Criminal Justice and Courts Bill

Lord Pannick Excerpts

Monday 28th July 2014 Lords Chamber

[Lord Hart of Chilton (Lab)]

My Lords, I want to speak briefly. I was going to save myself until Report, but this afternoon I was provoked into speaking by the reference by the noble and learned Lord, Lord Woolf, to Andrew Congreve. Andrew Congreve is a partner of mine at Herbert Smith. We both went to the post office to get our TV licences when we heard that the fee was going to be increased. Andrew Congreve was provoked by the threat that his second TV licence was to be revoked by the BBC. That threat stirred him into action. He has not been very well recently. It is only to be applauded that he should be referred to this afternoon: he is now in the Law Reports and will appear in Hansard.

I wish to make a second point. The noble Lord, Lord Horam, referred to delay, as did the noble and learned Baroness, Lady Butler-Sloss. Steps are being taken at the moment to speed up the process of judicial review. Only six weeks are allowed now to bring the case—to make the application. That is a substantial cut to the period of time that was allowed before. The new planning courts, filled with judges who are experienced in this area, now sit to hear these cases. They come on very quickly. In my recent involvement, the six weeks application was made, the leave was granted quickly and the hearing took place a week ago. That was dealt with with enormous speed. If that is the process that is to be fulfilled in the future, a lot of the problems about delay will vanish.

[Lord Pannick (CB)]

My Lords, I apologise to the noble and learned Lord, Lord Woolf, for missing the opening minutes of his speech this afternoon—indeed, I apologise to all noble Lords—as I attempted unsuccessfully to break the world record for running here from the Supreme Court.

When proposals for amendment of judicial review are brought forward by the Government—who are, of course, the main defendant in such litigation—they require the most careful scrutiny to identify whether they are indeed in the public interest and whether there is any good reason for Parliament to intervene in an area that has previously—and rightly—been left to judicial discretion. Clause 64 seems to me to fail to meet those criteria.

I have three objections to Clause 64. First, it focuses on whether it is highly likely that the outcome for the applicant would not have been substantially different. I emphasise the words “for the applicant”. The clause fails to recognise that judicial review is not concerned just with the narrow interests of the applicant. Judicial review serves the public interest, as the Committee has heard, by exposing systematic breaches of legal requirements by defendants. The court’s judgment—often a declaration—tells the Administration that what has been done is unlawful. Changes are then made; unlawful practices stop. Clause 64 will constitute a major impediment to that vital function of judicial review.

My second objection to Clause 64 is that a remedy may be appropriate in the interests of the individual claimant even in cases where the legal wrong may have made no difference. Last year, Lord Reed emphasised in the Supreme Court in a case concerning the Parole Board—the Osborn case of 2013, in volume three of the Weekly Law Reports, at page 1020, paragraphs 67 to 68—that the law requires public bodies to adopt a fair procedure to ensure not just that the right conclusion is reached on the merits of the individual case but that the subject of such a decision is not left with a sense of injustice that a wrong approach has been adopted in their case. Again, Clause 64 would prevent judicial reviews going forward for that purpose.

My third objection to Clause 64 is that it would require the court at the preliminary stage to conduct a detailed review of what would have happened had circumstances been different. That will of itself be time-consuming and expensive, and will inevitably promote satellite litigation. The noble Lord, Lord Horam, expressed concern about delay, and we are all concerned about speeding up legal procedures. Several steps have been taken; the noble Lord, Lord Hart, referred to them a moment ago.

It is important to say to the noble Lord, Lord Horam, that Clause 64 simply does not address the objective of speeding up procedures; nor will it achieve any such objective. One could have shorter time limits and arrange for speedier, expedited or shorter hearings—those are all processes that are being adopted. The Fordham inquiry for the Bingham Centre has made a number of valuable proposals.

Clause 64 simply does not address the topic; it is a blunt weapon, if removing delay is its objective. It is, for reasons that I have sought to explain, counterproductive, because it will lead to longer hearings at the leave stage and more appeals on the grounds of what would have been the result had a different approach been adopted.

Your Lordships have heard that Clause 64 has been criticised by the Joint Committee on Human Rights. Your Lordships’ Constitution Committee referred to the concern expressed by the senior judiciary during consultation that Clause 64 may well lead to unlawful administrative action going unremedied. The Constitution Committee therefore advised this Committee and the House to consider whether Clause 64 risks undermining the rule of law. I think that Clause 64 will impede the effective exercise of judicial review, and will do so for no good reason. I very much hope that the Government will think again before Report.

--- Later in debate ---

[Lord Faulks]

I think that is very much the same comment the noble Lord, Lord Beecham, made, although expressed in slightly different terms. As I will come on to explain, we suggest that the clause—if it is incorporated into the Act—would still give the judge discretion. We are simply making it clearer where the bar is placed.

At present the courts will find that there will be no difference where the end result was inevitably the same. Amendments 71B, 71C, 72B, 72C, 73C and 73D and the amendments consequential upon those would go further in adding additional requirements concerning the public interest and the overriding objective. Those additional requirements do not apply at present as the law is understood by the Government.

The current threshold is already extremely high. In the Government’s view, this means that judicial reviews can be grounded on technicalities which would in practice have made no difference to the end result, or, ultimately, the applicant. That is why it comes up so rarely, and that is why we wish to modify the current approach. In the Government’s view, scarce court resources would be better applied to cases in which a difference to the outcome is more likely. But I reassure noble Lords that, as drafted, what Clause 64 does not do is make the exercise of this power in any way routine. This is because the clause applies the standard of “highly likely”. This will remain a high threshold, and when there is any significant doubt that there could have been a difference for the applicant, the threshold will simply not be met.

Concerns have been raised that in applying this approach of diligence, the courts will be dragged into the forbidden ground of a merits-based review, where they insert themselves into the decision-maker’s shoes. I respectfully disagree with this. I am sure that the courts will continue with the established way in which judicial reviews progress; namely that they consider the process which led to, and not the merits of, the decision, the legality of the process being the essence of the challenge. They will perform this exercise even in the examples postulated by the noble Lords, Lord Beecham and Lord Davies. It is inevitable that they will have to look at the facts there and then on the basis of the information. What we are suggesting is that a very low bar is raised slightly higher, but the exercise will be performed at the same stage.

Furthermore, there is an additional reason why this exercise should not create real difficulties for judges. Judges often have to make decisions on the basis of information available to them which is not complete. For example, in a civil claim where, let us say, a claimant is suing for negligence, the defendant may argue that the claim should be struck out on the basis that it discloses no cause of action. There the claimant’s case may be taken at its highest, and the argument proceeds that even if the claimant is right, the claim is not sound in law and must therefore be struck out, to which the answer often given by claimants is, “Well, my Lord, you haven’t heard the evidence. If you hear the evidence and get a clearer view of the matter, then our slightly adventurous case may be seen in a better light”. Sometimes that argument is persuasive, but very often judges are able to take the view that the position is sufficiently clear for it to be uneconomic and unnecessary to hear the case. This is the task they perform.

Nor do I think that the “highly likely” test should be beyond the agility of our very distinguished judges performing in the High Court, as the noble Lord, Lord Elystan-Morgan, emphasised. It is not the balance of probabilities, but the “highly likely” test is something I feel confident that they will be able to apply.

Amendments 72E and 73A probe the scope of Clause 64 in practice following the recent report of the Joint Committee on Human Rights, to which the Government responded in July, over what types of flaw the clause will affect. In the Government’s view, the term “procedural defect” is too imprecise to be used in legislation. The grounds for judicial review are not defined in legislation; doing so in certain areas would be a significant step. “Procedural defect” has no accepted definition at present under case law, and it would be virtually impossible to arrive at one that would stand the test of time, given how judicial review evolves with each new decision. Furthermore, it would lead to the risk of satellite litigation, referred to by a number of noble Lords.

We have also heard concerns that the clause will cause administrators to act unlawfully, for sinister motives, safe in the knowledge that, if challenged, they will have a “get out of jail” card. No decision-maker is going to follow knowingly an unlawful process simply because they think that at some point in future they may be able to argue successfully that there would have been no difference to the outcome. This is particularly so, as I have already indicated to your Lordships’ House, because our reforms have maintained a very challenging threshold.

Lest it be thought that the Government have not listened and are ploughing on regardless of the views expressed by others, I say that the question of standing was one that was often considered controversial in the reform of judicial review, and the Government initially thought that there ought to be a real connection between the claim and the applicant. The applicant state is referred to by the noble Lord, Lord Pannick. I looked at the White Book as to the summary of the development of the sufficient interest test for standing, and it contained this comment:

“The courts have adopted an increasingly liberal approach to questions of standing over recent years”.

Quite so—but the advantage of having a fairly elastic rule on standing was acknowledged by the Government on the basis that sometimes it is important that these cases are brought forward. It is an indication that the Government are making appropriate responses to the concern that has been expressed.

