Legal Aid, Sentencing and Punishment of Offenders Bill

Lord Pannick Excerpts

Tuesday 10th January 2012 Lords Chamber

[Lord Judd]

My Lords, I support the amendment. As my noble friend argued so well in his introduction, it deals with the central character of the Bill. Inevitably in our deliberations we concentrate a good deal on legal ramifications. However, they are in a sense a means to an end. Surely what matters and what we should really be concerned about is the quality of our society. What is fundamentally wrong with the Bill is that it reduces access to justice and puts the burden on those least able to afford such a reduction.

The Government talk a good deal about their desire for partnership with the voluntary sector. I hope that this is a genuine, creative endeavour and not a cynical one. What is as clear as it could be to any of us who have worked in the voluntary sector is that as a result of the Bill the costs that will land on the budgets of that sector will increase very considerably, and the workload of the sector will inevitably increase. Therefore, before we come to final conclusions on the legislation, it is essential that we understand the ramifications, costs, burdens and adverse impacts that legislation of this kind is likely to have. I am very glad that my noble friends on the Front Bench are making a major stand on this issue. They are right to do so.

I will deal with another small matter and say that I support the utterly practical and sensible amendment tabled by the noble Lord, Lord Martin of Springburn. It is absolute madness—I refer to the economic rationale of the Bill—for us to embark on legislation of this kind without a comprehensive, authoritative and extensive review of what the cost to the courts system will be. If as a result of Parts 1 and 2 there will be an increasing number of personal litigants without professional support, over the years the cost of the administration of justice will increase very considerably. We need this information before we can make an informed decision.

The amendments go to the essence of what deeply concerns many of us about the implications of the Bill. I hope that my Front Bench will pursue the issues as vigorously as they have raised them.

[Lord Pannick]

My Lords, I, too, support the amendment. The case for the Bill depends on two factual premises. The first is that the Bill will save large amounts of public money. The second is that it will not cause the damage to access to justice for vulnerable groups that is feared by critics because there will be other means of providing advice and information. Each premise is highly contentious and each depends on assertion rather than evidence. Therefore I find it very surprising that the Government conducted no serious analysis of the facts relating to the impact of the Bill on these two vital matters before bringing the legislation before Parliament. Since the work was not carried out before the Bill was presented, surely it is vital that an independent assessment is carried out before it is implemented and brought into effect.

As I understand it, there will in any event be a substantial period of time between Royal Assent for this Bill and the bringing into effect of its main provisions. The amendment will not in any way commit the Government to accept the contents of the independent report. The report will be information that will be before the House and the other place when a commencement order is brought forward, so I, too, support this amendment. I very much hope that the Minister will be able to give a more positive response to the concerns that have been expressed on this amendment, and will be expressed in relation to other amendments that we will be debating today, than he felt able to do on the first day in Committee on this Bill.

[Lord Howarth of Newport]

My Lords, my noble friend Lord Bach is quite right to table an amendment requiring that the Government make an impact assessment before the commencement of this legislation. The Lord Chancellor wrote an article in the Guardian on 20 December in which he said:

“Access to justice is a fundamental part of a properly functioning democracy … Those most in need must be helped where they face serious injustice”.

Those are fine professions of principle, but I do not think that Guardian readers should assume that all will therefore necessarily be well.

It is true that it is difficult to assess the impact of removing welfare cases from the scope of legal aid. The Government’s own impact assessment stated:

“Any significant change in case outcomes may be associated with social and economic costs if this leads to wider economic and social issues arising (for example, relating to health, housing, employment or offending). There may then be associated costs to the Ministry of Justice, other government departments or public bodies or to society as a whole”.

That somewhat tortuous prose perhaps betrays the embarrassment of the authors of that document. It acknowledges that there are indeed risks of the kind that we fear. However, it goes on to claim that there is not enough evidence to quantify or further examine those costs for any area of legal aid and therefore the implication is that the attempt should be abandoned.

I cannot accept that. It seems to me that where you have very real risks to the well-being of individuals and families as well as to access to justice, every effort should be made to continue to identify the hazards and the potential costs of the policy of taking welfare out of scope. If, indeed, it proves impossible to measure with any reasonable exactitude, and at the same time common sense tells us that the dangers of the policy are great, then surely the proper conclusion is to abandon the policy. Since I do not think that the Minister is going to tell the Committee at the end of this debate that he is going to abandon the policy, I think we must support this amendment.

