Legal Aid, Sentencing and Punishment of Offenders Bill

Debate between Lord Newton of Braintree and Lord Howarth of Newport

Monday 5th March 2012 Lords Chamber

[Lord Newton of Braintree]

I am sorry, but I cannot quite make it. I shall try again later.

[Lord Howarth of Newport]

My Lords, we shall look forward very much to hearing the noble Lord, Lord Newton, in a moment.

This is major legislation to reform the legal aid system, and the least that the Government can do is to incorporate within this major legislation the affirmation of principle that the amendment in the name of the noble Lord, Lord Pannick, calls for. His formulation is a modest one by comparison to the formulation that the Constitution Committee of your Lordships' House recommended should be incorporated, which would have laid upon the Lord Chancellor an absolute duty to secure effective access to justice. At a time when our society is particularly stressed by the rigours of recession and reductions in spending on public services, as well as by what we on this side of the House take to be a very harsh prospective reduction in benefits, it is particularly important that the Government should do what they can to reassure members of our society that they are committed to justice. The affirmation of principle that is called for in this amendment is for that reason the more necessary. So I hope very much that the Minister, having listened to the powerful arguments deployed on all sides of the House, will concede that this is indeed the right thing to do.

[Lord Newton of Braintree]

My Lords, I apologise for my slowness. I start by saying that I am so far the only person who has spoken who is not a lawyer or bishop. I would claim with the right reverend Prelate to be a humble seeker after truth. I am not sure what I would claim with the lawyers. But I do know that I am racked with guilt about the noble Lord, Lord Pannick, because on the last occasion that he brought this up I indicated that I was not with him. Indeed, last week when he asked me whether I was going to vote on an amendment and I said that I was going to vote with the Government he wisely ignored my advice and voted against it, which is probably what I should have done anyway. However, I find myself now on Report much more inclined to support the noble Lord, both because of what he said today and because—dare I say to my noble friend on the Front Bench; I have already warned him that I may be a bit troublesome today, but he will have expected that—the more that I look at the provisions, the more I doubt that the Government are committed to the principle reflected in the amendment to which most of us would be committed.

I do not doubt that the coalition Government, whom I strongly support in general terms, including the Prime Minister and the Deputy Prime Minister, are committed to freedom, openness, transparency, justice and fairness. The coalition agreement is littered with the rhetoric of all those things and I think they meant it and still mean it, although I find it difficult to see the connection between some of the proposals in the Bill and those declarations, particularly about freedom and justice. The Minister referred jocularly at Question Time to the Ministry of Justice’s motto being, “We’re the Ministry of Justice, here to help”. Frankly, you might query that when you have looked at the provisions of the Bill. The noble Lord, Lord Pannick, also referred to the Justice Secretary’s broad declarations on this. I could make a lot of rather tendentious points particularly in the area of administrative justice, to which we will come later with an amendment on which my name stands, but there are enough questions in all this to make me wonder much more about supporting this amendment, subject to what my noble friend may say.

Legal Aid, Sentencing and Punishment of Offenders Bill

Debate between Lord Newton of Braintree and Lord Howarth of Newport

Monday 16th January 2012 Lords Chamber

[Lord Newton of Braintree]

My Lords, I rise in the hope of commanding your Lordships’ attention for two reasons. First, my name is on one of the amendments in this group in the name of my noble friend Lady Eaton. Secondly, since I was unable to be here last week, I want the Front Bench to know that I am back. I have listened with care to the speeches that have been made, and obviously I express my support in particular for the arguments on children’s clinical negligence which were raised by my noble friend Lady Eaton. I also want to say to my noble friends that when they come across an amendment with the names Newton and Tebbit on it, they are in trouble. I am sorry that my noble friend is evidently not able to be here today. We are friends but no one who knows us both will think that we always come from the same perspective. Here, we are united.