Some have argued that this clause will add delay to the consideration of judicial reviews by potentially requiring fuller argument at the permission stage. That is in part, as I apprehend it, the basis for Amendments 72 and 73, which would remove the requirement for the High Court or Upper Tribunal to consider a no-difference argument when it is raised by the defendant in the response to the application for permission. The Government consider that it is entirely proper that, when a no-difference argument is made by a defendant, it should be considered by a court or tribunal. I accept that when this argument is raised it requires courts to look at the case and the issues with care, but they do that at the moment. I do not think that that would mean that judicial reviews would become overlong. On the argument being raised more often, I say that it should be put only by defendants sure or confident of their arguments and position; if made without a sound basis, I would expect the courts to look to costs, which would act as a sufficient deterrent. In due course, we will invite the Civil Procedure Rules Committee to create a process that allows for oral arguments on this question at permission. While it would be wrong of me to pre-empt that committee, I am sure that it will be done in a way that makes the procedure straightforward and cost effective.

Amendments 72 and 73 would also remove the duty on the court to refuse permission when satisfied that it is highly likely that in the absence of the flaw complained of the outcome would not have been substantially different for the applicant. Those are, effectively, wrecking amendments. The Government’s view is that in those situations permission should not be granted.

[Lord Pannick]

Could the Minister clarify the Government’s position on the point that I understood was raised by the noble and learned Lord, Lord Mackay of Clashfern? As I understood him, the Minister suggested that even under Clause 64 the court could allow a judicial review claim to go forward and could grant a declaration of illegality, even if the outcome of the administrative process would have been the same for the claimant because the outcome of the litigation would be different. It would be a declaration. I see him nodding. For my part, I understand Clause 64 to refer to outcome as meaning the outcome of the administrative process. However, if I am wrong, could the Minister say so?

Criminal Justice and Courts Bill

Lord Pannick Excerpts

Monday 14th July 2014 Lords Chamber

[Lord Pannick (CB)]

My Lords, I support everything that has been said by the noble Lord, Lord Lester of Herne Hill. I add simply one point. Amendment 7 would enact what was the practice prior to 1997, except of course that the review prior to that date was conducted by the Secretary of State and not by the independent Parole Board.

I am concerned that there is one reason and one reason only why this Government, and indeed their predecessor, removed the right to a review after 25 years and refuse to reinstate it. The reason is that, as a matter of law, such a review could not lawfully be undertaken by a Minister. The Strasbourg court has repeatedly stated that an independent person must make decisions on release. I would welcome the Minister’s comments on this, but I anticipate that the Secretary of State would be quite content for there to be a review by her or by her successors after 25 years but what she cannot accept is a review by an independent Parole Board. However, as the Strasbourg court has repeatedly stated—and it is surely right—decisions on release should be made by an independent person or body and not by a politician, however wise or experienced she may be.

[Lord Lloyd of Berwick (CB)]

My Lords, for the reasons that have already been given, I support the amendment and I do so all the more willingly because it is very similar to an amendment which I tabled two years ago when we were debating the LASPO Bill. A very significant difference between the two amendments is that I thought that the review should take place after 30 years rather than 25 years. My reason was that 30 years is one of the starting points for determining tariffs under Schedule 21. A defendant with a 30-year starting point and no mitigating or aggravating features would look forward to a review after 30 years but not before. It would not particularly make sense that a whole life prisoner should have a right of review after 25 years when one with a 30-year starting point would have to wait for 30 years, but that is a small detail.

The debate on my amendment took place on 9 February 2012, at col. 390. There were 12 speakers on that occasion. All, except the noble Lord, Lord McNally, supported the amendment. The only reason which the noble Lord gave for not supporting the amendment was that the public was not yet ready for it and, for that reason, the other place would not accept it and there was no point in it passing through this House. During my reply, he said that it would be easier to reach unanimity if we could arrange a joint meeting of both Houses. That is exactly what has now happened in the sense that we have the Joint Committee on Human Rights, which includes Members from the House of Commons and the House of Lords. So far as I know, there was no dissentient voice from any Member of the Commons. Perhaps we may put that objection on one side.

Until 2003, there was no doubt that exceptional progress in prison qualified a lifer serving a whole life tariff for a review after 25 years. Somehow, that right was overlooked when the 2003 Act was being pushed through Parliament. There was no evidence that I know of that the right of review after 25 years was causing resentment or was in any way unpopular with the public. Certainly, those serving these sentences had done nothing that I know of to forfeit the right which they then had. For my part, I cannot believe that anyone in government made a conscious decision to remove this right. It seems almost inconceivable that they would have done, but there we are. All we seek to do in this amendment is to restore to these prisoners a right which they have lost, so far as I am concerned, for no apparent reason.

There are other equally strong arguments to support the amendment. Prisoners serving tariffs of 20 or 30 years are entitled to a review after they have completed their tariffs. It gives them light at the end of the tunnel and provides them with a reason for making progress if they can. In those cases, the review is justified both on practical grounds and on humanitarian grounds. Will the Minister say why those reasons precisely do not apply to those serving whole life sentences? One might think that it should apply all the more so. It cannot be that they are being deprived of this right for some symbolic reason, but if that is the case I would be very glad to hear about it.

I could understand if the Minister said, like the noble Lord, Lord McNally, that this amendment would never be accepted at the other end of the corridor, but I would have no sympathy with him at all if he said that we should wait until the Supreme Court has decided the appeal in McLoughlin. The decision in Vinter is clear: a life prisoner is entitled to know at the start of his sentence what he has to do to qualify for a review after 25 years. It is equally clear that exceptional progress in prison would be a qualifying ground. But Section 30 of the 1997 Act provides that a prisoner can be released only on “compassionate grounds”. A prisoner who has earned his review by making exceptional progress is not being released on compassionate grounds in any ordinary sense of that term. Whatever the Supreme Court may say, we will need primary legislation to change the word “compassionate” or make clear what the word “compassionate” means. I would have thought that we would need a different word or an additional word. That will require primary legislation. I see no reason to wait until the Supreme Court has expressed a view. Indeed, if we had the primary legislation now, maybe there would be no need for a hearing at all. We should, in my view, grasp the nettle now. That is why I support the amendment.

Legal Systems: Rule of Law

Lord Pannick Excerpts

Thursday 10th July 2014 Lords Chamber

[Lord Pannick (CB)]

My Lords, it is a great pleasure to be part of a team of speakers with a forward line of three former Lords Chief Justice and two former Supreme Court justices that would win any legal World Cup.

This country is, as Shakespeare’s John of Gaunt says—it is still true—

“the envy of less happier lands”.

One of the reasons is our legal system, with its skilled and independent judges. There is a reason why Prime Ministers reach for a judge to investigate complex and sensitive public policy issues. They do so because judges and retired judges have a reputation for expertise, for integrity and for a determination to ensure that justice will be done—none more so than the noble and learned Baroness, Lady Butler-Sloss.

The legal system is important not just to the quality of our life but to our economic prosperity. The United Kingdom accounts for 7% of the global legal market. We are the leading global centre for the provision of international legal services. A paper issued by the Ministry for Justice in 2012 stated that the legal services sector in this country contributed £3.2 billion that year in exports, nearly three times more than a decade ago.

I declare an interest as a practising barrister. I make my modest contribution to that £3.2 billion in exports. In the past year, I have worn my wig and gown in the courts of Trinidad and Tobago, the British Virgin Islands, Bermuda and the Special Administrative Region of the People’s Republic of China—that is, Hong Kong. I have also travelled in the past 12 months to advise clients in Gibraltar, Zurich, Paris and Moscow. A number of my colleagues, either at the Bar or in solicitors’ firms, have more stamps in their passports.

We all find that, across all these geographical and cultural borders, the universal truth is that English law, English judges and English lawyers are regarded with enormous respect and admiration, none more so than the noble and learned Lord, Lord Woolf, who I thank for initiating this debate.

In applying the presumption of innocence, the principles of judicial review, the laws of contract and the protection of fundamental rights, the world still looks to London for guidance and legal services. Part of this is the historic residue of empire and the influence it commanded. In his epic account of the British Empire, Pax Britannica, James Morris tells how a hill tribe in India were involved in a dispute with their government about forest rights. Their elders were discovered sacrificing an animal to appease a distant but omnipotent deity:

“We know nothing of him”,

the elders announced,

“but that he is a good god, and that his name is the Judicial Committee of the Privy Council”.

Nowadays, the influence of London as a legal centre of excellence depends not on the chains of empire but on the quality of the product we produce. This influence and respect, hard won, are very easily lost.

