focused and effective as possible, while still protecting the vulnerable in our society.

[Lord Pannick]

My Lords, I declare an interest as someone regulated by the noble Baroness, Lady Deech. Does the Minister share the widespread concern that the Government’s proposal to introduce competitive tendering for criminal legal aid services will remove choice for the consumer, remove the incentive for the provider to maintain quality and inevitably result in the destruction of hundreds of small to medium-sized solicitors businesses up and down the country?

[Lord McNally]

My Lords, I am greatly reassured that somebody is regulating the noble Lord, Lord Pannick. Again, in response to this consultation, we have heard various parts of the legal profession harping on about the worst-case scenario, which we simply do not accept. We are in consultation and have put forward proposals about legal aid contracts. However, the legal professions are facing a number of changes, irrespective of what we are proposing on legal aid—a point I have made before from the Dispatch Box—and they will have to adjust to the new circumstances if they are going to survive. We are consulting with the Law Society and Bar Council, and with other bodies and individuals. We are listening and we hope to get a solution that will reflect what the Government can afford to pay on legal aid at the moment but that will also leave us with the protections for our legal aid system that many of us have taken pride in.

European Convention on Human Rights

Debate between Lord McNally and Lord Pannick

Thursday 7th March 2013 Lords Chamber

[Lord McNally]

My Lords, I speak at this Dispatch Box for the coalition Government and the coalition Government’s policy on the European Convention on Human Rights is very clear. The noble Lord asked a specific question, “Is it our policy to withdraw?”, and I gave him a specific Answer: “The Answer is no”.

[Lord Pannick]

My Lords, do the Government recognise the link between this Question and the previous three in that the European Court of Human Rights has played a major role over the past 40 or so years in combating arbitrary discrimination on grounds of sex and race and other invidious grounds?

[Lord McNally]

My Lords, I find that a very helpful contribution. When the question, “Are you in favour of the European Convention on Human Rights?” is asked, certain people will see the word Europe and their eyes will start spinning round. As the noble Lord has pointed out, however, if you ask people, “Do you want built into law protection against the power of the state?”, in the way that he has just illustrated, they will invariably say, “Yes, please”.

Legal Aid, Sentencing and Punishment of Offenders Act 2012 (Amendment of Schedule 1) Order 2012

Debate between Lord McNally and Lord Pannick

Tuesday 8th January 2013 Lords Chamber

[Lord McNally]

Well, we have had heard it over two years and both Houses have come to decisions on the LASPO Bill. As regards fatal Motions, I can speak from experience. I was part of engineering a fatal Motion on the casino Bill. That fatal Motion was carried by the House. The Government of the day did nothing further on the casino matter. If I may coin a phrase, as it says on the tin, fatal Motions mean what they say.

[Lord Pannick]

Given that the House rejected as inadequate the limited concession on legal aid in First-tier Tribunals, is it not truly perverse for the Government to respond by withdrawing even that?

[Lord McNally]

The Government have not withdrawn that concession. This House passed a fatal Motion meaning that that concession was no longer part of the Bill. That was the decision of the House. If I may so in the presence of the noble Lord, Lord Pannick, and of all those who voted for it, I made that very clear to the House before the vote.

Crime and Courts Bill [HL]

Debate between Lord McNally and Lord Pannick

Monday 10th December 2012 Lords Chamber

[Lord McNally]

My Lords, I will clarify a point raised by the noble Lord, Lord Pannick. The Justice Committee in Northern Ireland recently agreed to proceed with an amendment to its Criminal Justice Bill that would see this offence repealed. I am sure that the words uttered by the noble and learned Lord, Lord Carswell, about his own experience will carry great weight. However, this is a devolved matter for Northern Ireland.

[Lord Pannick]

I am grateful to all noble Lords who spoke.

--- Later in debate ---

[Lord McNally]

My Lords, this has been a very thoughtful debate, and people of great experience have put their views forward. I shall try again to explain where the Lord Chancellor is coming from and to reassure noble Lords on some of the points that have been made.

In bringing forward this amendment, the Lord Chancellor wants to clarify the situation and reassure the general public. Although the last contribution from the noble Lord, Lord Martin, was not in support of my proposal, it made the point that we are trying to deal with ordinary people dealing with situations in their lives. I understand lawyers making their points, but it is important that we see this from the public’s point of view. Although some recent cases have not led to prosecution and conviction, as I said, there may be cases in future which will benefit from the additional protection and clarification we are providing. Let me be very clear again, following on from what the noble Lord, Lord Martin, said, that this is not a vigilantes’ charter. In this country, there are still extremely strict rules about the possession and storage of guns which would still apply.

This is an attempt to recognise that people confronted by burglars, and acting in fear for their safety in the heat of the moment, cannot be expected to weigh up exactly how much force might be required. In these extreme circumstances, we think they should have greater legal protection. It is certainly not a licence to kill, whatever the circumstances. People will still be prosecuted if the use of force was unreasonable in the circumstances. The use of grossly disproportionate force will never be reasonable.

It will be for the courts to determine in each case what is disproportionate or grossly disproportionate. We want to make clear though that householders, who cannot always be expected to be thinking clearly if they are confronted by an intruder, will not be treated as criminals if they use a level of force which in the circumstances as they believed them to be is reasonable but turns out to have been disproportionate. We are clear that it is not open season for vicious attacks on anyone, even an intruder.

Let us also be clear, if somebody has been killed or seriously injured, an arrest may be necessary for the police to investigate thoroughly. A revised code of arrest for the police—PACE Code G—came into force on 12 November 2012 with new guidance on the circumstances in which an arrest may be necessary. The guidance also encourages the police to consider whether voluntary attendance at an interview might be a practicable alternative to a formal arrest. The changes we are making to the law will complement the improvements made to PACE Code G.

We are not changing the fundamental premise that a person can only use force that was reasonable in the circumstances as they believed them to be. The law on the use of force in other circumstances, for example, to defend oneself on the street, to prevent crime or to protect property will remain unchanged. We are trying to rebalance the law so that householders will not be thought of as criminals but, as I said at the beginning, quite properly as victims.

I am assured that we believe that the amendment is compatible with the ECHR and that we have recently published a memorandum in support of that view which I will put in the Library of the House.

Listening very carefully, I again pray in aid although I am not saying he is in support of this particular amendment, the Lord Chief Justice, who caught the mood behind the amendment at his press conference in September. He was reported as saying that,

“I am not talking about individual cases, but I know of cases, and I do read the newspapers occasionally”,

where,

“it looks as though the householder is the criminal”.

He then pointed out the circumstance of a householder facing a burglar.

“You are probably very cross and you are probably very frightened—a mixture of both—and your judgment of precisely what you should or should not do in the circumstances cannot, as another predecessor of mine (Lord Lane) said, you cannot measure it in a jeweller’s scale”.

The realisation that in such terrifying circumstances you cannot measure it in a jeweller’s scale led the Lord Chancellor to conclude that it would be better to clarify the law in a way which he believes will be more reassuring to the householder and give better guidance to the court.

[Lord Pannick]

Before the Minister sits down, have the Government consulted the Lord Chief Justice and the judiciary on this matter and, if so, what has been their response to the amendment?

[Lord McNally]

The amendment is a government amendment, and the Government stand by the amendment.

