Legal Aid, Sentencing and Punishment of Offenders Bill

Lord Morris of Aberavon Excerpts

Tuesday 20th March 2012 Lords Chamber

If the Government accept this amendment they will save the considerable cost of defending that appeal. For the issue in that appeal will then have become academic. If they do not accept this amendment and lose the appeal, as they well may, they will be obliged to bring in primary legislation to give effect to that decision and thus bring us into line with every other European country except, for some reason, Holland. On any view it would surely make sense for the Government to accept the amendment now and to save the expense. I beg to move.

[Lord Morris of Aberavon]

My Lords, I support the noble and learned Lord, Lord Lloyd. All he wants to do in the amendment, as I understand it, is to go back to the pre-2003 position. Because of judgments of the European Court, the Home Secretary is not able to take such a decision, but successive Home Secretaries have not been willing to give this kind of decision to the Parole Board, as envisaged in the noble and learned Lord’s amendment.

I believe that the present position is untenable. The noble and learned Lord referred to the case of Vinter, in which it was decided—by a majority of four to three, a tiny majority—that this was not an inhumane process. I do not always have the greatest confidence in this court, which is not a very happy court to be in. When I appeared before it as an attorney, you had half an hour. Your opponent had half an hour in which to reply. You might have had a few minutes to say a few more words but the court would file out having heard the argument and not have any exchange whatever with counsel or carry the matter any further. A few months later you would have a decision.

As I understand it, this matter will undoubtedly go to an appeal. It will be considered by a court of five and the Government may lose. In all probability, it may then go, if leave is given, to the Grand Chamber and the Government may lose. With these tiny votes and these tiny majorities, one cannot be sure what will happen in this court. The Government will be in a very difficult position and will undoubtedly have to take action.

Without any further words, I believe that the present position is not compassionate, is not human and is not in the interests of justice, whatever that may mean. Surely to leave an individual in this kind of limbo, which he was not left in previous to 2003, is not a practice that would commend itself to the civilised world. I therefore support the amendment.

[Lord Pannick]

My Lords, I have added my name to this amendment so persuasively moved by the noble and learned Lord, Lord Lloyd of Berwick. We are here concerned with the most awful cases of murder but, as your Lordships have heard, prior to 2003 such cases were reviewed after 25 years. There is no suggestion that that gave rise to any difficulty or any problems at all. The argument for the amendment is very simple. It is simply wrong in principle for anyone, however wicked, to be told that they must spend the whole of their life in prison with no possibility of review, however long is going to elapse and whatever progress they may make.

It is unlikely that a murderer who has committed such grave crimes that he has received a whole-life tariff will ever make the progress that would make release appropriate, but the point surely is that basic humanity demands that the offender has a chance, however remote, to prove to others and to himself that he can live a worthwhile life. It is surely also very unfortunate from the point of view of prison administration that a group of highly dangerous persons —that is, dangerous when they are sentenced—should be told that however well they behave they will never be released. Surely that makes our prisons much more dangerous places.

I have no confidence that the Minister will tell the House this evening that he will accept this amendment. I very much hope that he will but I have no confidence that he will in the light of what he said in Committee. However, I urge him to ask himself whether our penal regime should really be based on a principle of locking the prison door and throwing away the key.

Legal Aid, Sentencing and Punishment of Offenders Bill

Lord Morris of Aberavon Excerpts

Tuesday 10th January 2012 Lords Chamber

[Lord Clinton-Davis]

The consortium has opined that deleterious effects will follow the Government’s proposals. It says that the standards and availability of experts will disappear or be badly affected. The Committee is entitled to know—I hope the Minister will discharge this in his speech—what meetings have taken place with the consortium. What are the effects? Are the Government closing their mind entirely to the representations that are being made?

[Lord Morris of Aberavon]

My Lords, a range of issues could be raised under the amendment, which I support. It is self-evident—it speaks for itself—that there should be accessibility to and a maintained quality of expert evidence. For justice to be done, it frequently turns on the quality and persuasive ability of the expert who is giving evidence.

We are debating the generality of the need for expert evidence. When we come to clinical negligence, we will return to more specific questions about the need to maintain particular panels. People in this field are highly respected and in very great demand, and frequently the problem is to lay one’s hands on someone who can deal with your specific problem. When I was a very young man, for a very short time I had something to do with mining cases in south Wales—a very long time ago—where the quality of the experts on both sides of the mining industry ensured that justice was done because the judges frequently knew many of the experts. The experts were well qualified on both sides. More often than not, cases were settled in view of the nature of the expert evidence that had been tendered, and that saved individuals and the state a great deal of money.