I share the concerns that have already been expressed, particularly by the noble Lord, Lord Lester of Herne Hill, that the policies of the present Secretary of State for Justice, Chris Grayling, will damage the reputation, the influence and the financial success of our legal sector. If you undermine judicial review as an effective control on unlawful executive action, if you refuse to implement judgments of the European Court of Human Rights with which you disagree, if you reduce the scope of legal aid so that the most impoverished citizens of this country are denied effective access to the courts, and if you cut legal aid rates so that the brightest students—who are, of course, the judges and senior prosecutors of the future—cannot afford to work as barristers, and if in general you seek to administer our justice system on the cheapest basis possible, you will inevitably dilute its quality and pollute its reputation.

Criminal Justice and Courts Bill

Lord Pannick Excerpts

Monday 30th June 2014 Lords Chamber

[Lord Pannick (CB)]

My Lords, Part 4 of the Bill contains proposals that have the purpose, and will have the effect, of impeding judicial review in performing its essential role of ensuring that public authorities, including Ministers, act lawfully. In opening this debate, the Minister suggested that judicial review began in the 1970s. That uses as much poetic licence as Philip Larkin’s suggestion—the noble Lord recalls the quote—that,

“Sexual intercourse began

In nineteen sixty-three …

Between the end of the ‘Chatterley’ ban

And the Beatles’ first LP”.

Judges have, of course, been examining the legality of government action since the 17th century.

I have been in practice at the Bar since 1980, representing claimants and government departments in hundreds of judicial review applications. During that time, each and every Government have shown signs, perhaps understandably, of being irritated from time to time by the power of the judiciary to identify and remedy unlawful conduct. When they calmed down, however, Ministers recognised the value of what is central to the rule of law. They also had in mind a more pragmatic consideration—that they would not be in power indefinitely and they would wish their successors to be subject to the same proper constraints of the rule of law.

The current Secretary of State for Justice, Mr Grayling, is different. He has brought forward legislative proposals to control judicial review, and helpfully explained why he was doing so in an article, which I commend to all noble Lords, in the Daily Mail on 6 September 2013. This is what he said:

“The professional campaigners of Britain … hire teams of lawyers who have turned”,

judicial review “into a lucrative industry”. Judicial review, he said, is a promotional tool for countless left-wing campaigners and therefore needs to be reformed. It is a tribute to the sense of humour of the noble Lord, Lord Faulks, that in opening this debate he emphasised the need to avoid legislating by reference to newspaper headlines.

The Lord Chancellor repeated the thrust of his complaints when he spoke to your Lordships’ Constitution Committee in March. I am aware of no evidence whatever to support his basis for legislating, and, more importantly, nor is the judiciary which hears these cases five days a week. The response of the senior judiciary to the Ministry of Justice’s consultation last November was that the judges had seen no,

“evidence of inappropriate use of judicial review as a campaigning tool, and it is not the experience of the senior judiciary that this is a common problem”.

That is not to dispute that judicial review procedures can be improved. The Fordham inquiry for the Bingham Centre for the Rule of Law made some very sensible suggestions earlier this year. What is objectionable is the wish of the Lord Chancellor to restrict the means by which the exercise of powers by himself and other Ministers are subject to review for their legality by independent judges.

Clause 64 is the first objectionable provision. It provides that courts and tribunals must refuse to allow the judicial review application to proceed to a full hearing if the defendant shows that it is,

“highly likely that the outcome for the applicant would not have been substantially different”.

If the case does proceed to a full hearing, the court must refuse to give any remedy to the applicant if that same test is satisfied. That is objectionable on constitutional grounds. The clause instructs judges to ignore unlawful conduct, and to do so in a context where the Government themselves are the main defendant. It is also objectionable because it fails to understand that judicial review is concerned not just with the narrow interests of the individual claimant had the results been different. Judicial review serves a public interest by exposing systematic breaches by public authorities of legal requirements. One of the most powerful remedies available to the court is the declaration, about which the noble and learned Lord, Lord Woolf, wrote the leading textbook. It tells the Government and the world that what has been done is unlawful. Ministers and civil servants know that they must change their conduct for the future, and they do. This is not a question of preventing judicial reviews on “minor technicalities”, as the Minister suggested in his opening remarks. Clause 64 is also very unwise for practical reasons, because it will require the court, at the preliminary stage, to conduct a detailed review of what would have happened. That would be time-consuming and expensive, and it would promote satellite litigation.

My second concern is Clause 67, which addresses the costs of interveners in judicial review proceedings. The Minister helpfully indicated that the Government may look favourably on amendments to the clause. Let me explain why that would be very wise. Very often in judicial review cases the court allows a person or body to intervene because it has knowledge or experience that may assist the court in deciding the case. However, Clause 67 says that interveners may not receive their costs for doing so, other than in “exceptional circumstances”. More troublingly, it says that, unless there are exceptional circumstances, the intervener must pay any costs incurred by a party as a result of the intervention. That is wholly unnecessary. The current position is clear and fair: the court has a complete discretion over whether to allow an intervener to appear, whether to order a party to pay the intervener’s costs, or whether to order the intervener to pay the costs. I am unaware of any evidence produced by the Secretary of State, or, indeed, anyone else, to suggest that there is a problem here. In any event, the provisions in the Bill are manifestly unfair. They will deter public interest bodies, whether it is Liberty, the GMC or the UN High Commissioner for Refugees, from intervening. They will not intervene if they are at risk of paying the costs other than in exceptional circumstances. The courts derive considerable assistance from these public interest bodies, and it will be greatly to the detriment of our law if this clause is enacted.

The third matter that causes me concern is Clauses 68 to 70 on protective costs orders—PCOs. In a case that raises issues of public interest and importance, the court has a power, before the case is heard, to set the maximum figure for the costs that a claimant will be required to pay should their claim not succeed. The object of a PCO is to ensure that a claimant who raises issues of public importance should not be deterred from bringing the claim by the risk of having to pay unquantified costs. At the moment, PCOs are a matter for the discretion of the court. The clauses will allow the grant of a PCO only when permission to bring a judicial review has already been granted, but the risks of having to pay the costs of a contested hearing for permission will deter these claims from being brought. That, I am afraid, is precisely the aim of the Secretary of State.

I suggest that it is also objectionable that Clause 69 would give the Secretary of State the power to decide what are “public interest” cases for these purposes and to define the factors which a court should take into account. These are simply not matters for a Minister by subordinate legislation—a Minister who is one of the potential defendants in the cases that he wants to regulate. Again, I have seen no evidence to suggest that the current exercise of these powers has caused any problems whatever, other than, of course, the general problem that government departments would rather not be the subject of a judicial review application at all.

Finally, I am puzzled by Clauses 65 and 66. Clause 65 requires the provision of information about financial resources in judicial review cases, and Clause 66 will regulate the use of information about financial resources on the assessment of costs in judicial reviews. But why single out judicial review for such provisions unlike any other form of civil litigation, and where is the evidence of any current difficulty?

All these clauses are designed to impede the effective exercise of judicial review, and, if enacted, that is precisely the effect that they will have. They all arise from a failure to understand, and indeed a complete lack of appreciation for, the very concept of judicial review as a means of holding government departments and other public bodies to account as to their legality in public before an independent judge. The judiciary has made it very clear in consultation that there is no practical need for these clauses and the Government have produced no evidence to justify them. The clauses have been criticised powerfully by the Joint Committee on Human Rights. The Government, as the main defendant in judicial review cases, are seeking to legislate in their own interests contrary to the public interest and contrary to the rule of law.

I will be putting down amendments to these clauses in Committee. I know that the concerns that I have expressed are shared around this House and outside it. I hope that the Minister and the Secretary of State are prepared for the detailed scrutiny which Part 4 requires and which it will undoubtedly receive.

Civil Legal Aid (Remuneration) (Amendment) (No. 3) Regulations 2014

Lord Pannick Excerpts

Wednesday 7th May 2014 Lords Chamber

Moved by

[Lord Pannick]

That this House regrets that the Civil Legal Aid (Remuneration) (Amendment) (No. 3) Regulations 2014 make the duty of the Lord Chancellor to provide legal aid in judicial review cases dependent on the court granting permission to proceed (SI 2014/ 607).

Relevant document: 37th Report from the Secondary Legislation Scrutiny Committee

[Lord Pannick (CB)]

My Lords, over the past 40 years politicians of all Governments have complained when they lost judicial reviews. However, when they calmed down they recognised that the principles created by the courts in this area of the law are,

“fundamental features of a constitutional democracy”.

I quote from De Smith’s Judicial Review, edited by the noble and learned Lord, Lord Woolf, Professor Jowell, and others. Lord Chancellors of the stature of the noble and learned Lords, Lord Mackay of Clashfern and Lord Irvine of Lairg, saw it as part of their responsibility to remind their ministerial colleagues of the importance and the political neutrality of judicial review. They understood that Ministers may be irritated by these cases while in government, but they welcome such controls when they lose power and move into opposition. The Lord Chancellor in this Administration, Chris Grayling, is by contrast a politician with a short-term mission. He wrote in the Telegraph last month that he is determined to prevent,

“judicial reviews, instigated by pressure groups, designed to force the Government to change its mind over properly taken decisions by democratically elected politicians”.