Crime and Courts Bill [HL]

Debate between Lord McNally and Lord Pannick

Tuesday 4th December 2012 Lords Chamber

[Lord McNally]

My Lords, I shall come clean with the House. Earlier, overtaken by the excitement of getting government amendments through, my noble friend Lord Taylor nodded through government Amendment 83, to which I was supposed to speak. It is grouped with Amendment 93, which gives me the opportunity to catch up with it. This allows me to make a concession which was argued with some passion by the noble and learned Lord, Lord Falconer, in Committee, about the provisions enabling the Lord Chancellor to sit on the selection panel for the Lord Chief Justice and the President of the Supreme Court’; sadly, the noble and learned Lord was here for only a fleeting moment.

In Committee, these provisions were a matter of considerable concern to many of your Lordships. Although I thought that I defended the position with considerable persuasiveness, the Lord Chancellor decided, the brief says here, that we have carefully considered the arguments that were put forward at that stage as well as those set out in the reports of the Constitution Committee and the Joint Committee on Human Rights. The amendments respond to those concerns by removing from the Bill those provisions relating to the Lord Chancellor’s ability to sit on the selection panel for the Lord Chief Justice and the President of the Supreme Court. Thanks to the noble Lord, Lord Taylor, we have already agreed Amendments 83, 84 and 85 in this group and I am now using this opportunity to move Amendment 93 and to speak to Amendments 97 and 98. I hope that the House will find this acceptable.

In view of the importance of the roles of the Lord Chief Justice and the President of the UK Supreme Court to the administration of justice, we remain of the view that the Lord Chancellor should have a role in these senior appointments. Accordingly, while we will revert to the existing arrangements in that the Lord Chancellor will not sit on the selection panel but will decide whether to accept the selection, reject it or ask the panel to reconsider its selection, we intend to augment these to ensure that the Lord Chancellor is engaged earlier in the selection process. Taking on board the comments raised in Committee, we now propose that the selection panel consults the Lord Chancellor during the selection process. This already occurs in relation to Supreme Court appointments but will be new in relation to the appointment of a Lord Chief Justice.

We have shared the draft indicative regulations with noble Lords relating to the appointment process and these provide for this consultation by the panel in relation to all appointments to the Supreme Court and to certain senior judges in England and Wales, such as the Lord Chief Justice and Lords Justice of Appeal. In addition to this, we will, as I have said, restore the current position whereby the Lord Chancellor will receive the selection panel’s report and, in the light of that, decide whether to accept or reject the panel’s recommendations, or alternatively ask the panel to reconsider its recommendation. I hope that noble Lords will agree that this approach now establishes an appropriate mechanism for the Lord Chancellor’s views to be heard, while safeguarding the impartiality of the selection process. I beg to move.

[Lord Pannick]

I thank the Minister for reverting to the important Amendments 83, 84 and 85. As the noble Lord mentioned, your Lordships’ Constitution Committee was critical of the proposal in the Bill for the Lord Chancellor to sit as a member of the appointments committee appointing the Lord Chief Justice and the President of the Supreme Court. The Minister's advocacy in Committee was outstanding but, as he will know, sometimes the best advocacy is in support of a completely hopeless cause. I genuinely thank the Minister and the Lord Chancellor for listening on this important subject. It is a matter of constitutional concern. I thank them for bringing forward amendments to the Bill in accordance with the recommendations of your Lordships’ Constitution Committee.

Civil Legal Aid (Merits Criteria) Regulations 2012

Debate between Lord McNally and Lord Pannick

Monday 3rd December 2012 Lords Chamber

[Lord McNally]

I do not believe that these matters remove access to justice. I notice that an organisation called MyLegal put out quite a long briefing, the interesting bit of which was on the last page, where it said that Ken Clarke had said these measures would cost £25 million. The briefing said that that was wrong and that it was £14 million. The noble Lord, Lord Bach, said that it would cost only £5 million. What I do know is that it will have a cost. When I am carrying out my other responsibilities in the Ministry of Justice and I am suddenly told by this House, which has no responsibilities in the Ministry of Justice, that I have to find £5 million, £15 million or £25 million, there are decisions that must be made. I sit on boards where people lose their jobs and where the management of these changes is extremely difficult. I have never tried to hide that but I ask this House to have a sense of responsibility. We came up with a concession after a lot of exploration and talks with departments and various boards. It is a narrow concession but it comes on top of a whole range of other concessions which we believe retain legal aid in a vast swathe of the process of welfare and which we think is in keeping with the promises we made to Parliament.

I ask this House not to go further in voting on this. I must make it clear that, if the amendment is carried and this concession is lost, the Act is still an Act of Parliament and will still be implemented in April but without this concession. I would consider that a rather pyrrhic victory.

[Lord Pannick]

My Lords, I am very pleased that the Minister has agreed to bring forward amending regulations that will deal with Regulation 53(b) and I thank him for considering the points that have been made in the debate. He mentioned that the regulations would focus on whether the alternative remedy is effective. I hope that when he and his officials read the record of this debate, they will see that the concern is that the criterion should state that the issue is whether the alternative remedy is a reasonable one to use in all the circumstances. It is not just a question of efficacy; it is also a question of speed and convenience, for example. The Minister indicated that he would consult noble Lords who have expressed concern about this. I very much hope that he will take further advantage of the free legal advice available from, in particular, the noble and learned Lords, Lord Mackay of Clashfern, Lord Woolf and Lord Goldsmith. I would be very happy to act as their junior in this respect. On that basis, I beg leave to withdraw my amendment.

Crime and Courts Bill [HL]

Debate between Lord McNally and Lord Pannick

Wednesday 27th June 2012 Lords Chamber

[Lord McNally]

As I said, this is hardly the audience for arguing or expecting support for retirement at 70. Indeed, sometimes when the noble and learned Lord, Lord Woolf, tells me about his itinerary for the following week, I realise that his idea of retirement is something quite different from that of most normal people. I am well aware that people can make a contribution.

The amendment is astute in singling out the Supreme Court, as it is in this court—which may be the pinnacle of a long career—where taking up office is more likely to occur when a judge is in his or her 60s. This can give rise to particularly unfortunate individual cases where a judge’s term of office may be rather shorter than we would have liked to see. I understand the arguments and the case that has been made. However, these individual cases need to be balanced against the bigger picture and the advantages of a uniform retirement age of 70 across the whole of the judiciary.

Mandatory retirement ages for judicial office-holders have played an important role in ensuring that the judiciary is, and is seen to be, independent. Quite rightly, once appointed to a salaried position, it is difficult to remove a judge from office before retirement. This, of course, is constitutionally correct and removes any risk of unwarranted interference from the Executive. While many judges may be able to continue to work, and to contribute as fully as ever, beyond the age of 70, that will not always be the case. Without the mandatory retirement age, if a judge beyond 70 insisted on continuing, there would be no way of removing him even where his colleagues considered that he was no longer quite as sharp as he used to be. Therefore, a standard retirement age, set at the right level, is needed. I do not think that anybody disagrees with that principle.

The Government consider that 70 is the right level. Indeed, this is at the higher end of international comparisons. It is also important in this context to consider the impact on public confidence in the justice system. The age of 70 strikes a balance between the desire of judges wishing to serve and the public interest in sustaining a judiciary that is fully effective in discharging its responsibilities. The amendment seeks to make a special case for the Supreme Court, so that the mandatory retirement age should be increased to 75. However, the reasoning for the age of 70 applies to judges of the Supreme Court as it does to other judges. People are people, whichever court they are sitting in. The age of 70 is, in our view, the right one—notwithstanding that it may seem premature in individual cases.