Justice: Pre-trial Publicity

Lord Morris of Aberavon Excerpts

Wednesday 14th December 2011 Lords Chamber

[Lord McNally]

My Lords, my noble friend’s idea is an interesting one. I understand—just a thought—that an editor has not been sent to prison for contempt since 1948. The Attorney-General, who has been alive to this matter, said in a lecture at City University on 1 December that, in his opinion, the press has been pushing at the boundaries and in a sense has subtly been seeking guidance on what is acceptable. I hope that the Attorney-General’s action has given it suitable guidance that we take this matter very seriously.

[Lord Morris of Aberavon]

My Lords, while I am confident that the Attorney-General will keep a watchful eye on this issue and commence proceedings, as he has indicated, where necessary—as I had to do two or three times—I also wonder whether standards have deteriorated. Have there been discussions—should there be discussions—with the press generally to try to avoid prejudice long before contempt proceedings have to be contemplated?

[Lord McNally]

My Lords, I agree with the noble and learned former Attorney-General. At the City University lecture to which I referred, the Attorney-General said that it appeared to him that,

“the press had lost any sense of internal constraint and felt able, indeed entitled, to print what they wished, shielded by the right of ‘freedom of expression’ without any of the concomitant responsibilities”.

We are indeed making it clear to newspapers that the law exists in this area. As he has already demonstrated, the Attorney-General is willing to follow the example of his predecessor and take action under that law.

Legal Aid, Sentencing and Punishment of Offenders Bill

Lord Morris of Aberavon Excerpts

Monday 21st November 2011 Lords Chamber

[Lord Morris of Aberavon]

My Lords, in the limited time available, I shall try to avoid Committee points, but I am confident that this House has a formidable task as a revising Chamber. The Lord Chancellor was, reputedly, one of the first to agree to the Treasury’s demand to contribute to the cut in the deficit. With hindsight, that might turn out to be a mistake. All his proposals flow from his efforts to meet the required amount: sentencing, remission, prison numbers and now the legal aid budget. Our job is to assess their fairness. How fair are they? In which fields will the most vulnerable suffer disproportionately? The words of the late Lord Bingham ring in our ears—they have already been quoted by my noble and learned friend Lady Scotland. He said that,

“denial of legal protection to the poor litigant who cannot afford to pay is one enemy of the rule of law”.

The Law Society, in today’s Times, recites some of the most vulnerable who will suffer. This House will have to examine in detail proposals for family law, some victims of domestic abuse, and victims of clinical negligence. The view has already been expressed of the grave concern that clinical negligence will be outwith legal aid. In the absence of legal aid, no-win no-fee has been the only means of litigation for many. From what I understand, a great deal of the ground is to be cut from under the feet of many by the Bill’s proposals.

Let me pinpoint one issue—the environment. As a constituency MP for more than 40 years, I was constantly reminded of environmental problems created by industry and developers. Litigation is the last resort in these fields, only when other means have failed. It is a battle of David and Goliath. There are occasions when the means should be provided for David to have his day in court. The Bar Council, in response to the Government’s proposals for legal aid reform, has made proposals for £350 million savings in the administration of justice. It is the profession’s belief that its views have fallen on deaf ears.

Let me make one point of detail—a detail which, if continued to be ignored, distorts the legal aid budget substantially. I have defended over the years many defendants who have hitherto enjoyed significant wealth. The cases would involve drug dealing, particularly importation, VAT frauds, mortgage frauds and the like. The defendants would frequently, having enjoyed the trappings of wealth, be on legal aid—or, in the course of a trial would be granted legal aid. You may well ask why. It would be because their assets would have been frozen by court orders on the application of the CPS. At that point, they would be persons without resources, eligible for legal aid, and in many cases treated as men of straw.

Let me give the basis of all this. In 2005, more than 50 per cent of Crown Court legal aid expenditure was consumed by 1 per cent of cases. These are the kinds of cases I was involved in. The average cost per case would be £2.6 million. To give an idea of the sums under restraint, the value in 2009-10 was £560 million, rising to £744 million in 2010-11. If we used some of that money for legal aid that is not necessary, the legal aid budget would be more realistic, fairer and more easily understood. The Treasury says that it can recover some of the money through confiscation orders. But how successful is it? Does not that basis distort the whole picture of legal aid? In any event, I believe that it is an unfair and distorted way of portraying and allocating public expenditure.