I need not repeat the points that have been made in debate, not least the very important points made by a number of my noble friends, including my noble friends Lord Faulks and Lord Carlile and—not to minimise any other speeches—the very constructive remarks just made by the noble Baroness, Lady Mallalieu. I share the view that this is one of those areas where it is highly likely not only that the game is not worth the candle but that the costs to other departments will be greater than any savings to the Ministry of Justice. That simply cannot be a sensible way to approach the problem of the deficit as a whole.

Without rehearsing all these arguments again, I hope that I am right in detecting in the air today a move away from what my noble friend Lord Carlile memorably described at an earlier stage as “irritated intransigence” from the other end of the building, and that we will get a constructive approach. We have certainly heard a lot of constructive speeches; I think that they deserve—if I may say so to my noble friends on the Front Bench—a constructive response. Leaving aside the Newton-Tebbit point, if I were them and looked at the totality of the names on the amendments in this group, I would decide, if I may coin a phrase, that concession was the better part of valour.

[Lord Howarth of Newport]

My Lords, the noble Lord, Lord Carlile, was right to draw attention to the unwillingness of members of the medical profession to admit fault. I have a son who was brain-damaged at birth. The evening after he was born, I spoke to the consultant gynaecologist, a very famous individual, who reassured me that that there was no reason to suppose that anything had gone wrong. But when the diagnosis of cerebral palsy was made, and my wife and I decided that we ought to pursue the possibility of a clinical negligence claim, we found—I am not sure that it is really surprising, though it is very shocking—that the file had gone missing, and it took a considerable time to obtain it. We know that clinical negligence claims take a very long time to pursue. Part of the reason for that is the intransigence of the system—it is very human; it is very understandable—and we have to be realistic about that.

In the interests of being realistic, I should like to pick up a point made by the noble Lord, Lord Phillips of Sudbury, à propos his Amendment 30A, in which he favours the appointment by the NHS Litigation Authority of a single expert witness who would produce a report. We can see the attractions of this in the interests of economy, but if there is mistrust between the claimant and defendant, as there so very often unfortunately is, I wonder how much confidence claimants will have in such reports commissioned by the defendant, the NHS Litigation Authority. That is particularly so if the expert witness appointed by the NHSLA finds that there was no negligence, which may indeed be correct, but can we expect the claimant to accept that that is so?

We all agree that it is unthinkable that legal remedy should not be available for victims of clinical negligence, but I believe, as do others far more authoritative than I, that this is a field in which legal aid must be retained. For example, if you are looking to solve part of the problem by disbursement-only ATE policies, it appears that they are simply not commercially viable. I am advised that, based on an ATE insurer’s real figures, for the average cover of £2,000 needed for preliminary investigations—which does not include the high investigation costs of cases such as catastrophic birth injuries—the premium would need to be of the order of £11,000. So it simply will not work. The noble and learned Lord, Lord Lloyd of Berwick, was right to put it to us that this, at minimum, is an area in which legal aid must be preserved.

If the Government’s proposal to remove ATE recoverability were to be accepted, there would be an increase in the number of unscreened cases, because ATE insurers are pretty risk averse and pretty sceptical. For very good business reasons they do not want to see unviable cases going through. They are therefore part of the mechanism, part of the system, that enables the bad cases, the weak cases, to be screened out. I understand the NHSLA shares that view.

Finally, I will quote to the Committee, if I may, a paragraph from a paper by the NHS Litigation Authority, which is impressive. Its view ought to carry weight with the Committee. It says:

“Ironically, whilst a so-called perceived ‘compensation culture’ (which does not actually exist currently when it comes to healthcare) is said to be one of the drivers for reform, the proposed changes will do more to promote the unsavoury aspects of a ‘compensation culture’ than deter them. For example relinquishing the degree of quality control afforded by the legal aid system for clinical negligence will throw the market open completely to non-specialist and less scrupulous solicitors and claims farmers. There would in all likelihood be an increase in this type of activity.”

That is powerful evidence that I am sure the Government have considered, but that the Committee also ought to consider.