The legal aid regulations we are debating tonight are one example of many where the changes which this Lord Chancellor is imposing are far more damaging than any disease which they purport to treat. Legal aid is paid to a claimant’s lawyers only if the claimant satisfies a means test and shows that the claim has legal merit. Judicial review, unlike almost all other forms of legal proceedings, can be commenced only with the permission of a judge. These new regulations, which came into force on 22 April, make the following change. The Lord Chancellor must not pay legal aid fees unless the court gives permission to bring judicial review proceedings or, if the court neither refuses nor grants permission, the Lord Chancellor thinks it reasonable to pay legal aid remuneration.

The problem is that often the court does not grant permission to bring a judicial review for reasons other than the weakness of the claim. The filing of a judicial review claim concentrates the mind of the public authority, which often responds to the bringing of the claim by reviewing the impugned decision and by giving the litigant what he or she seeks: namely, recognition that an error was made or fresh consideration of the matter. Therefore, by the time the judge looks at the application, it is unnecessary, and may be inappropriate, for the case to continue.

These regulations wrongly assume that cases in which permission to bring judicial review is not granted are unmeritorious. Often the opposite is true. It is precisely because a claim has substantial merit that the public authority speedily addresses the grievance. The problem is that, if lawyers know that they have no right to be paid in such cases, even at the low—scandalously low—rates currently thought acceptable by the Lord Chancellor, the inevitable result will be that clients with a strong claim will find it much more difficult to find competent representation. Nor is it any solace that the Lord Chancellor has discretion to make a payment; that applies only if the judicial review application is not dismissed and some of these applications will be dismissed because the case is now moot. In any event, nobody can proceed on the basis of a hope that the Lord Chancellor, in his discretion, may choose to make a payment. We have all seen recently that the discretionary “exceptional circumstances” category of funding for legal aid applies in theory but rarely, if ever, in practice.

--- Later in debate ---

[Lord Faulks]

I hope I have made it clear that I would take back the observations that were made during the course of the debate. I will, of course, add to that the comments made by my noble friend just now.

[Lord Pannick]

My Lords, the poor quality of these regulations has provoked a debate of the highest quality. I thank all noble Lords who have participated in identifying defects in these regulations. I also thank very sincerely the Minister, who has put the Government’s case without any support whatever from the Benches behind him. It is no reflection on the noble Lord’s very considerable powers of advocacy to say that the arguments he has advanced tonight in support of the Government’s position are, to use a phrase commended during the debate, wholly without merit.

The Minister emphasised that the Government are not abolishing judicial review. We must be thankful for small mercies. It is no defence to a charge of criminal damage for the defendant to say, “I have not committed a murder”. The Minister says—and who could disagree?—that hopeless cases should not be funded by judicial review. Of course they should not, but the Minister will appreciate that the thrust of this debate is that the test imposed by these regulations does not distinguish between hopeless and other cases, as would be the case if the judge were to have a power to determine for the purposes of legal aid whether the case is hopeless. I am pleased that the noble Lord has given a commitment to ask the Lord Chancellor to reflect on what has been said tonight. I hope that the Minister will be able privately to add his concerns to those expressed in the House.

I have one other point: your Lordships will have a proper opportunity in the next Session for detailed scrutiny of the Lord Chancellor’s attempts to neuter judicial review in the most regrettable proposals in the Criminal Justice and Courts Bill. I am confident that, as the noble Lord, Lord Cormack, said of these regulations in his powerful speech tonight, there will be in the next Session a coalition of Peers from all sides of the House who will express their concern about the Lord Chancellor’s proposals and, I hope and expect, in relation to that Bill will demonstrate their commitment to the rule of law in the Division Lobbies. Like so many of your Lordships and so many outside this House, I regret these regulations. I beg leave to withdraw the Motion.

Motion withdrawn.

Anti-social Behaviour, Crime and Policing Bill

Lord Pannick Excerpts

Tuesday 11th March 2014 Lords Chamber

Moved by

[Lord Pannick]

As an Amendment to Motion A, leave out from “House” to end and insert “do insist on its Amendment 112”

[Lord Pannick (CB)]

My Lords, on Report your Lordships’ House supported an amendment to include in this Bill the criteria for the payment of compensation for a miscarriage of justice based on the judgment of the noble and learned Lord, Lord Phillips of Worth Matravers, speaking for the majority of the Supreme Court in the Adams case. The noble and learned Lord, Lord Phillips, himself spoke in favour of my Amendment 112 on Report. He has asked me to express his regret that he is unable to be in his place today to support Motion A1 because he is abroad.

We are concerned today with cases where an applicant has been wrongly convicted of a criminal offence. In many of these cases, he or she spent years in prison before the Court of Appeal overturned that conviction. Compensation is not paid, and rightly so, simply because the judge made an error of law or there was some other technical basis for the successful appeal to the Court of Appeal. The applicant must show, on the test stated by the Supreme Court—the test approved by your Lordships’ House—that a new fact has emerged that so undermines the prosecution evidence that no conviction could possibly be based on it. That is a very difficult test to satisfy, and rightly so.

I continue to believe that the test of the noble and learned Lord, Lord Phillips, for the Supreme Court is preferable to the Government’s approach, approved by the other place, and that the amendment approved by the other place, with great respect to them, is wrong in principle and would have very damaging consequences. That was true of the original criteria set out in this Bill and rejected by your Lordships’ House on Report—the criteria that the applicant must prove beyond a reasonable doubt that he or she is innocent of the offence—and it remains true of the variation introduced by the Government in the other place, that the applicant must prove beyond a reasonable doubt that he or she did not commit the offence. The Minister has very fairly acknowledged in his opening remarks that there is no substantive difference between proof that you are innocent and proof that you did not commit the offence.

I will first seek to explain why I say that the Government’s approach will have very damaging consequences. The Minister has suggested today that the judgment of the Court of Appeal will be the only evidence which the Secretary of State needs to see in order to form a judgment on whether the applicant did or did not commit the offence. However, the Court of Appeal very rarely says whether it thinks that a defendant has proved that he or she did not commit the crime. That is not the role of the Court of Appeal. It focuses on whether a new or newly discovered fact fatally undermines the case that is presented by the prosecution. The test of the noble and learned Lord, Lord Phillips, is consistent with what the Court of Appeal does. It has never been the role of Ministers in our jurisdiction—rightly so—to pronounce on whether a person has committed a crime.

The cases in which compensation is claimed for a miscarriage of justice will often be the most controversial and sensitive. When an appeal has been allowed in the Court of Appeal on the basis that the prosecution case has been fatally undermined by a new or newly discovered fact, and when the defendant is then released from prison, often many years after their wrongful conviction, it is very unwise for legislation to state that it is then for the Secretary of State to pronounce on whether she thinks that the defendant has proved that they did not commit the crime. I can think of nothing more likely to keep open the sore of a regrettable miscarriage of justice, and nothing more likely to involve a politician in controversial matters of criminal responsibility.

The Minister suggested that the Government’s approach would promote certainty in the law. I have to say to him that, far from promoting certainty, the Government’s approach will inevitably be a recipe for complex, expensive and highly acrimonious litigation. The Minister said that there had been a few cases since the Adams judgment, which, he said, itself suggested that the Adams criteria were uncertain. However, as the Minister recognised, none of those cases has succeeded, and he well knows that members of our profession are quite capable of litigating any statutory definition. I therefore agree with the Government that the Bill should define the criteria for receipt of compensation for miscarriages of justice but I cannot agree that the Government’s wording, approved by the other place, is sensible in practice. It will have disastrous consequences.

Perhaps I may also say something about the issue of principle because the Minister emphasised this point in his opening remarks. He suggested that only those who are truly innocent should receive compensation for a miscarriage of justice. I say to him with the greatest of respect that that approach is wrong in principle. Our law does not ask people to prove that they did not commit a crime; it is for the state to prove that they did commit a crime. The noble and learned Lord, Lord Hope of Craighead, who I am pleased to see in his place, addressed this point with characteristic clarity at paragraph 97 in his judgment in the Adams case. He said that a person against whom there is no sufficient and admissible evidence on which a conviction can be based should not be the subject of the criminal process in the first place. Therefore, if a new or newly discovered fact fatally undermines the prosecution evidence, it is,

“right in principle that compensation should be payable”.

My noble and learned friend added at paragraph 102 that if the evidence against the defendant is conclusively shown to have been completely undermined, then there has been a miscarriage of justice which is as great whether or not the defendant committed the crime because in neither case should the defendant have been prosecuted.