I will touch briefly on sentencing. When I sat as a recorder from 1973 to 1997, we were bombarded each year by criminal justice Acts. Sentencing was a labyrinth that you navigated as best you could. The pressure on the judiciary to get a sentence right was unremitting. Let me give two examples of how some things fell into or out of favour. At one stage, suspended sentences were very much in favour—with or without conditions. Then they fell out of favour. And now we are, back again, to look at how they are to be implemented. Secondly, the four-year imprisonment tariff became important; release depended on whether the sentence was just under or just over four years. That had immense consequences for the sentencing judges.

Some of the proposals in the Bill may well have a great deal of merit. We will examine them exceedingly carefully and hold on to that which is good. But I hope and pray for some respite in the introduction of the equivalent of the criminal justice Bills which change whatever is the fashion from year to year. The judiciary should be allowed to get on with it. Sentencing would be easier; the professions would understand it better; and the defendant—an equally important person—would understand it better. Constant changing in sentencing does not make life any easier for anyone at the criminal Bar.

Public Bodies Bill [HL]

Lord Morris of Aberavon Excerpts

Monday 28th March 2011 Lords Chamber

[Lord Morris of Aberavon]

In the interests of brevity, I shall make just two points. There must be a meaningful and transparent financial arrangement between the BBC and S4C if S4C is not eventually to be swallowed up by the much larger BBC. Think of the tale of Jonah and the Whale. Mark Thompson says that he is the custodian of the licence fee. He does not own the licence fee. It is the licence fee payers’ money. If it has to be funnelled through the BBC, if there is no top-slicing—and I suspect the Minister would lose that battle—I shall make one practical suggestion; we are all familiar with legislation stating that money cannot be spent without the consent of the Treasury. Let us borrow from that and say that any money that goes via the BBC to S4C must go with the consent and approval of the Secretary of State. I suspect that that will get over most of the accounting problem, and it will underline the Secretary of State’s responsibility to ensure independence and financial independence for S4C.

My second point is about the appointment of the chair, which was referred to in the Minister’s letter and which I raised at the meeting with him. I think he has fully taken the point on board. Both sides of the House will have some experience of appointments in Wales. I am proud of the appointments that I made when I was Secretary of State from Lady White to the Land Authority to Lord Gibson-Watt to the Forestry Commission. They were personal appointments. The Minister and his good intentions will be judged by the kind of person who is appointed to the chair of S4C. He or she must be a figure who is respected throughout Wales, with a proven track record in administration and who can stand up for S4C and Wales and not become a sort of BBC toy-boy or toy-girl. At every appointment, there will be a parade of those who have served and graced our quangos in Wales. I can assure the Minister that they are the same lot every time they come. They go round and round. I suggest that the Secretary of State is bold and considers someone with at least some experience outside Wales and a deep knowledge of Welsh and Welsh affairs. Our nation, knowing that person’s track record, would have some confidence in his or her stewardship. The Minister might well have to reach out to find some such person. I know such a person is there. Please do not give us the old retreads from the old quangos who have not done particularly well in Wales.

Justice: Judicial Appointments

Lord Morris of Aberavon Excerpts

Thursday 17th March 2011 Lords Chamber

[Baroness Kennedy of The Shaws]

My Lords—

[Lord Morris of Aberavon]

My Lords—

[The Chancellor of the Duchy of Lancaster (Lord Strathclyde)]

My Lords, we have hardly started. There is time for both noble Lords. Only one of us can be standing up at one time.

--- Later in debate ---

[Lord McNally]

I most certainly agree with the noble Baroness and I pay tribute to her contribution to making the Judicial Appointments Commission so valuable. I recently met the new chairman, Mr Christopher Stephens. As well as many other attributes, he is the son of a former Clerk of the Parliaments, which should reassure this House.

[Lord Morris of Aberavon]

My Lords, while giving every welcome to the much needed improvements in diversity over recent years, will the Minister ensure that, in the pursuit of these very proper and important aims, quality and merit will never be sacrificed by those who are responsible for appointments? Further, does the Minister agree that all these aims, including quality and merit, should apply to those who are responsible for the appointment of Queen’s Counsel as well?

[Lord McNally]

I hear what the noble and learned Lord said. I can only say that 30 years ago when I was in government in the Foreign Office, women advisers were a rarity at any meeting. Returning to government 30 years later, I quite often sit in meetings where the majority of my advisers are able and talented women. I wonder why the legal profession has not made the same progress in the past 30 years as has been made in public appointments. I suspect that, perhaps not intentionally, the idea of quality and suitability is embedded in the thought “people like us”.