Parliamentary Voting System and Constituencies Bill

Debate between Lord Newton of Braintree and Lord Howarth of Newport

Monday 7th February 2011 Lords Chamber

[Lord Howarth of Newport]

I agree entirely with my noble friend that these are further defects. PR condemns us to a perpetuity of coalition Governments and gives disproportionate power to third and lesser parties, as we have seen for many years with the Free Democratic Party in Germany. I would not wish to vote for it, but my point is that people should be allowed the opportunity to vote on all the serious choices that ought to be considered when we are contemplating the possibility of changing the electoral system. I am confident that first past the post would prevail and I would campaign for it, but it would be a salutary exercise in our democracy if we were to reconsider what our electoral system should be, with every reasonable option being available to the people.

I am surprised, therefore, that what Mr Clegg thought of as a “miserable little compromise” in offering the option of voting only for AV now appears to him to be a happy little compromise. I fear that he regards it as a stepping stone towards another referendum, which he hopes will not be long delayed, in which people, finding that they have been sold a pig in a poke with AV, decide that they do wish to move on to STV after all. In an earlier debate I quoted the Constitution Committee of your Lordships’ House, which deprecated the resort to referendums. Indeed, I think that to lead us from one referendum to the next because the first referendum offers an inadequate choice to the people that they quickly find unsatisfactory would be a thoroughly bad thing.

For these reasons, I support the amendment in the name of my noble friend Lord Campbell-Savours, and I hope that he will want to pursue it with all the vigour he can muster.

[Lord Newton of Braintree]

My Lords, I do not particularly want to follow the remarks of the noble Lord, Lord Howarth of Newport, not least in that I would not want to go down the partisan path he took in the middle of his speech, no doubt unintentionally. I do, however, want to find out exactly what is being asked because I found myself getting a bit open-mouthed at some of the things that the noble Lord, Lord Campbell-Savours, said. Do I understand that he wants a proposition that says, “Do you want change?”, to which in any normal circumstance, even if your wife says that you need a new dressing gown or pair of slippers, you ask what the alternative is? Then, when they ask you what the alternative is, you say, “We do not actually have an alternative. There are a dozen, 15 or 20 of them”. Once you have decided whether you want an alternative, the politicians will decide what alternative you want. I am bound to say that that totally lacks credibility, and I could not conceivably vote for it.

Parliamentary Voting System and Constituencies Bill

Debate between Lord Newton of Braintree and Lord Howarth of Newport

Monday 31st January 2011 Lords Chamber

[Lord Newton of Braintree]

My Lords, perhaps I may briefly intervene. I am too often tempted in these debates, but this will, on the McNally score, put him 4-2 ahead of me.

The noble Lord's speech was very interesting. In effect, he distinguished between whether efforts should be made to improve the registration system and the way in which that might be tied to a particular part of the Bill. That is exactly my position. I have no problem with trying to improve the registration system. However, there could be big questions of cost, not least arising from any prosecutions that may take place, for example of large numbers of 16 to 18 year-olds. That prospect appeared to lurk in what the noble Lord, Lord Bach, said. Those issues can be considered on their own merits. What would not be sensible—this is where, for once, I am on the side of my Front Bench—would be to tie those to a provision of a particular Bill as a condition before something comes into effect.

[Lord Howarth of Newport]

My Lords, we all accept that it is desirable in any case to improve electoral registration, but I take issue with the noble Lord, Lord Newton, in what he said in relation to the Bill. Happily and conveniently, the Committee accepted the amendment in the name of my noble friend Lord Rooker, and there is therefore flexibility on the date of the referendum on electoral change, and there is no technical problem standing in the way of acceptance of the amendment of my noble friend.

Whatever view we take about the desirability of the forthcoming referendum—I favour a referendum on the question of electoral change—or whatever view we take on whether or not it is desirable to switch from first past the post to the alternative vote, although I prefer to keep first past the post, we can all agree that we want full participation by the people of this country in the referendum. We want its result not only to be legally binding but to have moral force. It will not have moral force if it is mired by a low turnout among those who are already registered. It will have less moral force if, unfortunately, it is conducted on a register which is demonstrably incomplete and inaccurate.