The retirement age also contributes to the need to bring in newer judges. Turnover in the senior judiciary is not significant as many judges remain in post until retirement. Given the statutory limit on the numbers of judges who can sit in senior courts, in particular the Supreme Court which is limited to just 12 judges, the opportunity to promote talented members of the judiciary from the lower courts is limited. Extending the retirement age to 75 in the Supreme Court would further limit movement from the Court of Appeal, which would, in turn, reduce opportunities for promotion to the Court of Appeal and have a trickle-down effect through the courts. This would also have the effect of delaying some of the positive impact on diversity, which that we would otherwise see through promotions from the lower courts.

Furthermore, it would be very difficult in practice to sustain a different retirement age just for the Supreme Court. Court of Appeal judges would be very likely also to make the case for extended retirement. A Court of Appeal judge who considers himself or herself a good candidate for appointment to the Supreme Court may find it difficult to accept that he or she had to retire at 70 if the Supreme Court were made up of judges who would automatically go on for another five years. If the age of retirement for the Court of Appeal were also extended, then why not the High Court and so on? If there is a clear business need, it is still possible for judges to continue to serve over the age of 70. Following retirement, members of the Supreme Court may go on to the supplementary panel. As a member of that panel, they might be asked to act as a judge of the Supreme Court. This enables the court to continue to make use of their experience and knowledge —but on a short-term basis.

I have listened to the contributions of the noble Lords and to the plea of my noble friend Lady Bottomley against ageism. Although the Government will keep this under review, we consider, for the reasons outlined, that the current mandatory retirement age of 70, together with the arrangements for sitting ad hoc after retirement, provide a careful balance between using experience, ensuring that the quality of the judiciary is maintained at all levels and ensuring the advancement of fresh talent. I also consider that differential retirement ages of different courts may be very difficult to sustain. We will keep this under review but, in the mean time, I ask the noble Lord, Lord Pannick, to withdraw his amendment.

[Lord Pannick]

My Lords, I am grateful to the Minister for saying that he will keep this matter under review. I hope that that means that it will be actively looked at before we return to the matter, as I am sure that we will, at Report. My answer to the question asked by the noble Lord, Lord Gilbert, about why we should have retirement age at all, is to point out the considerable difficulty of saying that someone is past it—particularly if they have tenure in the post. That is an extremely difficult task to perform in relation to individuals sitting on the Bench. That is why we have a mandatory retirement age. I have no difficulty with that. As I indicated, I am concerned that the retirement age of 70 is too high. However, I would say to the noble Lord, Lord Gilbert, that if he looks at the New York Times of 16 September 2010, he will see that Judge Wesley E Brown was sitting in the United States district court at the age of 103. The article describes how a tube under his nose feeds him oxygen during hearings. Sadly, Judge Brown has since died, but he did continue to an age much greater even than 75.

I do not accept the argument that the retirement age needs to be mandatory across the judiciary. I would hope that we could move to recognising the special position of the Supreme Court for all the reasons given by myself and other noble Lords. I certainly do not accept the argument that public confidence in the judiciary would somehow be undermined were judges to continue to the age of 75. I am not aware of any recent example of the public lacking confidence in our judges on the Appellate Committee—now in the Supreme Court—because they were between the ages of 70 and 75. It has already been indicated that some of the best and most valuable work of those senior judges, led by the late and much lamented Lord Bingham of Cornhill, was done between the ages of 70 and 75. That work would be lost.

Nor do I accept that there is any problem about new talent coming through because there are many vacancies for positions in the Supreme Court. However, the central point is that we are losing the best of our judges at too early an age. I hope that the Minister and the Lord Chancellor will reflect on this matter over the summer, but in the mean time, I beg leave to withdraw the amendment.

--- Later in debate ---

[Lord Pannick]

My Lords, that is a very disappointing response. Promoting diversity is one of the greatest challenges facing the legal system and it is quite unacceptable that when a statutory duty to promote diversity is already imposed upon the Judicial Appointments Commission, that same duty should not be imposed, as the noble Lord, Lord Deben, puts it, on those who have leadership roles in the legal profession. I am not persuaded at all that there are other statutory duties under the Equality Act, which do not seem to me to cover the same ground. Indeed, if they did it is incomprehensible why there is a specific statutory duty on the JAC under Section 64.

[Lord McNally]

I hear the disappointment in the noble Lord’s voice. I would hate this debate to end with any idea that I personally, and the Government, am not committed absolutely to furthering diversity in the legal profession and the judiciary. I have said that I will take the debate away—I may even take it to the individual noble Lords concerned—and consider what we do when we come back.

[Lord Pannick]

I am grateful to the Minister. I was about to say that I do not doubt for a moment the Minister’s personal commitment to diversity. I have heard him speak about it on a number of occasions, and he feels as passionate about it as others. The question is whether the Government’s position can move. I hope, for all the reasons that have been expressed in this debate around the House, that the Lord Chancellor and the Minister will look at this again over the summer and that progress can be made. I have no doubt that if there is no progress, no movement from the Government, the House will return to the matter on Report, but for now I beg leave to withdraw the amendment.

Legal Aid, Sentencing and Punishment of Offenders Bill

Debate between Lord McNally and Lord Pannick

Wednesday 25th April 2012 Lords Chamber

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

My Lords, Motion A is the Commons response to the amendment by the noble Lord, Lord Pannick. That amendment has prompted a great deal of high quality, thoughtful and principled debate, and I am extremely grateful to the noble Lord and other legal luminaries in this House who have given us the benefit of their expertise in exploring its effects. Although we have not been able to agree on precisely what those effects are, I thank the noble Lord for his clear argument and his commitment to the important constitutional principle of access to justice. I fully understand his motives in doing so. However, the House of Commons has given us its view on the amendment, and I ask the House to support the position that it has taken. I beg to move.

[Lord Pannick]

My Lords, I am very disappointed by the Government’s response to the amendment on the purpose of legal aid, approved by this House on Monday. Noble Lords will know that this amendment had its origins in a recommendation of your Lordships’ Constitution Committee, of which I am a member. The recommendation was strongly supported by many noble Lords at Second Reading and in Committee. The amendment was approved in this House on Report by a majority of 45 votes. After the other place disapproved of the amendment, this House voted again on Monday night, and your Lordships approved an amendment in similar terms, this time by a majority of 15 votes.

At no stage during this parliamentary process has the Minister or anyone else on behalf of the Government made any proposal, publicly or privately, for meeting the concerns of this House, whether by a revision of the wording of the amendments approved in this House or in any other respect. That is despite what the Minister kindly described as the very high quality debates that we have had in this place.

In my view, to ignore the views of this House in this way by bringing forward no proposal whatever to meet the concerns expressed here is, at the very lowest, most regrettable. It is all the more regrettable when the issue is of constitutional concern. I hope that these views may be shared, even by noble Lords who did not support the substance of this amendment.

The sorry state of this saga is exacerbated by the application of financial privilege to this amendment, even though it expressly stated that the allocation of financial resources was a matter for the Lord Chancellor’s discretion. This raises issues of considerable concern, which I hope will be shared on all sides of the House. Of course I recognise that financial privilege is not a matter for the Government, but I have had no indication at all that the Government made any representations in support of my contention, shared by many other noble Lords, that it would be quite inappropriate to apply financial privilege to an amendment that expressly stated that financial resources were a matter for the discretion of the Lord Chancellor.