My noble friend’s amendment prescribes the approach that should be taken by those who are making the impact assessment. He itemises categories of vulnerable people. He is right to focus our concern on particular groups of people so that it should be possible for the Government and the wider public to understand what the impact of this policy would be on particularly vulnerable groups at moments in their lives of exceptional vulnerability.

I have two concerns about my noble friend’s amendment. The categories that he has selected are not sufficiently comprehensive. Women, for example, are specified, very rightly, but what about men who find themselves dealing with bad employers, bad landlords or bad benefits decision-makers? Indeed, is there not a risk that my noble friend’s amendment might be discriminatory in this regard? Who does my noble friend mean by “young people”? We know that 22 per cent of 18 to 25 year-olds are facing terrible difficulties as they cannot find jobs in this economy. In contrast to the much more fortunate situation of the baby boomers—most of us—this generation has to seek work that, for many, is simply not there. If they flag in their search for work, they are liable to fall foul of the JSA regulations. If they do that, they may come to the view that there is not justice in this society. There are no jobs for them, no benefits for them, and no legal aid to ensure that they have redress where they may have a legitimate legal case. If that happens, they may lose respect for our society and its institutions. My noble friend is right to anticipate that the policy may indeed increase the risks of crime and anti-social behaviour.

My other concern about my noble friend’s amendment is that these categories overlap. I think we are all familiar with the remarks of the tribunal judge Robert Martin, the president of the Social Entitlement Chamber, who said in response to the Government’s consultation:

“The principal flaw in the Government’s approach is the reliance on thematic categories of law as proxies for determining who is in need. These categories only have a loose association with real lives and real problems”.

Disability, discrimination, unemployment, debt, relationship breakdown and ill health chase each other around and tangle with each other. In picking on particular categories of case where legal aid will cease to be in scope, the Government are attempting—unrealistically and dangerously—to unbundle the reality of people’s lives. My noble friend, constrained by the structure of the Government’s own legislation and policy, is driven in his amendment to do the same.

I think it was the noble Lord, Lord Newton, who said in an earlier debate that actually what is needed is a combined impact assessment. It is estimated that not less than 135,000 people will be affected by the withdrawal of welfare cases from the scope of legal aid, more than half of them disabled people. We need a really searching analysis to try to discover what the impact of the totality of these policies will be on the totality of their lives. However, the Government do not want to do that. The Green Paper stated:

“We consider that these issues”—

these are financial issues for people in poverty—

“are of lower objective importance … than, for example, fundamental issues concerning safety or liberty”.

Ministers are at risk of finding themselves in a philosophical quagmire if they attempt to specify what is of “lower objective importance”, but I do not really mind about that. Common sense and common sympathy tell us that extreme poverty means inability to provide basic needs, malnutrition and prejudice to physical and mental health. Is that not fundamental?

Whatever the objective justification, I believe that the policies are reckless, especially given the huge incidence of erroneous benefits assessments and of successful appeals against those assessments. For example, in the case of appeals against a refusal to award DLA, I understand that the success rate for people who are accompanied and supported at their hearing is 60 per cent. The error rate in benefits assessments is well nigh certain to rise with the transition to universal credit, employment and support allowance and personal independence payments. Especially the policies are reckless at a time of economic blizzard, when the Government’s response to the economic blizzard is draconian cuts, some four-fifths of which fall on the poor.

I cannot but feel that Ministry of Justice policymakers live in another world. The Green Paper told us, with an apparently straight face, that,

“the accessible, inquisitorial, and user-friendly nature of the tribunal means that appellants can generally present their case without assistance”.

We are reminded by Justice for All, a campaigning consortium of a large number of immensely respected voluntary organisations in our country, that the DWP issued 8,690 pages of advice to its decision-makers in 2009. It is not only the regulations that have to be understood but the case law.

Legal Aid, Sentencing and Punishment of Offenders Bill

Lord Pannick Excerpts

Tuesday 20th December 2011 Lords Chamber

Moved by

[Lord Pannick]

1: Clause 1, page 1, line 5, leave out subsection (1) and insert—
“( ) The Lord Chancellor must secure (within the resources made available and in accordance with this Part) that individuals have access to legal services that effectively meet their needs.”

[Lord Pannick]

My Lords, the amendment is in my name and those of the noble and learned Lord, Lord Woolf, and the noble Lords, Lord Faulks and Lord Hart of Chilton. It is an appropriate amendment with which to begin the Committee stage of this important Bill.