If there is to be an important moment in the national life in consideration of a major constitutional change, we should expect the Electoral Commission to take every reasonable step to ensure that there is a high level of registration. It is then for the campaigning groups to do all they can to ensure that there is a high turnout. This can be done and it should be done. The decision taken by the people at the referendum will have a greater validity. It will be more convincing if it takes place on the basis of fuller registration.

It is timely to have a drive for improved registration because we know that local authorities will have fewer resources in years to come, and that in the next few months they will perhaps still have the resources to mount the drive to improve electoral registration. We also know that given the housing benefit changes that are due to come in, more people may be obliged to move home. We will see more people coming off existing electoral registers and perhaps not getting on to new electoral registers. Before we see the full unfortunate consequences of those benefit changes, we should have a drive to improve electoral registration. It would be particularly timely and appropriate for that to take place in the next few months, certainly to ensure that we have the most complete and accurate electoral register possible when the referendum takes place, and as an investment in the electoral register for future elections.

For all those reasons, I support the amendment of my noble friend Lord Bach.

--- Later in debate ---

[Lord Newton of Braintree]

It is clear that a significant effort is being made, and I would like to pay my own tribute to the leading figures on the Cross Benches, to resolve the impasse or to bring us back from the precipice, to use the phrase that was used by the noble and learned Lord, Lord Falconer. I share the hope that there will be a positive and constructive response to this.

The noble and learned Lord indicated that he recognised this was not necessarily perfect and that there was some more thought to be given to the issues, which I thought was a very helpful way for him to have put his remarks. So I say to my noble friend, who I suspect is in a constructive frame of mind—I share the hope that he is—that there is at least one person behind him who would strongly support such a constructive approach.

[Lord Howarth of Newport]

Those words spoken by the noble Lord, Lord Newton, himself a former Leader of the House of Commons, who always sought to calm troubled waters in that capacity and did so very successfully, should certainly be heeded. I add my appreciation for the noble Lord, Lord Williamson of Horton, and the Cross Benchers who, in tabling this amendment, as the noble Baroness, Lady D’Souza, did earlier in the day, have sought to steer our proceedings into calmer waters, recognising that in Part 2 there are some intensely controversial and very major constitutional issues that are not best resolved in a spirit of hot and angry political contest.

In any case, even if the mood of the Committee had been as placid and as genial in the previous 14 days as it has been today, it would still have taken time to consider properly and for us to be able to reach agreed conclusions that are in the interests of all our people and in the interest of sensible, constructive reform of the constitution, not animated by party political considerations but by real concern to reform and advance the constitution so that it better serves our people.

I very much welcome, therefore, what the noble Lord, Lord Williamson, has suggested. He offers a way in which we can resolve some of these very difficult and important issues in a calmer fashion and on a sensible timescale. I hope that the noble Lord the Leader of the House will respond in a similar spirit.

Parliamentary Voting System and Constituencies Bill

Debate between Lord Newton of Braintree and Lord Howarth of Newport

Monday 13th December 2010 Lords Chamber

[Lord Howarth of Newport]

My Lords, this amendment concerns the age at which one should be eligible to vote in the referendum. However, it is difficult, if not impossible, convincingly to separate out the arguments for allowing people to vote at 16 on the referendum and lowering the voting age for other elections. Indeed, in the speech in which she so ably moved this amendment, my noble friend Lady Hayter engaged with those wider considerations, as did my noble friends Lord Soley and Lady Kennedy of The Shaws.

My observation of young people’s views on what the voting age should be is a little at odds with the experience of my noble friend Lady Kennedy of The Shaws. Like many Members of Parliament, I used regularly to have meetings with sixth formers in my two former constituencies. They were very different constituencies situated in different parts of the country with very different socioeconomic make-ups. I expected my youthful constituents to be enthusiastic about lowering the voting age but I found that that was not commonly the case. I used to go to their schools to talk to them about the role of a Member of Parliament, the way Parliament works and broader constitutional issues, and very often the question of whether the voting age should be lowered came up. While my young constituents were well informed, sophisticated in their interest and in no sense apathetic about politics, Parliament and their future role as citizens, I was struck that commonly they did not think it was appropriate to lower the voting age. Many points of view and a range of arguments were put forward, but commonly they felt that it was not right to lower the voting age and that they were not ready for that. You can take a horse to water but you cannot necessarily make it drink.