Notwithstanding these matters, I have, with regret, come to the conclusion that I can take this amendment no further. Noble Lords have asked the other place to think again and it has done so. Although I disagree with the result, I do not think it appropriate to invite the House to press the matter further. I should add that if I were a Member of a House of which 80 per cent of Members were elected, I would certainly persist on this matter. Furthermore, given the very limited time made available in the other place for consideration of the amendments that we passed in this House, and given the general absence of scrutiny of this legislation in the other place, I suggest that it is not the procedures of this House that are urgently in need of reform.

I hope I will be permitted to make one other observation; I do so despite the genuine respect I have for the Minister. The unsatisfactory manner in which the Government have treated this amendment is, I regret, typical of the unsatisfactory manner in which the Government have proceeded on this Bill generally. The Government were defeated on this Bill on 11 occasions on Report and three times again last Monday. So large a volume of defeats occurred because the Government adopted inflexible attitudes and lost the arguments on their merits. Part 1 of the Bill has been made marginally better by the amendments, which are the product of the considerable work done on all sides of this House. The Bill would have been marginally better if this amendment had been accepted, but this remains a bad Bill and there remains in particular a bad Part 1 in it on legal aid.

The Government’s general inflexibility on the Bill, as with Amendment 1 in particular, has involved a failure adequately to assess the impact of the provisions before their implementation, a refusal to take on board the fact that many of the financial savings at which Part 1 is aimed are illusory because the denial of access to legal services will result in other financial costs to the state for disadvantaged persons who will be denied the benefits to which they are entitled, and because of a refusal to recognise that the limits on the scope of legal aid imposed by Part 1 will hit hardest the weakest and most impoverished sections of our society, often on complex questions of law such as are raised by immigration law.

The Government’s treatment of my Amendment 1 is, I regret, consistent with this inflexibility and narrow perspective. I am sorry to say that the product of the Minister’s hard work and the process followed by the Government on the Bill do not reflect well on this Government’s reputation. They have damaged access to justice, a fundamental constitutional principle, as this amendment sought to recognise. The Minister has repeatedly emphasised in this House that the Government have accepted amendments during the passage of the Bill, but those amendments have mainly been on matters that should never have been excluded from the scope of legal aid in the first place.

I pay tribute to the noble Lords, Lord Bach and Lord Beecham, for their tireless and eloquent work in exposing the defects in Part 1. I thank them, the noble and learned Lord, Lord Woolf, and the noble Lords, Lord Faulks and Lord Hart of Chilton, for adding their names to the amendment. I thank all other noble Lords who supported the amendment during the passage of the Bill.

Legal Aid, Sentencing and Punishment of Offenders Bill

Debate between Lord McNally and Lord Pannick

Monday 23rd April 2012 Lords Chamber

[Lord McNally]

My Lords, we can go round in circles. The qualification of financial privilege is a matter for the Clerks of the House of Commons. Former Mr Speaker Martin, when we last discussed this matter at the time of the Welfare Reform Bill, made very clear where the line is drawn.

I might not have had as long and continuous a place in the House of Commons as my noble friend but I have been around this place for the past 40 years, and one of the reasons why I teased some former Members of Parliament is that for the past 40 years, under various Administrations, I have heard these debates about the paucity of the way in which the House of Commons discussed a matter and the brutality with which the guillotine was used. That may well be one day—perhaps soon—the reason for a proper parliamentary reform Bill that takes in both Lords and Commons, but it is not an excuse for assuming that somehow, on this particular Bill and this particular issue, the Government are using chicanery or arguments that are not well understood in the relationship between these two Houses.

I also point out to the House that the one thing I have not done, and certainly did not do in my remarks at Report stage, Third Reading or today, is to hide behind financial privilege. I do not think that the Pannick amendment stands up to scrutiny and I was grateful for the contribution of a number of my noble friends in that. Part 1 of the Bill, the Lord Chancellor’s functions, states:

“The Lord Chancellor must secure that legal aid is made available in accordance with this Part”.

This seems to me a very clear statement of intent. The difference between the Act being replaced and this Bill is that the Act being replaced is an open-ended Act. It does not restrict where legal aid would apply. The whole point of the Bill—what makes it different from the previous Act—is that it limits, specifies and draws attention to where legal aid will apply and what will be out of scope. That is the danger of the Pannick amendment—that in its general good will to all men approach, it leaves the idea that things may be added. Indeed, both the noble Lord, Lord Howarth, and to a certain extent the noble Lord, Lord Pannick, said that when better days are here this whole circumstance may change. It may change, but not under a vaguely-worded Part 1 of the Bill. We have, in the course of the Bill, accepted an amendment from my noble friends that removed the ratchet and left a regulator in terms of what can be put back into the Bill, but that will be a matter for reflection and discussion in the future.

What worries me is that all the learned Lords who have spoken may be absolutely right, and if they are right we will all live happily ever after. But if they are wrong it is a future Lord Chancellor and the taxpayer who will have to pick up the consequences. Therefore, I think at this stage in the passage of the Bill, the Lord Chancellor of the day and the Government of the day see dangers in what, if it is anything, is either meaningless or has a meaning that has implications for the future; and if it does have implications for the future, in a Bill structured in this way, I think we are right to resist it.

I hope noble Lords will agree that the Lord Chancellor of the day and the Government of the day could and should have a sense of responsibility and care for the central architecture of the Bill, which we keep on talking about. The Bill is not open-ended but specific and the Pannick amendment is not something that should show on the face of the Bill. I hope that noble Lords reflecting on this, and the fact that it has been well considered and well debated and that I have not tried to hide behind financial privilege in addressing your Lordships either previously or today, will support the Government and the Commons in their amendment.

[Lord Pannick]

I am grateful to all noble Lords who have spoken in this full debate. I am grateful to the Minister for his consideration of the amendment and for meeting me last week to discuss the issues raised. The other place rejected the amendment and the Minister invites the House to reject the amendment because of a concern or belief that it would impose further obligations on the Government. In this House, a number of noble Lords objected to the amendment on the precisely opposite ground that it would impose no obligations on the Government. Perhaps I may briefly reply to both those concerns.

First, on the concern that the amendment would impose further obligations and would somehow undermine the architecture of the Bill, to use the Minister’s words, with great respect I have enormous difficulty in understanding those concerns. I could understand the concern if the amendment had any adverse financial consequences, but it plainly does not. It says,

“subject to the resources which the Lord Chancellor decides, in his discretion, to make available, and subject to the provisions of this Part”.