--- Later in debate ---

[Lord Faulks]

My Lords, this has been an excellent debate once more, in which the House has shown its considerable knowledge, learning and experience of the issues raised by this amendment. Let me start by saying that there is general agreement on one thing: the Government were right to seek to enshrine in legislation the appropriate test for eligibility for compensation following a miscarriage of justice. The common law was undoubtedly in a state of confusion, notwithstanding the distinction of the judges engaged in the exercise of trying to provide a workable test. The decision in the Adams case, a resounding 5:4 victory, was described in a way that I could not possibly presume to describe it by the noble and learned Lord, Lord Brown, as an unprincipled fudge. It was, of course, a culmination of effort—an absolutely high-quality effort—to try to arrive at a workable definition. However, the noble Lord, Lord Pannick, says that the Government’s test will lead to disaster—to acrimonious litigation and uncertainty.

I have respectfully to disagree, because the Adams judgment has resulted in some 16 judicial review cases in the three years since the judgment. During the period from 2008 to 2011, when the case law laid down by the courts required, consistent with the Government’s position, that the applicant was clearly innocent, only two judicial reviews resulted from applications from those convicted in England and Wales. Therefore, there is likely to be acrimonious litigation. I am somewhat reluctant to be drawn on what the result would be in any particular cases, whether it is the Sally Clark case or other cases. The noble Lord, Lord Brennan, was, I think, referring to compensation under the ex gratia scheme, which was abolished by the Home Secretary in 2006. Here we are considering revisions of Section 133, which requires that the applicant has a conviction—whichever definition is adopted—and this will continue to be a requirement.

The difference of opinion on definition is simply what a claimant has to establish. It is said that the Court of Appeal Criminal Division is not primarily concerned in these cases with proving innocence—quite so. It may well decide that a conviction is unsafe, but in doing so, the Court of Appeal will, and does, provide cogent and comprehensive reasons for that decision. It does not simply declare it. That provides the basis on which the Secretary of State or those working under his direction will be able to make an assessment entirely in accordance with the very straight- forward and clear test that we suggest is appropriate.

The noble Lord, Lord Pannick, said that our law does not ask someone to prove their innocence. I agree entirely. Nor does this provision. It does not require an applicant to prove their innocence; it simply requires them to prove eligibility for compensation—money—when they are clearly innocent, to use the expression used in the common law or, as we describe it in statutory language, proof that they have not done it.

We ask the House to bear in mind that we have a position of uncertainty and litigation, which requires clarification by Parliament, as is agreed. Parliament has provided as clear a definition as can reasonably be arrived at, and one which we say is consistent with justice, does not offend the presumption of innocence and resolves the difficulties that judges have had in arriving at a workable conclusion.

The presumption of innocence is not in any way offended by the clause. I suggest to the House that it should agree that the House of Commons has considered carefully the high quality of the debate and the division of opinion among noble and learned Lords, and should respect and confirm the House of Commons decision.

[Lord Pannick]

My Lords, I am grateful to the Minister for the careful way in which he has addressed these matters and for the time and trouble that he has taken on this issue, not least in the helpful discussions that I have had with him over the past few months. My noble and learned friend Lord Brown of Eaton-under-Heywood spoke in favour of the Government's position. As he mentioned, he dissented in the Adams case. He did not approve of the test of the noble and learned Lord, Lord Phillips, in 2011 and he continues, as he is perfectly entitled to do, to dissent from the case made by the noble and learned Lord, Lord Phillips. The noble and learned Lord described the test of the noble and learned Lord, Lord Phillips, as a fudge. Some of us are quite partial to fudge, but I confine myself to reminding your Lordships of what was said in the Supreme Court in answer to the noble and learned Lord, Lord Brown, by the noble and learned Baroness, Lady Hale, in her judgment in the Adams case. She said:

“I do sympathise with Lord Brown’s palpable sense of outrage … But Lord Phillips’ approach is the more consistent with the fundamental principles upon which our criminal law has been based for centuries. Innocence as such is not a concept known to our criminal justice system. We distinguish between the guilty and the not guilty”.

A person does not have to prove their innocence in court, said the noble and learned Baroness, Lady Hale —I agree—and a person should not be required to prove their innocence when they apply for compensation after a miscarriage of justice has been established in the Court of Appeal.

As the noble and learned Lord, Lord Hope of Craighead, said this afternoon, the Government’s approach will inevitably mean that people who are in fact innocent will fail to obtain compensation for a wrongful conviction established in the Court of Appeal simply because they cannot prove—it is often very difficult and sometimes impossible to prove—that they did not commit the crime. The Minister said in his observations in reply that the Government’s test does not require an applicant to prove their innocence. That is precisely what the Government’s amendment does; that is precisely what is so objectionable.

I remain concerned not just about the principle; I remain very concerned about the practical consequences of the Government’s amendment. We are dealing here, as I said in opening, with the most sensitive, controversial cases in criminal law. The Court of Appeal will have allowed an appeal because the prosecution case has been fatally undermined. The defendant is released from prison. He or she may have been in prison for many years. Then, say the Government, the Secretary of State must pronounce on whether that applicant has proved that he or she did not in fact commit the crime.

Nothing is more likely to prolong the misery of the miscarriage of justice not just for the applicant but for the family of the victims of the crime, whoever committed it. Nothing is more likely to provoke further litigation. It has never been the role of a Secretary of State in our system of law to determine whether a person is innocent of an offence. I do not think that it is desirable that we should now make it the role of the Secretary of State to determine whether someone is innocent of an offence. I wish to test the opinion of the House.

Legal Aid

Lord Pannick Excerpts

Tuesday 11th February 2014 Lords Chamber

[Lord Pannick (CB)]

My Lords, the noble Lord said that Section 10 is working effectively. Will he give further consideration to the recommendation of the Low commission, chaired by the noble Lord, Lord Low of Dalston, that the application process for Section 10 is much in need of simplification? Will the Government act on the concern expressed by the Joint Committee on Human Rights about the lack of training for Legal Aid Agency employees who are responsible for making decisions about Section 10?

[Lord Faulks]

The Government are aware of the JCHR’s concern about the lack of training. I have been reassured that the employees are appropriately trained and aware of their responsibilities. In terms of the forms, I give the same answer that I gave before, which is that the matter is kept under review. It is believed that the forms are perfectly within the capabilities of solicitors to understand. If one of these forms is inadequately filled in, you are told, whereas with some forms in other contexts you never know which box you failed to tick.

Criminal Legal Aid (General) (Amendment) Regulations 2013

Lord Pannick Excerpts

Wednesday 29th January 2014 Lords Chamber

Moved by

[Lord Pannick]

That this House regrets that the Criminal Legal Aid (General) (Amendment) Regulations 2013 restrict the availability of legal aid, advice and assistance in prison law cases (SI 2013/2790).

[Lord Pannick (CB)]

My Lords, another week, another set of legal aid regulations to regret. These regulations will severely limit the availability of legal aid advice and assistance in prison law. I shall mention four examples of issues for which legal aid advice and assistance will no longer be available by reason of these regulations. The first is Parole Board proceedings for indeterminate sentence prisoners—ISPs—where the Secretary of State refers the case before the expiry of the minimum term for advice on a move for the prisoner to open conditions, and also where an ISP is removed from open conditions and the Minister seeks advice from the Parole Board on a return to an open prison. This will no longer be covered. The Parole Board itself said in its written evidence to an inquiry on this subject by the Joint Committee on Human Rights that because most prisoners require a period in open conditions before the Parole Board can be satisfied that they are safe to release:

“There is in consequence, a great deal at stake for prisoners at these reviews”.

The need for high standards to be applied at such hearings, in the interests of the prisoner and in the public interest, is obvious, and because of the impossibility of prisoners representing themselves effectively at such hearings and problems such as how to manage a prisoner cross-examining a professional witness giving evidence about the prisoner’s conduct in prison, the Parole Board told the Joint Committee in its written evidence that it believed the proposal to remove legal aid,

“is very likely to impede our attempts to deal with cases fairly, promptly and effectively”.

It is very surprising that the Secretary of State should have proceeded with the changes despite the concerns expressed by the Parole Board.

The second example of decisions which will be excluded from legal aid is decisions to place or keep a prisoner in Category A—that is, prisoners assessed to be a high security risk—which of course affects prison conditions. A third excluded category is the allocation of places in mother and baby units. Vulnerable women will be denied access to legal advice on whether they should be separated from their babies. A fourth example is decisions on removal from association—that is, segregation decisions. One could give many more examples.

What are the justifications offered by the Secretary of State for denying legal advice and assistance in such important matters, even if all other eligibility criteria are satisfied? The main answer given by Mr Grayling, the Secretary of State for Justice, in his oral evidence to the House of Commons Justice Select Committee on 3 July 2013 is that the difference between him and his critics was “ideological”—his word. Indeed, he used that word three times in as many minutes in response to questions on this matter. The report of the evidence is published as HC 91. Mr Grayling told the Justice Committee:

“I do not believe that prisoners in jail should have the right to access legal aid to debate which prison they are put in”.