We have noted at a series of elections that the lowest turnouts are among those entitled to vote for the first time, which worries us all. That should not necessarily be interpreted as disaffection from politics, but it is a matter of concern that those in the youngest age group eligible to vote are not conspicuously prone to exercise that right. If we lowered the voting age, I worry that that trend might intensify and become extended. Therefore, there is a case for caution. I would be interested to know whether my noble friend Lady Hayter thinks that my observation is correct and that there is not a great demand among young people for the right to vote at a younger age than 18, whether on a referendum or in other elections.

[Lord Newton of Braintree]

My Lords, since there has so far been silence from these Benches, I want to offer my noble friend on the Front Bench a modest bit of encouragement before he replies. I might frighten him by saying that I have some sympathy with the noble Baroness, Lady Hayter, in that I did not get my first vote until I was 22. I am not going to tell noble Lords how I cast it, except to say that it was consistent with my being a supporter of the coalition. I am more or less agnostic on whether the voting age should be reduced further, although I am bound to say that the noble Lords, Lord Anderson and Lord Howarth, have made some powerful points on the sceptical side.

The key point I want to make to my noble friend is that, whatever my view might turn out to be were we to have a properly considered and consulted-on proposal brought before us, I do not think that an amendment in your Lordships’ House to this Bill at this time would be an appropriate way to bring about a reduction in the voting age. So if my noble friend wishes to resist the amendment, whether in the terms forecast by the noble Lord, Lord Soley, or in any other, he will have my support.

Terrorism Act 2006 (Disapplication of Section 25) Order 2010

Debate between Lord Newton of Braintree and Lord Howarth of Newport

Monday 19th July 2010 Lords Chamber

[Lord Newton of Braintree]

My Lords, I am beginning to think that it is probably unwise for someone who is neither a lawyer nor a former senior policeman to engage in this debate, but those with longish memories may recall that from 2001 until about 2003 I chaired a group of privy counsellors looking at the Anti-terrorism, Crime and Security Act 2001, who produced a report that I am bound to say the then Home Secretary did not like at all, precisely because its drift was somewhat in line with some of the comments that have been made today and, I dare say, has been reasonably well justified by events during the intervening period. All that leads me to say that I, too, have been somewhat depressed—as, evidently, the noble Baroness, Lady Kennedy, and the noble Lord, Lord Pannick, have been—by the drift during the intervening period towards continued erosion of civil liberties.

I therefore take this opportunity to applaud the approach that my noble friend outlined on behalf of the Government. It might follow from that that I would be on the side, in this particular debate at this particular time, of the noble Lord, Lord Pannick, and the noble Baroness, Lady Kennedy. I am not, for a reason that lines me up with the noble Lord, Lord Condon. Against the background of the shift towards a more liberal approach in these matters that appears to be taking place, the Government and my noble friend deserve the chance to produce a properly thought-through change in a well crafted bit of legislation and to not get forced into some of the knee-jerk stuff that we have seen too many times in the past few years.

[Lord Howarth of Newport]

My Lords, I have a question and, although it may appear tangential, I hope your Lordships will feel that it is a question that I am justified in putting to the Minister. She spoke of the Government’s commitment to protecting our hard-won democratic liberties. Should that principle not be applied seamlessly and consistently across all areas of policy? If so, why are the Government not allowing the House of Commons the normal time to scrutinise the Academies Bill? I know it is not a Home Office responsibility, but there is collective responsibility across government as a whole. Parliament is where our democratic liberties are most importantly enshrined, and I would be grateful if the Minister would be willing, on behalf of the Government as a whole, to explain that.