Parliamentary Voting System and Constituencies Bill

Lord Morris of Aberavon Excerpts

Wednesday 9th February 2011 Lords Chamber

[Lord Touhig]

My Lords, I rise to support Amendment 25ZB in the names of my noble and learned friend Lord Falconer of Thoroton and my noble friend Lord Bach, and to speak to Amendment 30 in my name and that of my noble friend Lord Anderson of Swansea. I believe that they complement each other.

On 26 January we had an excellent debate on Wales. In particular, we were able to highlight the adverse impact that the Bill will have on Welsh representation in the House of Commons. That debate was conducted in the best traditions of your Lordships’ House. Powerful arguments were put for and against the question of whether Wales should have the statutory minimum of 35 Members of Parliament. That was introduced in the Parliamentary Constituencies Act 1986 and, unlike this Bill, it had all-party support.

I say at the outset that I do not intend to repeat the arguments I made on that occasion. My noble and learned friend Lord Falconer has pointed out that Wales will lose 25 per cent of its parliamentary representation if the Bill is not changed. Indeed, 20 per cent of the entire reduction for the whole United Kingdom will come from Wales if the Bill is not altered. On 26 January the Government were unmoved by the merits of the argument that we put to retain at least 35 Members of Parliament. Indeed, they would not even take time to reflect on the merits of the case that we put. Reluctantly, of course, I and many others therefore accept that there will be a reduction in the number of Welsh constituencies and Members of Parliament. However, I urge the Government to consider that in the first boundary review the reduction should be limited to 10 per cent. Amendment 25ZB would allow for that.

On 3 March the people of Wales will go to the polls to decide whether powers to enact primary legislation in designated areas such as health and education should be passed from the Parliament of the United Kingdom to the National Assembly for Wales. None of us knows for certain what the outcome of that referendum will be and for that reason I urge the Government to take these amendments seriously and to reflect on them. I believe it would make sense to pause and await the verdict of the people of Wales before deciding on such a drastic reduction in the number of parliamentary constituencies. Neither of the amendments before your Lordships prevents the Government from making further reductions in the number of Welsh parliamentary constituencies in the future. They simply allow the process to take place over a longer period of time. That would be the time to reflect and consider the implications of a yes vote in the referendum on our constitution. The amendments would give time to consider the impact of passing those primary powers from Parliament to the National Assembly and the impact that that would have on the work of the House of Commons and Members of Parliament.

Without taking much of your Lordships’ time in repeating the arguments that I made in the debate on 26 January, it is nevertheless right to point out that even if the referendum says yes to the transfer of powers, the asymmetrical devolution system that we have in the United Kingdom means that significant areas of legislative responsibility for Wales will still rest here in the Parliament of the United Kingdom. The devolution settlement in Wales is significantly different from that of Scotland and Northern Ireland. In particular, policing and criminal justice are not devolved in Wales and remain the responsibility of the United Kingdom Government and this Parliament. In addition to policing and criminal justice, huge areas of Welsh life will continue to be determined by decisions of the United Kingdom Government and this Parliament, including pensions, benefits, taxation, levels of public expenditure, macroeconomic policy, defence and foreign affairs. Our education system in Wales is very similar to that in England. Indeed, teachers pay and rations are decided on an England and Wales basis. Until the views of the Welsh people are known and new powers are transferred to the National Assembly, it is important that Wales is properly represented here in the United Kingdom Parliament.

My point is simple and is reflected in Amendment 30 in my name and that of my noble friend Lord Anderson of Swansea, which complements Amendments 25ZB. Until the constitutional settlement between Wales and the United Kingdom is resolved in the referendum and its impact examined, there should be no more than a reduction of 10 per cent of Welsh Members of Parliament at the appropriate boundary review. Neither amendment would prevent the Government and Parliament from looking again at the levels of Welsh representation in the other place.

This debate is doing what your Lordships' House does best: it is giving the Government an opportunity to reflect on the amendments before us and consider their merits. Amendments 25ZB and 30 would not thwart the will of the Government and the elected House. They allow time for sober reflection and to consider the constitutional impact and the impact that any transfer of powers from Parliament to the Assembly will have on the House of Commons. They would give the Government an opportunity to achieve an outcome that they have singularly failed to achieve so far with the Bill: the opportunity to gain all-party support, certainly for this part of the Bill.

Without consensus and all-party support, no constitutional change of this magnitude will stand the test of time. I hope that the Government will consider the merits of the case being put before your Lordships this evening and agree, at the very least, to accept Amendment 25ZB.