I am very grateful to the noble Lords, Lord Faulks, Lord Carlile of Berriew and Lord Phillips of Sudbury, for their views, which I share, that it is impossible to understand how in the real world this amendment could result in litigation that had any prospect of getting off the ground—certainly any more so than the original Clause 1. So the only possible objection to the amendment is that it does not impose further obligations on the Government and that it does nothing. That was the point made by the noble and learned Lord, Lord Lloyd of Berwick, and the noble Lord, Lord Lester of Herne Hill, and was a concern expressed by the noble Lord, Lord Phillips of Sudbury. I say to those noble Lords and to the House, with great respect, that that is to misunderstand the purpose of an objects clause. The purpose of the amendment is to ensure that the Bill recognises that we are cutting back on legal aid, most regrettably, because of current financial stringency, but that the principle of securing that individuals have access to legal services that effectively meet their needs, which has been part of our law since 1949, has not been forgotten. It is still the purpose of legal aid and, when the economy improves, that is the principle by which Ministers and Parliament should assess—

[Lord McNally]

I hate to stop the noble Lord’s flow, but he has just put his finger on it. This is not an interim, pro tem measure, waiting for a return to the 1949 Act. Although, as I mentioned in my opening remarks, financial considerations of course have played a part, the main intention of the Bill is to restructure, reshape and re-point the direction of legal aid away from the open-ended nature of the 1949 Act and successive Acts and put it into a closed system. It is that closed system that the noble Lord’s amendment, with great skill aforethought, plans to undermine. That is why we are resisting it.

[Lord Pannick]

I entirely accept the Minister’s point that the Bill seeks to identify those subjects for which legal aid should be made available. But the Minister will recognise that, in the anxious debates that we have had through the progress of the Bill, we have considered a number of sensitive topics in respect of which the Minister’s argument has been that we would like to provide legal aid for this subject but, regrettably, we cannot do so because we do not have the money under the current financial stringency. The House has listened to that debate and accepted, with a heavy heart, that in relation to many of the subjects in respect of which legal aid has previously been made available it will regrettably no longer be made available. Having accepted that the Government must have their way for financial reasons on many of those very difficult areas, I believe that it is absolutely vital that we retain in this Bill a statement of the principle of why legal aid is made available so that when the economy improves—

[Lord Pannick]

I have given way to the noble Lord before. I anticipate that the House is anxious to move on. The House has heard the debate in relation to this matter. I say to the House that that part of the 27 minutes which the other place devoted—I am not giving way—

[Lord McNally]

My Lords—

[Lord Pannick]

The House wants to move on. That part of the 27 minutes which the other place devoted to consideration of this amendment shows that the purpose and effect of this amendment were not understood. I think that we should ask the other place to think again on this important matter, and I wish to test the opinion of the House.

--- Later in debate ---

[Lord McNally]

My Lords, we now turn to Motion C and to Amendments 3 and 4, tabled by the noble and learned Lord, Lord Pannick. The noble Lord is not learned, is he?

[Lord Pannick]

No.

[Lord McNally]

The noble Lord’s amendments concern the independence of the director of legal aid casework. I am confident that we all share the sentiment that the Lord Chancellor should have no involvement in a decision about legal aid funding in an individual case. However, I share the view of the House of Commons that this amendment has undesirable and unforeseen consequences and that it is possible to provide the assurance and protection required without adopting the amendment.

The primary concern with these amendments is that they would have the effect of preventing the director being appointed as a civil servant. It is our strong view that the director will enjoy full independence from the Lord Chancellor yet can be appointed as a civil servant. For the avoidance of doubt, we are abolishing the Legal Services Commission and creating a new executive agency to provide Ministers with greater policy control and improved accountability for legal aid. Giving full independence to the director would run entirely contrary to this intention.

Clause 4 already provides protection in subsection (4) with a statutory bar on the Lord Chancellor’s involvement in making funding decisions in individual cases. The Bill also imposes a duty on the Lord Chancellor to publish any guidance and directions issued to the director, thereby providing transparency. Noble Lords will recall from Report stage that we amended the Bill to offer greater transparency by requiring the director to produce an annual report for the preceding financial year on the exercise of their functions during that period. This report will be laid before Parliament and published.

Legal Aid, Sentencing and Punishment of Offenders Bill

Debate between Lord McNally and Lord Pannick

Tuesday 27th March 2012 Lords Chamber

[Lord McNally]

My Lords, the noble Lord, Lord Pannick, has tabled his amendment along the lines he suggested on Report. He suggested then that it might be sensible to have a power to disapply the effects of Part 2 in relation to the abolition of recoverability of success fees and insurance premiums in respect of particular categories of case. The amendment now seeks to achieve that.

I have referred on several occasions during the passage of the Bill to its central architecture. The Government’s view, quite simply, is that the current recoverability regime is wrong in principle. It is wrong in principle to impose substantial additional costs on losing parties, whether in relation to success fees or insurance premiums. Those costs add to the already significant costs of civil litigation and allow for risk-free litigation by claimants and what I earlier described as inflation in our legal system.

I have explained the rationale for our proposals and why we consider that they should apply across the board without exception, and I do not propose to repeat those arguments now. The amendment seeks to allow different recoverability in different classes of case. We are implementing a package of reforms, not all of which are contained in the Bill. This package has been carefully put together to be fair between claimants and defendants.

I understand the noble Lord’s intentions. I understand that he thinks it sensible to allow for exceptions to be made at a later date. However, we are legislating now on what we consider to be a fair and overdue basis. Funding arrangements need a degree of certainty. Claimants and defendants need to be able to plan and adapt to the new regime. The amendment would only create uncertainty. Will an exception be created? For what and when? Rather than settling the issue of CFAs, as this Bill seeks to do, the amendment would open the door to constant campaigning and calls for individual exceptions. The amendment may be well intentioned but it is fraught with difficulty. It would provide uncertainty and confusion where we are seeking to introduce clarity. It would provide increased costs where we are seeking to reduce costs. It is wrong in principle and unnecessary. I urge the noble Lord to withdraw it.

[Lord Pannick]

My Lords, I am grateful to noble Lords who have spoken in the debate. I simply do not understand how the amendment undermines certainty any more than does the equivalent provision in Part 1. I repeat that it would simply confer a discretionary power on the Lord Chancellor. I understand that the Government believe that the architecture in Part 2 is correct, but the Minister should accept that experience may show that in some contexts, the architecture does not work. The amendment would, importantly, ensure that if those concerns prove to be justified, the Lord Chancellor will have a power to do something about it.

This is an important matter. I wish to test the opinion of the House.

Legal Aid, Sentencing and Punishment of Offenders Bill

Debate between Lord McNally and Lord Pannick

Tuesday 20th March 2012 Lords Chamber

[Lord McNally]

My Lords, I will explain. The original amendment by the noble Lord, Lord Pannick, did not cut the muster as legal statute. As the noble Lord knows, I have qualifications in this area, so I tweaked it a little, on the basis of my knowledge of part 1 of the relevant material on English legal institutions, to make it fit for purpose. I was glad to do so.

I am also glad to associate myself with the intervention of my noble friend Lord Phillips, who is on a roll today. I commend LawWorks and its encouragement of pro bono work on the part of solicitors, the Access to Justice Foundation and the work of the noble and learned Lord, Lord Goldsmith, in this area. We hope that it will increase the stream of funding available for pro bono work. I have great pleasure in saying that the Government accept this amendment.

[Lord Pannick]

I renew my thanks to the Minister. He is absolutely right; those advising him did indeed improve the drafting of the amendment and I am very grateful to them as well.