As the debate at Second Reading indicated, there is considerable concern about the contents of Part 1. There is widespread acceptance that in tough financial times legal aid must bear its share of the cuts in public expenditure and that the Government have to make difficult choices. However, there is widespread concern about the wisdom of the choices that are being made in Part 1 and whether it is appropriate to limit legal aid so extensively for those sections of the community that are most in need of advice and assistance to obtain the legal rights and benefits to which they are entitled.

The amendment seeks to focus this Committee’s debate on the contents of Part 1, and seeks to remedy a considerable defect in Clause 1. The defect is that the clause fails to mention that the objective of Part 1 must be to secure access to justice, to protect the needs of individuals and to do so in an effective manner. Clause 1 fails to recognise that our debates about the content of Part 1 should take place in the context that legal aid is a vital element in securing access to justice, and that without access to justice, the rights and duties which we spend time creating in this Parliament by legislation are reduced in value and effect.

The drafting of Amendment 1 is closely based on Section 4(1) of the Access to Justice Act 1999, which imposes duties on the Legal Services Commission. When the Bill transfers those responsibilities into the Lord Chancellor's Department, the primary objective of securing access to justice by effective means to meet needs must be retained in the Bill. That point was made in the report of your Lordships’ Constitution Committee, of which I am a member.

I very much hope that the Minister will be able to tell the Committee that he can accept the amendment. It is carefully drafted to recognise, as does Section 4(1) of the 1999 Act, that the duty to provide access to services in order to meet needs is not absolute. It is a duty defined by reference to the resources available. The drafting does not impose an independent duty which trumps the specific contents of Part 1. On the contrary, it says expressly,

“in accordance with this Part”.

I hope that the Minister will be able to accept the amendment as doing no damage whatever to the specific clauses which we shall be debating later in Committee. At the same time, the amendment ensures that the Bill recognises the vital principle which always has been and which should remain at the heart of our legal aid provisions: a commitment to providing access to justice. I beg to move.

[Lord Faulks]

My Lords, I support the amendment. As the noble Lord, Lord Pannick, explained, the current drafting is a change from the wording of the Access to Justice Act 1999 and the amendment makes it clear that the Lord Chancellor has an obligation to secure the access to legal services that meet the needs of the individual. That was recommended by the House of Lords Constitution Committee, although the amendment contains an important modification in that there is a qualification that the provision of legal aid must be on the basis of resources,

“made available in accordance with this Part”—

Part 1. In other words, there is no absolute requirement on the part of the Secretary of State to make legal aid available regardless of the financial situation.

I understand the purpose behind the Bill, which is, first, to save approximately £350 million as a contribution to reduction in expenditure generally and, secondly, to make some important changes to the litigation system as a whole. Although legal aid and the amendment are concerned with Part 1, it cannot be viewed in isolation, particularly not from Part 2, which brings about changes in current conditional fee arrangements. The need for those changes is clear. As recently as yesterday, a Court of Appeal judge observed at the end of the case that it was another case in which,

“the existence of a conditional fee agreement has made it practically impossible to obtain a settlement”.

He went on to observe that, ultimately, it is the public who pay for these things, either through higher premiums, or through the unwarranted expenditure of public resources.

Access to justice means satisfactory access not just for claimants but also for defendants. My reading of the purpose of some of the amendments put forward by the Front Bench of the party opposite is that they are intended substantially to maintain the status quo. This is somewhat surprising in view of the widespread acceptance of the undesirable effects of the current system, not least by Mr Jack Straw, former Secretary of State for Justice, in debates in the other place. I suggest that some of these amendments will actually impede access to justice.

There is an additional benefit from this amendment, apart from the clarity that I hope it provides. Our law is generally subject to the Human Rights Act—in particular, Article 6 of the convention, which provides for the right to a fair trial. How an individual state decides to reflect this principle in its provision of legal aid or some other form of assistance is, I suggest, very much for that state to decide, and it should be well within the so-called margin of appreciation—theoretically, at least—permitted by the courts in Strasbourg. There have been cases where in one context or another the lack of legal aid has been found to violate Article 6, although it might be said that the jurisprudence in this area lacks some coherence. However, this amendment should make such challenges far less likely to succeed in that there is a clear statement of the Lord Chancellor’s obligation and, contained within it, a sensible acknowledgement of the limits provided by available resources.