[Lord Morris of Aberavon]

I support the speech made by my noble and learned friend Lord Falconer of Thoroton. I also spoke on 26 January and I do not intend to rehearse again the points that I made then and others made even better. We are not against a reduction in seats, but it should take place over a longer period of time. It is utterly disproportionate that the seats in Wales are reduced in one go by 25 per cent. That is 20 per cent of the whole of the reduction in the United Kingdom. I support my noble and learned friend.

[Lord Morgan]

I add my support to both amendments because of the extreme unfairness and inequity with which Wales has been treated. I begin with a reflection of what the United Kingdom is. It is a very special kind of polity. It is not a federal state. It is a union state in which different nations are brought together and, through the mediation of all political parties over 100 years, a union state in which all the nations have equality. They do not seek separatism: they seek equality. Wales in this instance is being treated most unequally.

From time to time, I reflect on a famous Liberal, whose successors do not appear to be very close to his traditions—David Lloyd George. On one occasion, Lloyd George pointed out the sheer hypocrisy of a Tory Government before 1914 who claimed to be Unionists and yet somehow implied that the Irish nationalists were lesser members. He said that they were hypocrites: they were either equal members of the union or not. It seems to me that something of the same attitude is being shown towards Wales on this occasion: that Wales can somehow be dismissed in this casual way without debate as we have heard.

In the status of Wales in a union state, Parliament is absolutely crucial. The representation of Wales in numbers is crucial. We had an intervention by the noble Lord, Lord Crickhowell, who is not in his place at the moment, in which he pointed out the quality of people such as Aneurin Bevan, David Lloyd George and my noble and distinguished friend Lord Kinnock sitting behind me. That was an argument for saying that if you had a group of geniuses, Wales could be represented by 10 people or even one person. There is no limit. It is the kind of argument that the noble Lord himself applied when we were discussing the amendment about the threshold for the referendum. There seemed to be no minimum: if only 5 per cent of the electorate voted in a referendum that was absolutely fine. If 40 per cent voted that was fine. Any percentage was fine.

Wales has, as I said in a previous speech, created and won recognition for its status through its power in Parliament, not just the ability of people who have represented Wales in Parliament, but the fact that collectively they are able to make a major contribution and to fulfil the wider role that parliamentary representation can have.

There is a point about the Assembly. The Scottish Parliament has greater powers, as we heard from my noble friend Lord Touhig, than the Welsh Assembly. That has been taken into account in relation to the representation of Scotland in Westminster. We do not know what will happen in the Assembly. We are therefore just second-guessing what the result might be and the sensitive relationship between the Assembly and Parliament is therefore being put at risk. The potential way in which a lesser number of MPs and a greater number of Assembly Members might be able to collaborate is also being put at risk.

This is an unfair distortion of the political process. It is unfair on the Welsh people and on Wales as a nation. When we discussed this previously, the Minister produced an argument that I hope we will not hear from him this time. He said that because Wales is being organised by the same rules as other parts of the country, the unfairness would somehow be accepted by the people of Wales as simply a part of accepting the rules. That is rather like looking ahead to next Saturday when Wales play Scotland at Murrayfield. It is like saying that Wales will be playing by the same rules as Scotland; Wales will be the same pitch but will be playing three men short. That is therefore a fair way of looking at it.

Wales is manifestly been treated far more seriously and severely than any other part of the country. It is at variance with our history and particularly at variance with the history of the previous proponents of the views of the Liberal Democrats who are supposed to be heirs of that liberal tradition. This is treating Wales with contempt. It is putting the union at risk and is likely to cause enormous anguish and a feeling that the tradition to which all parties have contributed has been wantonly betrayed.

--- Later in debate ---

[Lord Wallace of Tankerness]

My Lords, we have had many debates on the size of the other place, and I think that we voted on it yesterday evening. Certainly, there have been many counterproposals to 600, but 600 is the number in the Bill. We have passed that point in our deliberations. It is what the other place agreed to, and it has not been defeated or changed by any debates or votes in your Lordships' House. With 600, I have not yet heard the argument why Wales should be treated preferably to other parts of the United Kingdom. It cannot be related to devolution because, if we did that, we would have to calibrate different parts of the United Kingdom depending on the different powers that respective Parliaments had.

[Lord Morris of Aberavon]

Will the Minister put on one side this dogmatic reliance upon simple arithmetic? Why, over decades, have our predecessors agreed that the magic figure of representation to meet the needs of Wales was 35? Is it not a recognition of the need of a small nation to have a voice? If a small nation is incorporated into a larger nation in a union, is there not a case for the voice of the smaller nation to be adequately represented, hence our predecessors’ magic figure of 35?