Legal Aid, Sentencing and Punishment of Offenders Bill

Debate between Lord McNally and Lord Pannick

Wednesday 14th March 2012 Lords Chamber

[Lord Pannick]

My Lords, I am sure the Minister will tell us again that the general regime for success fees and “after the event” insurance must apply to all cases and one cannot have exemption for this type of case. But have the Government given any thought to whether it might be desirable to include in Part 2 a provision similar to Clause 8(2) of Part 1, giving some form of discretion to the Lord Chancellor to exclude from the scope of Part 2, in the light of experience of how Part 2 operates, any categories of case in respect of which it becomes apparent after this Bill comes into effect that the system is not working very well and is causing practical problems about access to justice? It might then be more sensible to go back, in relation to particular categories of case, to the old system under which the unsuccessful defendant would have to pay the success fee. Will the Minister give some thought to whether a general power for the Lord Chancellor to that effect might not be a good idea? Things might look rather different in a year or two from how they look now.

[Lord McNally]

My Lords, we have reached the stage of the evening when the noble Lord, Lord Pannick, not only asks the questions but gives the answers as well—cutting out the middleman, which is me.

I take note of his suggestion. As I do with all our deliberations, I will report back to the Lord Chancellor on this. I would have thought that his experience of the willingness of your Lordships to make exceptions, one after another after another, will make him think that giving such flexibility in the Bill will only encourage a constant stream of exceptions coming to his door.

We have thought very hard about this. We think that the architecture is right. We think that by going back to the system as it broadly was under the noble and learned Lord, Lord Mackay, repairs the damage that was done by the previous Administration—with the best of good will. I will report, and I will even tell the Lord Chancellor that it was an idea of the noble Lord, Lord Pannick, which I am sure will produce the appropriate response from the Lord Chancellor.

Legal Aid, Sentencing and Punishment of Offenders Bill

Debate between Lord McNally and Lord Pannick

Monday 5th March 2012 Lords Chamber

[Lord McNally]

As we continue to point out, it is being paid for by taxpayers via my right honourable friend the Chancellor of the Exchequer. However, my noble friend does put a point. This amendment creates a warm glow. It is a general declaration which the noble Lord assures us will not really affect the workings of the Bill. I am telling him that the Bill, in its structure, covers all the important commitments that he seeks without misleading the public or Parliament about the very real constraints that we and previous Governments have had to put on the limits of legal aid.

[Lord Pannick]

My Lords, I am grateful to all noble Lords who spoke in this important debate. I am also grateful to the Minister for his thoughtful response. However, I am as puzzled now as I was when moving the amendment as to why the Government are resisting it. I am puzzled in particular because the Minister very helpfully repeated what was stated by the Justice Secretary in his Guardian article: namely, that the Government are committed to access to justice as,

“a fundamental part of a properly functioning democracy”.

Therefore, nothing is in dispute on this subject between the Minister and those of us who spoke in favour of the amendment. There is no issue of principle.

The Minister spoke about the need for the Government to take tough economic decisions. Many noble Lords will be very sympathetic to him on that. We will debate very contentious issues as we go through Report. However, I say to noble Lords that the point has no relevance to this amendment, which expressly inserts,

“within the resources made available and in accordance with this Part”.

This is not a partisan amendment. The case for it—and indeed the case against it—does not depend on the views that noble Lords may have on the merits or otherwise of the Government’s proposals on the scope of legal aid.

I will make two further points. The Minister made the point that there is no constitutional right of access to legal aid in all circumstances. Of course, he is right. Access to legal aid has always been subject to conditions, criteria and limitations. We will come on to debate whether there should be further restrictions, conditions, criteria and limitations. However, a provision in the terms that I propose has always been part of legal aid legislation, even though it has never in absolute terms provided legal aid in all circumstances.

[Lord McNally]

Would the noble Lord not concede that the difference between this Bill and previous Bills is that previous Bills have been open-ended, so the kind of commitment that he talked about was reasonable, whereas Schedule 1 to this Bill specifies what we will do? He wants to insert a warm glow in the Bill, but putting warm glows into Bills is not good.

[Lord Pannick]

The Minister may disagree, but I take the view that because the Government now wish to specify areas where legal aid will continue to be available, it is all the more important that the statement of constitutional principle about access to justice continues to be part of the legislation, subject to available resources and the provisions of this part.

The noble Lord, Lord Thomas of Gresford, said that the statement of purpose was unnecessary since access to justice was not being abolished. He also suggested that the amendment contained unnecessary verbosity—a surprising allegation about an amendment that is 23 words long. I take the view that when Parliament redefines the scope of legal aid, and does so in provisions that will inevitably be controversial, it is vital that it should restate its recognition of this important constitutional principle. I hope that noble Lords on all sides of the House will feel able to support the amendment, which does no violence whatever to the Government's general objectives in relation to the Bill. I wish to test the opinion of the House.

Legal Aid, Sentencing and Punishment of Offenders Bill

Debate between Lord McNally and Lord Pannick

Wednesday 1st February 2012 Lords Chamber

[Lord McNally]

The wonderful thing about this House is that you get free legal advice. I will certainly take that back to the Lord Chancellor with the weight of the advice of the noble and learned Lord, Lord Goldsmith, behind it. With that further steer, I would be grateful if the noble Lord, Lord Pannick, withdrew the amendment.

[Lord Pannick]

I am very grateful to the Minister. I will of course withdraw the amendment. I am very grateful to the noble and learned Lord, Lord Goldsmith, for his support, as I am to the noble Lord, Lord Bach, for his. It would indeed be churlish of me not to understand and accept the indications given by the Minister in respect of the amendment, which is plainly receiving far warmer consideration than some of the other amendments that we have discussed. I have to say that I cannot understand what further consideration is necessary in relation to an amendment of this sort in the light of the factors to which this debate has drawn attention, but on the understanding that this matter is receiving proper attention, in the hope that the Government will be able to bring forward an amendment in appropriate terms on Report and in thanking the Minister, I beg leave to withdraw the amendment.

Legal Aid, Sentencing and Punishment of Offenders Bill

Debate between Lord McNally and Lord Pannick

Monday 30th January 2012 Lords Chamber

[Lord McNally]

My Lords, I do not think that it is analogous. The other actions that the Government are taking address some of the issues that have been raised tonight. We are exploring other initiatives that we can take. I do not think that it is necessary, therefore, to make the exception that is being argued for. It is admittedly being argued for very powerfully, but it is not enough to convince the Government.

[Lord Pannick]

Does the Minister seriously dispute that the provisions in the Bill will at least to some extent damage the ability of claimants in this area to obtain legal advice and assistance and will make it more expensive for them to do so? If he does not, is it really fair to impose these provisions?

[Lord McNally]

I do not know how lawyers will behave. I hope that they will behave a lot better than in some of the worst-case scenarios. People who go into litigation, even in cases like this, will to a certain extent be taking risks. If one were to listen to the arguments put by the noble Lord, we would have a legal aid system that paid for everything, and we cannot afford it. Therefore, we are trying to create with limited resources one that is fair. Of course, with his eloquence and ingenuity, the noble Lord can always pitch questions to me that make it sound as though I am saying, “No, let them eat cake”, which is certainly not our intention.

[Lord Pannick]

However, we are concerned here not with the expenditure of public funds but with a fair allocation of risks as between the defendant and the claimant. With respect, I do not understand the noble Lord’s point in relation to that. Is it really right that the interests of this group of claimants should depend upon the Government’s inability to predict how lawyers are going to behave? Surely this should not depend on how lawyers behave.