He went on to say that they should not have the right to legal aid to raise other questions about their treatment, with limited exceptions.

This is to reverse 35 years of progress in the approach adopted by the legal system to the treatment of prisoners. The modern era of prison law began in 1978 when the Court of Appeal required fair disciplinary proceedings for those alleged to be involved in the Hull prison riots. Since that decision, our courts have repeatedly made it clear that administrative decisions in prison must comply with basic standards of legality, procedural fairness and rationality.

The application of legal standards to decision-making within prisons has immeasurably improved the quality of those decisions and ensured greater transparency and accountability. No one, with the possible exception of the Secretary of State for Justice, could doubt the public benefits in enabling prisoners to hold prison authorities to basic standards of legality and fairness or the indispensable contribution which has been made in this respect by legal aid. That a Secretary of State, and indeed a Secretary of State for Justice, should now, for so-called ideological reasons, wish to reverse such developments is very much a matter for regret.

Mr Grayling’s second point is that legal aid is not needed because the internal prison complaints system and the Prisons and Probation Ombudsman will provide redress where appropriate. Without legal assistance a prisoner is simply not going to be able to make his or her points effectively and speedily by reference to the applicable legal requirements. Unhappily, many prisoners lack basic skills of literacy or suffer from other problems which impede their ability to present an effective grievance. Her Majesty’s Chief Inspector of Prisons, Mr Nick Hardwick CBE, echoed these concerns in his evidence to the Joint Committee on Human Rights, as recorded in paragraph 174 of the Committee’s seventh report.

As the Law Society has pointed out in its helpful briefing on this Motion, at present many complaints are simply, effectively and speedily resolved by a solicitor’s letter setting out the legal position to the person taking the decision. The Prisons and Probation Ombudsman can only make recommendations and provides a much slower method of seeking redress than a solicitor’s letter. The ombudsman, Mr Nigel Newcomen CBE, told the Joint Committee on Human Rights that he was concerned about the Government’s proposals, in particular because his office was unable to cope with the expected increase in workload.

These regulations will not even save public money. The cost of maintaining legal aid in ISP cases before the Parole Board, for example, is minimal, and the cost of ISPs remaining unjustifiably in closed conditions when they could safely be allowed to move to open conditions is high. The Howard League for Penal Reform has pointed out that the Ministry of Justice has put the cost of dealing with each complaint to the ombudsman at £830, which is more than three times the £220 fixed fee for a solicitor doing this work under the legal aid arrangements.

In the Supreme Court last April, in the case of Osborn v the Parole Board, reported in volume 3 of the 2013 Weekly Law Reports page 1020, paragraph 72, Lord Reed stated for the court that,

“procedures which involve an immediate cost but contribute to better decision-making are in reality less costly than they may appear”.

I suggest that the Minister conveys the suggestion to the Secretary of State for Justice that the words of wisdom of Lord Reed should be displayed on Mr Grayling’s desk in very large letters.

These regulations will do enormous damage to the rule of law in prisons and there is no justification for them. I beg to move.

[Baroness Kennedy of The Shaws (Lab)]

My Lords, I echo everything that has been said by the noble Lord, Lord Pannick. I, too, regret that the Government are taking this course and regret profoundly what was said by the Secretary of State for Justice, Mr Grayling, in describing the differences between those who supported the maintenance of legal aid and those who were agin it. It is as though it is not enough to go to prison and lose your liberty, and experience the deprivations that we know imprisonment means, so we are looking for other ways to punish.

I will speak specifically about women. As we in this House all know, women in prison are very largely those who have experienced abuse or domestic violence. They are often in prison because of serious social problems, they have mental health problems, and often have problems of addiction. The panoply of problems that they have do not make them people who will be well able to represent themselves in trying to get their rights in prison.

I will mention the issue of mother and baby units. In the past I have been involved in such cases, where a woman seeks to prepare for an application to have her baby remain with her, and has to secure supportive evidence, expert reports, and so on. It is impossible for a woman to do that without the help of a solicitor. Representations have to be made in relation to any refusal to offer a woman a place in a mother and baby unit, and I can assure noble Lords that that is sometimes done—and not done—for the best of reasons.

Women sometimes make applications for temporary release when something disastrous is happening at home with other children; they seek a temporary licence so that they can spend time at home. Many female prisoners are their children’s primary carer. We know that 55% of women in prison have a child under 16 and wish to make use of that release on temporary licence when they have emergencies at home. I know from experience that the application of the release on temporary licence policy is frequently misapplied by prisons, and women who are eligible are incorrectly refused. Legal help is vital to them for making their application, making representations, drawing on supportive evidence, and so on, but it is no longer available.

Disabled prisoners often have real problems about the suitability of their accommodation or other services they need, and need legal help to acquire them. Mentally ill prisoners do not get legal help to deal with many of the attendant matters that go along with convincing the authorities of the seriousness of their problems, whether that is on the depressive scale or as regards behaviours that clearly show disturbance, but which often bring them into dispute with the authorities in the prison. There are often arguments about the capacity of such women. They present with difficult and challenging behaviour which is often met with a strong disciplinary response from the prison so that they are awarded extra days as punishments, when in fact mental health is the problem. As extended prisoners, women often have the date of release set further and further away because of their behaviour, but that behaviour is due to their mental ill health.

In those sorts of cases you need to have the representation of someone who is legally qualified to help take the appropriate course and find the appropriate expertise to support applications. The Government’s response is that prisoners should use the internal complaints procedures—the noble Lord, Lord Pannick, described the inadequacy of that. The process of appealing to the ombudsman is often slow and does not give the remedy that is sought. Add to all that the poor educational attainment of most women in prison and the situation is hopeless.

Before this debate a Member of this House said to me, “Are you speaking in the legal aid debate?”, to which I replied, “Yes”. He said, “You know it’s hopeless”. My response to that was that it may be hopeless, but I hope that by having this debate some members of the Government will feel shame. I am speaking of the most vulnerable today. I hope that a feeling of shame will enter into discussions among the Government and between the coalition partners about the impact of this on the lives of some of the most fragile people in our society.

--- Later in debate ---

[Lord Faulks]

I cannot I am afraid give an exact date for that, but I shall take back the noble Lord’s concern and I will write to him when I have information. Of course, it is a matter that will be taken very seriously at the Ministry of Justice.

[Lord Pannick]

My Lords, I am grateful to the Minister for doing his best to defend this sorry set of regulations. The Government are very fortunate indeed to have his services on the Front Bench. I am grateful to all noble Lords who have spoken in this debate and who have explained with clarity and force why the regulations are wrong in principle and damaging in their consequences.

The Minister may have noticed the embarrassing lack of support for these regulations on the Benches behind him, and indeed anywhere in this House tonight. Before the Minister’s speech, your Lordships heard 15 speeches—I have been counting—all of them regretting these regulations and all highly critical of them and of the purported justifications for them. Noble Lords who have spoken tonight have reflected the widespread concern about the regulations that exists outside this House.

The Minister’s main argument, that the internal complaints system and the ombudsman system are an effective substitute for legal assistance and advice, is simply contrary to the advice of the Parole Board, the inspector of prisons and the ombudsman. It is contrary to court judgments over the years. It is contrary to the experience of all those who have spoken tonight, apart from the Minister. Indeed, it is irrational, given the lack of literacy, the youth, the immaturity and the mental health difficulties of so many prisoners, let alone their obvious inability to identify and present the issues that arise in their cases.

I ask the Minister to send a copy of today’s Hansard to the Secretary of State tomorrow morning, to ask the Secretary of State to reflect on the nature and strength of the concerns that have been expressed tonight from the broad experience and expertise that so characterise this place, to draw the Secretary of State’s attention to the absence of any support for these regulations outside his own ministry and to ask the Secretary of State to think again about this important matter. I beg leave to withdraw the Motion in my name.

Motion withdrawn.

Anti-social Behaviour, Crime and Policing Bill

Lord Pannick Excerpts

Wednesday 22nd January 2014 Lords Chamber

Moved by

[Lord Pannick]

94E: Clause 161, page 128, line 5, leave out from “shows” to “(and” in line 6 and insert “conclusively that the evidence against the person at trial is so undermined that no conviction could possibly be based on it”

[Lord Pannick (CB)]

My Lords, Amendment 94E addresses a genuinely difficult problem—that is, the proper test that should be applied to determine whether a person should receive compensation for a miscarriage of justice. Since this is Report, I should report that the debates in Committee demonstrated general agreement, which I share, that the Government are entirely correct to include in this Bill a statutory definition of those cases where compensation should be paid for a miscarriage of justice to secure greater certainty in this area of the law.