[Lord McNally]

This is not only about public funds, but it is about how you create—to use this term again—an architecture for this type of litigation that squeezes out from the system the inflation that went to the lawyers. That was identified by the Master of the Rolls, by the Lord Chief Justice and by Lord Justice Jackson. In trying to respond to that problem, I am fully aware of the hard cases, and I have spent most of the afternoon dealing with them. Of course hard cases are difficult to argue, but that is the central issue that we are trying to address. To succeed, we will have to stand firm against some of these hard cases, I am afraid.

Legal Aid, Sentencing and Punishment of Offenders Bill

Debate between Lord McNally and Lord Pannick

Monday 30th January 2012 Lords Chamber

[Lord McNally]

The bits that we are in favour of are in the Bill.

As someone who firmly supported the Hunting Act, I am not sure that I am allowed to use the term “shot my fox”, but the arguments that I was intending to deploy were very accurately read out by the noble Lord, Lord Bach. They remain the same as those which my honourable friend Jonathan Djanogly deployed in the Commons—that is, under our reforms people will still be able to bring cases on CFAs in areas where they are currently used in judicial review. After all, we are returning the arrangements to their original form. Legal aid is being retained for the vast majority of judicial review cases that are currently funded. Legal aid recipients will continue to benefit from costs protection. Although I understand what the Opposition are doing in testing various parts of the architecture of the reforms, I can only say again that we will resist the amendments, as they seek to undermine the Government’s reform of civil litigation funding and costs.

I have listened carefully to the arguments advanced in respect of exceptions in individual areas. However, we should not revisit arguments that have already been fully and properly aired in these debates. I am concerned that making the exceptions that the amendments advocate would undermine the benefits of our reforms. I therefore urge the noble Lord to withdraw the amendment.

[Lord Pannick]

Does the Minister accept that claimants in judicial review cases will not be able to pay success fees, because victory in a judicial review almost never results in the payment of damages to the claimant?

Legal Aid, Sentencing and Punishment of Offenders Bill

Debate between Lord McNally and Lord Pannick

Tuesday 10th January 2012 Lords Chamber

[Lord McNally]

I can do no more than suggest that the noble Lord reads the Bill, because it sets out the structure for carrying out this function within an agency which is within the Ministry of Justice and staffed by civil servants appointed on the criteria which have stood us in good stead for the past 130 years. Again, as with the other contributions to this debate, I will take those matters back and see whether there are areas that can be better clarified to give my noble friend the assurances that he requires.

[Lord Pannick]

My Lords, I am grateful to the Minister for the constructive approach that he has taken to the important issues raised by this debate. I would ask him to reflect with the Lord Chancellor on the central points which have been made by noble Lords on all sides of this Committee, and to whom I am very grateful. A civil servant—the director—is going to have the crucial task of determining who has effective access to justice. The director is going to do that, often in contexts where the Government are the potential defendants. It is then striking, as many noble Lords have pointed out, that Clause 4 says nothing express about ensuring the independence of the director. This is a particular concern, as noble Lords have emphasised, in the light of the uncertainty as to the limits of Clause 4(3).

Clause 4(4), as the noble Lord, Lord Thomas of Gresford, has emphasised, is not sufficient protection because it does not prevent directions from the Lord Chancellor to the director about categories of cases, or indeed as to the general approach to be adopted by the director. As I understood it, the Minister's response to this was that the Government's position today—although the Minister emphasised that that may change—is that they are as keen on independence as everybody else. If I understood him correctly, he said that independence is a fundamental tenet of this arrangement. The position of the Minister and the Government today is that Clause 4 is designed to achieve that objective and therefore these amendments are unnecessary.

The noble Lord will appreciate, and I hope that he will communicate this to the Lord Chancellor, that around this Committee the view is taken that, with great respect, that is not good enough because noble Lords prefer an express statement of the basic constitutional principle on which we are all agreed as to independence. Noble Lords prefer the drafting of Clause 4 to contain clear limits on the powers, in this context, of the Lord Chancellor and clear safeguards of the independence of the director. I hope that the Minister will be able to ask his officials to look again at the wording of Clause 4 so as to achieve these objectives, otherwise we will undoubtedly be returning to this matter on Report. For the time being, I beg leave to withdraw this amendment.

Legal Aid, Sentencing and Punishment of Offenders Bill

Debate between Lord McNally and Lord Pannick

Tuesday 20th December 2011 Lords Chamber

[Lord McNally]

As I said, I reflect on almost anything that my friend says, and it is now in Hansard as well.

[Lord Pannick]

My Lords, this has been a lengthy debate that has touched on a large number of very important issues. In responding, perhaps I may briefly take the attention of the Committee back to what we are debating: the terms of Amendment 1. With all due respect to the Minister, I simply cannot understand his objection to the amendment. It is not a matter of legal complexity, it is not a matter of legal expertise, and it is certainly not a matter of philosophy. Surely the amendment identifies in terms that I hope are clear and uncontroversial the aims of the legal aid system in our society. It recognises that the provision of legal aid must be within available resources, so it does not cut across the Minister's understandable desire to save money. There is no question of the amendment requiring a “blank cheque”, which was his phrase in answering criticisms of the Bill. Surely a statement of constitutional principle such as this is absolutely vital at the start of a Bill of this nature.

I suggest to noble Lords that the Government's refusal, through the Minister, to recognise a simple, and I hope uncontroversial, statement of principle in Clause 1 is deeply troubling in what it tells the Committee and the world outside the House about the Government's approach to legal aid and to the more detailed provisions that we will come to debate in Committee.

Justice: Pre-trial Publicity

Debate between Lord McNally and Lord Pannick

Wednesday 14th December 2011 Lords Chamber

[Lord Pannick]

Will the Minister bear in mind that the Contempt of Court Act 1981 liberalised the law precisely because the previous law restricted newspapers from publicising matters of public interest, in particular scandals such as the thalidomide affair?

[Lord McNally]

My Lords, we are aware of that, and we are very concerned to make sure that we get the balance right. However, where the press’s desire to sensationalise actually jeopardises a case, either by prejudicing the case against an innocent man or, almost as bad, so prejudicing a case that someone who is guilty has to be released, it cannot be in the interests of justice.

Supreme Court: President

Debate between Lord McNally and Lord Pannick

Wednesday 16th November 2011 Lords Chamber

[Lord Pannick]

To ask Her Majesty’s Government whether they have plans to amend the Constitutional Reform Act 2005 so that the president of the Supreme Court is not required to chair the selection commission for the appointment of his successor.

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

My Lords, the noble Lord will be aware that this is one of the matters being considered by the Constitution Committee of this House under the chairmanship of the noble Baroness, Lady Jay. However, the Government are committed to implementing the recommendations of the Advisory Panel on Judicial Diversity, which was chaired by my noble friend Lady Neuberger, including the recommendation that no judge should be directly involved in the selection of their successor. We are considering this issue along with the evidence presented to the House of Lords Constitution Committee and will shortly start a broader consultation on the matter.

[Lord Pannick]

I am grateful for that very helpful answer. Does the Minister appreciate that there is some urgency about this because the president of the Supreme Court, the noble and learned Lord, Lord Phillips of Worth Matravers, is retiring next summer? I think that the Minister is saying that he agrees that it is highly undesirable that a retiring judge, however distinguished, should play so significant a role in the appointment of his successor. Can he please indicate that there will be some urgency in the way in which the Government deal with this?

[Lord McNally]

There will indeed be urgency and, as the noble Lord knows, we have had some very good advice on the matter from the noble and learned Lord, Lord Phillips, himself.