I should also report that the Committee stage debates established that there are strengths and weaknesses in each of the two options before the House. The approach adopted in Clause 161 is that compensation should be paid only if a new or newly discovered fact shows beyond reasonable doubt that the defendant was innocent of the offence of which he or she was convicted. The alternative option in my amendment is that compensation should be paid only if the new or newly discovered fact shows conclusively that the evidence against the defendant at trial,

“is so undermined that no conviction could possibly be based on it”.

The amendment has the considerable benefit of using the test which was formulated and applied by the noble and learned Lord, Lord Phillips of Worth Matravers—the then President of the Supreme Court, who I am very pleased to see in his place—at paragraph 55 of his judgment for the majority of the Supreme Court in the Adams case. That paragraph, on page 48 of the Supreme Court document, Decided Cases, states that the test, which is now in the amendment,

“will not guarantee that all those who are entitled to compensation are in fact innocent. It will, however, ensure that when innocent defendants are convicted on evidence which is subsequently discredited, they are not precluded from obtaining compensation because they cannot prove their innocence beyond reasonable doubt”.

I also draw attention to what was said in the same case—the Adams case—by the noble and learned Lord, Lord Hope of Craighead—who I am also very pleased to see in his place—in support of the test of the noble and learned Lord, Lord Phillips. At paragraph 97 of his judgment, the noble and learned Lord, Lord Hope, said that if a new or newly discovered fact shows conclusively that the prosecution evidence was so undermined that no conviction could possibly be based on it, then it is right in principle that compensation should be payable even though it is not possible to say that the defendant was clearly innocent. The noble and learned Lord pointed out that a person against whom there is no sufficient admissible evidence to secure a conviction should not be subject to the criminal process in the first place. Therefore, if a new or newly discovered fact fatally undermines the prosecution evidence, it is right in principle that compensation should be payable. These arguments, and others, persuaded the Joint Committee on Human Rights that Amendment 94E would be an appropriate amendment to the Bill.

A third noble and learned Lord, who I am also happy to see in his place—the noble and learned Lord, Lord Brown of Eaton-under-Heywood—dissented in the case of Adams with three of his colleagues in the Supreme Court. The noble and learned Lord, Lord Brown, was concerned that—I summarise his concern, no doubt wholly inadequately—the test applied by the noble and learned Lords, Lord Phillips and Lord Hope, would result in some defendants who were not in fact innocent receiving compensation. My concern with that approach —which is essentially the approach adopted in Clause 161—is that it has never been the role of Ministers or courts in our system of criminal jurisprudence to pronounce on the innocence of those accused of crime. If the state cannot prove guilt, the defendant is not guilty, irrespective of whether he or she is in fact innocent. Our law—the common law—applies a test memorably stated by the distinguished American advocate, Edward Bennett Williams.

He was asked whether Alger Hiss, who was imprisoned for espionage in a notorious case in 1950, was guilty. Mr Bennett Williams replied:

“He should have gotten off”.

I am very doubtful indeed of the wisdom of Clause 161 in requiring Ministers to pronounce on the innocence of people whose convictions have been overturned, especially when the court of criminal appeal, when quashing a conviction, makes no such statement.

--- Later in debate ---

[Lord Faulks]

I thank the noble Baroness for her question. I am reluctant to go into the particular facts of the Sally Clark case. Indeed, during the debate there have been somewhat different interpretations of that material. Of course, one hopes that if the evidence was available at the outset there would be no trial, no one would be charged, or at least a defendant would be acquitted.

This is a narrow but important provision where new facts have come to light. Of course, as the noble and learned Lord, Lord Brown, said, a number of defendants have their convictions overturned on appeal in time—this is out of time—who may have spent considerable periods in custody, unjustifiably as it turns out. This is a narrow area. The question of the presumption of innocence goes to whether or not they are guilty of an offence, but this, which I hope answers the noble Baroness’s question, is entirely concerned with eligibility for compensation—a different matter altogether. We, the Government, consider that the amendment—this is not in quite the same form as the amendment tabled in Committee—will provide, as is apparent from a number of cases before the courts, for further protracted and expensive litigation.

The noble Lord, Lord Pannick, accepted at the outset when moving the amendment that this was a difficult issue on which distinguished legal minds had expressed different views. Your Lordships have heard some of those distinguished legal minds and have expressed themselves in writing at considerable length. There is no easy answer to this question. Attempts have been made to formulate a test. A test was formulated by the noble Lord, Lord Beecham, and those supporting him in Committee. We have a slightly different test today. I do not decry the elegance of the amendment, nor the thinking behind it but I suggest that the Government’s proposal in the Bill has the advantage of clarity, simplicity, straightforwardness and it does not offend the presumption of innocence. In those circumstances I urge the noble Lord to withdraw his amendment.

[Lord Pannick]

My Lords, this has been an informed and interesting debate on what the Minister rightly describes as a very difficult question. I am grateful to all noble Lords who have spoken, particularly to the Minister for his conspicuously careful and fair analysis of the issues before the House.

However, the Minister’s eloquence cannot remedy the defects that we have been debating for more than an hour and a half in Clause 161. First, as the noble and learned Lord, Lord Phillips of Worth Matravers, said, when the Court of Appeal has quashed a conviction it is simply wrong in principle to require the defendant then also to establish beyond a reasonable doubt that he or she is innocent. This is incompatible with the presumption of innocence, as the noble and learned Lord, Lord Hope of Craighead, said this afternoon.

The noble Lord, Lord Elton, asked the Minister if there are any other contexts in the criminal law in which a defendant is required to prove his innocence. The Minister’s response was that Clause 161 does not offend against the presumption of innocence, but the answer to the noble Lord’s question is that there are no other contexts in our law in which a person is required to prove his or her innocence.

I understand the concern expressed by the noble and learned Lord, Lord Brown of Eaton-under-Heywood, which repeated—none the worse for that—the dissent that he gave in the Supreme Court in the Adams case. However, the answer to the noble and learned Lord was given in that case by the noble and learned Baroness, Lady Hale of Richmond, at paragraph 116. The noble and learned Baroness, who cannot be in her place today because she is a serving member of the Supreme Court, said:

“I do sympathise with Lord Brown’s palpable sense of outrage that Lord Phillips’ test”—

that, of course, is the test in the amendment—

“may result in a few people who are in fact guilty receiving compensation … I say ‘a few’ because the numbers seeking compensation are in any event very small. But Lord Phillips’ approach is the more consistent with the fundamental principles upon which our criminal law has been based for centuries. Innocence as such is not a concept known to our criminal justice system. We distinguish between the guilty and the not guilty”.

That is the answer to the noble and learned Lord, Lord Brown of Eaton-under-Heywood.

There is a second defect in Clause 161 to which, with respect, the Minister has no adequate answer. It would require the Secretary of State to decide on the innocence of defendants whose convictions have been quashed. To require the Secretary of State to perform that role when no court has done so would be to impose a complex and contentious role on Ministers in cases which are among the most sensitive.

[Lord Faulks]

When someone has had their convictions overturned, the Secretary of State would, as the noble Lord will realise, have the benefit of the Court of Appeal’s reasoned judgment to assist him.

[Lord Pannick]

As the noble Lord well understands, the Court of Appeal will not have pronounced on innocence. To require the Secretary of State to decide not only whether there has been a miscarriage of justice because of some new or newly discovered fact, but whether, in truth, the defendant is innocent, will inevitably lead to protracted litigation which will simply prolong the pain and suffering caused by the miscarriage of justice which led to the quashing of the conviction.

As King Lear said, “That way madness lies”. It is that way madness lies for the Secretary of State and for the defendants, although not of course for the lawyers who will benefit considerably from Clause 161. I cannot accept that the amendment is any less clear or any more likely to produce litigation than Clause 161. Amendment 94E raises an important issue of principle. It seeks to enact the test of the noble and learned Lord, Lord Phillips, for the Supreme Court in Adams. I wish to test the opinion of the House.

--- Later in debate ---

[Lord Faulks]

My Lords, in Committee, the noble Lord, Lord Pannick, tabled an amendment seeking to abolish the defence of marital coercion. The Government agreed to return with a view on that matter on Report and, accordingly, we have tabled these amendments.

As the noble Lord, Lord Pannick, explained in the earlier debate, it is currently a defence to all criminal offences other than treason and murder for a wife to show that she committed the offence in the presence of, and under the coercion of, her husband. The defence is an historical one. It was introduced in England and Wales by Section 47 of the Criminal Justice Act 1925, which abolished the previously existing presumption that a wife who committed any offence except treason or murder in the presence of her husband did so under his coercion and that she should therefore be acquitted. For these historical reasons, the defence applies only for the benefit of a woman married to a man.

Time has moved on. The circumstances in which the defence made sense no longer pertain. It is now an anachronism, and we accordingly agree that it can be consigned to history. I commend the noble Lord, Lord Pannick, for raising this issue and he can rightly take the credit for this overdue reform. I beg to move.