Parliamentary Voting System and Constituencies Bill

Debate between Lord McNally and Lord Pannick

Monday 13th December 2010 Lords Chamber

[Lord McNally]

My Lords, that is not a question for today. We should wait to hear the Government’s decision and then go through the normal parliamentary processes and consultations. That will take place all in good time. It would not be appropriate for me to make commitments at this Dispatch Box about either the timing of, or consultation around, another Bill altogether. I say to the noble Lord, Lord Foulkes, that his best support has come from the noble and learned Lord, Lord Lloyd, who thinks that this is half a loaf, and from the noble Lord, Lord Bach, who thinks that it is going too far. I suggest that this is not the basis for pressing an amendment. The Government accept that they are legally obliged to lift the blanket ban on prisoner voting in UK parliamentary elections. However, accepting this amendment and allowing a category of prisoners to vote in the referendum would pre-empt Parliament and prevent it following the proper course of debating prisoner voting in both Houses when the Government have come forward when their proposal. I therefore ask the noble Lord to withdraw the amendment.

[Lord Pannick]

Will the Minister at least give the Committee an assurance that when the Government come forward with their proposals for reform in this area, they will bring forward an amendment to the Bill that is consistent with the general approach that they propose, so that we do not find, when this referendum takes place—next May or whenever—that prisoners whom the Government accept should have the right to vote are denied it?

[Lord McNally]

No, my Lords, I cannot make that commitment. The legislation is specific to this referendum. When the Government have a Statement to make on prisoner voting, there will be time to discuss this and many other matters.

Coroners and Justice Act 2009

Debate between Lord McNally and Lord Pannick

Wednesday 24th November 2010 Lords Chamber

[Lord McNally]

Believe it or not, a national coroner for treasure is not in this brief, so I promise to write to the noble Lord. As a former member of the All-Party Archaeology Group, I hope that progress is being made, subject of course to the financial constraints that we found ourselves in when we took office.

[Lord Pannick]

Does the Minister accept that one of the reasons for creating the post of chief coroner was to reduce the costs, both legal and administrative, of defective decision-making? Does he therefore not accept that to fail to proceed with the appointment of a chief coroner is a false economy?

[Lord McNally]

I disagree. The savings are £10 million in set-up costs and £6 million a year in running costs. Although I freely accept that it is a big challenge for the Ministry of Justice, we believe that we can deliver the core measures in the Coroners and Justice Act through the ministry. We have put a great deal of effort into consulting on and then bringing forward a charter for the bereaved, which we hope will deal with many of the problems to which the noble Lord has referred.

Supreme Court: Retirement Age

Debate between Lord McNally and Lord Pannick

Monday 12th July 2010 Lords Chamber

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

My Lords, the Government are considering the issue in consultation with the judiciary and others.

[Lord Pannick]

I am grateful to the Minister. Will he congratulate the Lord Chancellor on his 70th birthday earlier this month, and suggest to him that to require Justices of the Supreme Court to retire at that age, if they were appointed to the Bench after March 1995, is a terrible waste of judicial experience, wisdom and knowledge? It is especially unfortunate when some Supreme Court Justices are only appointed to that court in their mid to late 60s.

[Lord McNally]

My Lords, I first assure the noble Lord, Lord Pannick, that the Lord Chancellor and I share the view that reaching 70 is not the end of a contribution to public life. In fact, in this House most think that it is only beginning. The age limit of 70 was brought in by the reforms of my noble and learned friend Lord Mackay. The Lord Chancellor is examining it, and he is also consulting carefully with the judiciary.

Political and Constitutional Reform

Debate between Lord McNally and Lord Pannick

Monday 5th July 2010 Lords Chamber

[Lord McNally]

I am sorry, I meant AV. It is for Parliament to scrutinise and Parliament will decide.

[Lord Pannick]

Can the Deputy Leader clarify what is the purpose of legislating to allow for a dissolution of Parliament on a two-thirds vote of the Members of the other place? Her Majesty’s Opposition will of course seek to persuade that House, on a 50 per cent vote, to pass a vote of no confidence. This matter was raised by the noble Baroness, Lady Royall, but the noble Lord gave no answer.

[Lord McNally]

The point is that once we have got to a system of fixed-term Parliaments, to prevent the Government of the day engineering an early dissolution for their own short-term political advantage, they would therefore need a two-thirds majority—something that no Government in the UK have had since the war. As I said in my opening response to the noble Baroness, it is belt and braces against what we are trying to get away from. We are trying to move to the stability of a fixed-term Parliament and away from Governments of the day using early elections for short-term advantage.

Immigration: Refugee and Migrant Justice

Debate between Lord McNally and Lord Pannick

Monday 28th June 2010 Lords Chamber

[Lord McNally]

There are no estimates on that. There will be an extra cost, but Ministers had to face a balance of judgment: did they take into account that RMJ was going into administration and that therefore there would be knock-on costs, or did they give it more taxpayers’ money with no guarantee that it would not again find itself in difficulty in a short time? It was a hard call but, as the noble Lord knows full well, sometimes Ministers have to make hard calls.

[Lord Pannick]

Will the Minister confirm that the problem faced by RMJ is the consequence of payments being made only after decisions are taken by the Home Office, or by the tribunal, in an individual immigration case, and that that can take two years or more? Will the Government therefore consider introducing a system of interim payments so that competent and efficient organisations such as RMJ are not threatened with closure?

[Lord McNally]

My Lords, if the description “competent and efficient” was correct for RMJ, one asks how it managed to get itself into administration. It represents 7 per cent of cases, so organisations representing 93 per cent are coping. Again, it was a difficult decision to make and I know that there have been complaints about the tough system of paying. However, we are dealing with taxpayers’ money and there is justification for ensuring that the organisations provide value for it. It may be worth noting that, in the round of bids, double the number of law firms are bidding for this business. That suggests that RMJ is not alone and that companies believe that they can deliver the service under the present scheme.

Justice: Legal Fees

Debate between Lord McNally and Lord Pannick

Monday 21st June 2010 Lords Chamber

[Lord McNally]

I can give assurances that we will treat the matter with all due seriousness. Whether we will follow the same path as the previous Administration is more questionable. As the noble Lord will know, Lord Justice Jackson has made a different recommendation about how to deal with this problem. We will weigh up what he has argued in his report and consider the debate in this House and other views on what the previous Administration was proposing to do.

[Lord Pannick]

My Lords, can the Minister confirm that a very large proportion of success fees are paid in defamation cases brought by claimants who are sufficiently wealthy themselves to pay a proper professional fee for their action? Therefore, success fees make no contribution whatsoever to proper access to justice. In asking that question, I declare an interest as I act for Mirror Group Newspapers, which is bringing proceedings in the European Court of Human Rights relating to success fees in the case of Naomi Campbell and her privacy complaint.

[Lord McNally]

Having spent some years treading the line between public relations clients and what I could say in the House, I am always very envious of how my learned friends manage to tread that line so well. This defamation area produces great scandals, and I think that the balance of Lord Justice Jackson’s report will point us in the direction of urgent action. I pay tribute to the noble Lord, Lord Lester, who has made available to my department his not inconsiderable research and preparation for a Defamation Bill, which will, I hope, enable us to move forward very quickly on this. I do not think I will say any more about the Mirror Group case.