[Lord Pannick]

My Lords, I am very pleased that the Minister has responded so positively to the amendment which I tabled in Committee and thank him for it. As he said, prior to 1925, the law contained a presumption that a wife was coerced by her husband. The Minister said that time moves on, but Sir James Fitzjames Stephen, the great 19th century authority on criminal law, described this area of the law as “irrational”. In 1922, the Avory committee recommended abolition of any special rule for wives and so did the Law Commission in its 1977 report. Therefore, it could not sensibly be suggested that law reform in this context has in any way been rushed.

It was of course this area of the law to which Charles Dickens referred in Oliver Twist. When Mr Bumble is told that,

“the law supposes that your wife acts under your direction”,

he replies:

“If the law supposes that … the law is a ass—a idiot. If that’s the eye of the law, the law is a bachelor”.

I am delighted that this truly idiotic provision of English law is at long last to be abolished.

[Lord Beecham]

My Lords, I join in the welcome to the Government’s acceptance of the amendment of the noble Lord, Lord Pannick. It is nice to have a touch of harmony in these proceedings. I entirely support the abolition of what is clearly an archaic and now defective provision.

However, an issue perhaps needs to be addressed. We have now abandoned, rightly, the law of marital coercion, but there is a question about the operation of the law of duress. That of course applies only in limited cases where extreme violence or even death are threatened by one person against another; if that other then conforms with instructions given under such a threat, there may be a defence. Those would be very extreme circumstances, but there is some concern about the position of—usually but not necessarily exclusively—women in a situation of, for example, domestic violence and abuse of that kind. They might be prevailed upon to commit or assist in committing an offence by a threat obviously much less severe than is required by the law of duress. I wonder whether the Government might look at that, or invite the Law Commission to do so, to see whether there is a case for providing a safeguard for those who may be virtually compelled to take action without this rather archaic background.

In addition to or perhaps separately from that, perhaps some consideration might be given to those who have responsibility for deciding whether to charge or to proceed with the prosecution—or, following a prosecution, to impose sentencing—in situations where, as I say, without the extreme requirements of the present law of duress it is nevertheless apparent that pressure and threats of violence or worse have been brought to bear upon the weaker party in that situation. They might not be parties living together; one can envisage other circumstances. Perhaps that matter might be looked at. Having said that, we certainly support the amendment and are glad that this anomaly will be dealt with.

Costs in Criminal Cases (Legal Costs) (Exceptions) Regulations 2013

Lord Pannick Excerpts

Monday 20th January 2014 Lords Chamber

[Lord Pannick (CB)]

My Lords, I add my welcome to the noble Lord, Lord Faulks, to the government team. He brings to this role expert legal knowledge, very considerable practical experience, excellent judgment and a concern to promote the values of the legal system, qualities that have not noticeably been displayed over the past three and half years by those responsible for making decisions in the Ministry of Justice. I hope that the Secretary of State will listen to the noble Lord’s advice and take advantage of the expert legal advice and assistance that he will be providing—indeed will be providing, as I understand it, in the best traditions of the Bar, on a pro bono basis.

I am very grateful to the noble Lord, Lord Bach, for promoting this debate. I share his concerns about the exclusion of borderline cases from the scope of legal aid. The concern I have is that many of the leading cases in which the law has been developed in the public interest over the past few years have involved claims which, because of the disputed legal principles, could not have been said to have a 50% chance of success. The noble Lord, Lord Bach, mentioned examples of such legal aid cases, including one in which I acted for the claimants. That was the case of Debbie Purdy, which was the subject of the last judgment of the Appellate Committee of your Lordships’ House before the creation of the Supreme Court in 2009. This was a case in which judgments were delivered by two noble and learned Lords in their places today: the noble and learned Lords, Lord Brown of Eaton-under-Heywood and Lord Hope of Craighead,

The Appellate Committee held that that the DPP had a duty to publish guidelines about the circumstances in which he would prosecute for assisting a suicide. Those guidelines have made a valuable contribution to justice in a difficult area of the law. It could not have sensibly been said that the claim brought by Debbie Purdy was other than borderline. Legal aid was accordingly granted under the law at the time. When these regulations are implemented, as I think they now are, legal aid will simply be unavailable for such a case.

For legal aid to be able to fund such cases serves the public interest. The Minister told the House today that the removal of borderline cases from the scope of legal aid will save £1 million a year. Such a modest saving cannot begin to justify the damage that this change will do to the ability to develop the common law. The Minister’s other point was that taxpayers’ money should not be spent on cases that a private-paying citizen of reasonable means would not wish to pursue. The defect in that reasoning is that a private-paying citizen may well wish to pursue a case that has only a 30% or 40% chance of success if it raises an issue of enormous importance to them.

There is a further point in answer to this defence of this change. It is a point that was made by Richard Drabble QC in his excellent response to the consultation on this issue. He pointed out that when the Government respond to judicial reviews in cases such as that of Debbie Purdy they do not simply ask themselves whether they have a 50% chance of success and, if not, decline to be represented in the court proceedings; the Government very properly take account of the importance and complexity of the case and often fund a defence even though their legal advisers cannot say that there is a 50% chance of success. These are not the cases mentioned by the noble Lord, Lord Faulks, where further investigation may provide an answer; they are cases where it is inherent in the nature of the case that they are borderline and you cannot say that there is a 50% chance of success.

Why should the legal aid scheme adopt a different and narrower approach to legal aid for claimants than the Government adopt for themselves in deciding when and how to resist judicial review claims? The Government’s reasoning leaves entirely out of account the nature of the cases that will now be excluded from legal aid and the public interest in ensuring that the law is determined and applied only after proper legal argument on both sides. For these reasons, I very much regret these amendment regulations and I hope that the Minister, if he is unable to say so today, will be able to advise the Secretary of State that further thought needs to be given to this important matter.

[Lord Carlile of Berriew (LD)]

My Lords, I join the noble Lords, Lord Bach and Lord Pannick, on two grounds. The first is the generous but completely justified welcome that has been given to the arrival of my noble friend Lord Faulks on the government Front Bench. Indeed, I am encouraged that he has a record of questioning the reduction of legal aid, particularly in criminal cases. I urge him to do another piece of pro bono work, a tutorial for his ministerial colleague in another place, Mr Shailesh Vara, on understanding simple statistics and understanding something about legal aid.

The second ground on which I agree entirely with those who have already spoken is in my support of the regret Motion introduced very clearly by the noble Lord, Lord Bach, and illustrated with customary cogency by the noble Lord, Lord Pannick. However, I want to turn to the criminal regulation. I do not support a criminal regulation that means that somebody who has perfectly reasonably obtained the advice of a good solicitor and senior counsel can only, without exception, recover costs at legal aid rates if he wins the case. It may be best if I give a real illustration.

A retired butcher of about 70 years old was charged with some very serious sexual offences, including rape, against a young girl of about 12 years old who was the daughter or granddaughter of a neighbour. He instructed a good solicitor. The good solicitor said to him that he could instruct counsel on legal aid but his preference would be to instruct more senior counsel, leading counsel, but that would not be covered by legal aid. Not surprisingly, the 70 year-old retired butcher asked for advice as to his prospects if he took either part of the respective advice. He was advised by the solicitor, perfectly reasonably, that his best prospects were to have the more experienced counsel from the very beginning, so leading counsel was instructed.

As it turned out, in the event, there were a number of complex legal points and some factual issues. After the matter was dealt with with a good deal of care by the solicitor and leading counsel, the case went to the Crown Court where it was dropped at the courtroom door. One of the reasons why it was dropped was that it transpired that he could not have committed one of the most important offences alleged against him because he was out of the country at the time, an issue which involved very complicated inquiry, including issues of the admissibility of evidence obtained from abroad. Thus, he avoided a trial and a potential sentence of upward of 10 years’ imprisonment and he was able to return to his family and home. He had paid for the advice by borrowing money from his grown-up children and by mortgaging his home.

Before your Lordships think about six-figure sums for the fees involved, they were nothing like so high. It was well understood by the solicitor, who drove a hard bargain, and by counsel, who knew perfectly well that their fees were subject to assessment if they were too high, that reasonable fees would have to be charged, and they were. Total costs in the case amounted to a middling five-figure sum. He applied for his costs before the Crown Court judge, before whom the case was dropped—accepting an acquittal, by the way—and the judge thought it entirely reasonable that he had obtained the advice of leading counsel and a good solicitor and he was awarded his costs out of central funds. What is unreasonable or unjust about that? He acted on legal advice, what he did was perfectly reasonable, a good result was obtained and the costs of a trial were avoided, which would probably have been higher than what was paid out of central funds to the solicitor and leading counsel.

What is proposed in criminal cases now is that someone in that position will be able to recover at best only a half, probably a third, of those costs. The retired butcher, therefore, having been acquitted in a prosecution brought unjustly, would have been some tens of thousands out of pocket. Do we really want to countenance a criminal justice system like that? I do not.