The Lord Chancellor said in an interview with the Guardian, published yesterday, that the Bill was concerned with,

“protection of fundamental rights of access to justice for critical issues that no civilised society can do without”.

I suspect that all in your Lordships’ House would agree with that aim. It is an aspiration that should inform our debates on the Bill in Committee in the weeks to come, and I suggest that this amendment is a good beginning.

--- Later in debate ---

[Lord McNally]

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

[Lord Pannick]

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

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

[Lord Thomas of Gresford]

Perhaps the noble Lord would outline what is meant by,

“in accordance with this Part”.

[Lord Pannick]

I will come to the noble Lord's concern that the amendment does not go far enough. My point is that if the Government are not even prepared to recognise the principle that the Bill should seek to secure, within the resources available, individuals’ access to legal services that effectively meet their needs, why should the Committee support the detailed reductions in the scope of legal aid that we will come to debate?

[Lord Thomas of Gresford]

I do not think that the noble Lord grasped my point.

[Lord Pannick]

I will deal with the noble Lord’s point if he will be patient; I prefer to deal with it in the course of my remarks and not at this precise moment. The Minister said that the amendment was unnecessary. I say with respect that that ignores the need for a statement of constitutional principle to assist the Lord Chancellor, the director, the courts and the public. The Minister suggested that these matters were inherent in the role of the Lord Chancellor. What, then, is the objection to putting the statement in the Bill?

The Committee heard support for the amendment from all sides of the House, and I am grateful to all noble Lords who spoke. The only noble Lords who spoke against the amendment, apart from the Minister, were the noble Lords, Lord Phillips of Sudbury and Lord Thomas of Gresford. Each was concerned that the amendment did not go far enough: that it was either anodyne or positively dangerous in cutting down on the possible provision of legal aid. I say to each of those noble Lords, and in particular to the noble Lord, Lord Thomas of Gresford, that his comments, with respect, ignore the provision that has been on the statute book since 1999: Section 4(1) of the Access to Justice Act 1999, the terms of which are echoed in this amendment. Under all Governments since 1999, that has been the state of the law, and Section 4(1) refers both to “the resources made available” and to provision,

“in accordance with this Part”,

so I cannot understand the objection to including those same phrases in Amendment 1.

[Lord Thomas of Gresford]

I do not think the noble Lord has grasped what I was saying. The amendment states,

“in accordance with this Part”,

but we have not determined what this part will cover. As the noble Lord realises, I have put down many amendments to Part 1 in an attempt to rejig what will be in scope and what will not. He is inviting the Committee to accept,

“in accordance with this Part”,

at the very outset before we have decided what is going to be in it.

[Lord Pannick]

With great respect to the noble Lord, I am inviting the Committee to accept that whatever the Bill is at the end of proceedings in this House and in Parliament as a whole, it is vital to have at the outset a statement of constitutional principle. This amendment is entirely without prejudice to all the amendments that we will be debating, considering, and perhaps voting on, many of which I support, but that is an entirely distinct question from the issue that we are now debating, which is the constitutional principle about what goes into the Bill. I was particularly grateful to the noble and learned Lord, Lord Goldsmith, for his support on this point, and I respectfully agree with what he said.

I am not going to test the opinion of the House today—I am going to take the advice of the noble Lord, Lord Newton of Braintree—but I very much hope that the Minister will be able without a vote to recognise that the opinion of the House is very strongly in favour of this amendment for all the reasons that have been expressed in Committee today. I am sure that the Minister will recognise that if there is no movement on this issue—an issue that I and many other noble Lords regard as absolutely fundamental—the House will return to this matter on Report, and it is clear, I suggest, that the Minister and the Government will face a substantial rebellion on their own Benches. For the present, I beg leave to withdraw the amendment.

Amendment 1 withdrawn.

Justice: Pre-trial Publicity

Lord Pannick Excerpts

Wednesday 14th December 2011 Lords Chamber

[Lord Pannick]

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

[Lord McNally]

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

Public Bodies Bill [HL]

Lord Pannick Excerpts

Wednesday 23rd November 2011 Lords Chamber

[Lord Borrie]

My Lords, we have just heard a most helpful intervention from the noble and learned Lord because he has put the issue of the Administrative Justice and Tribunals Council into context. It is concerned with that part of the judicial scene that consists largely of tribunals—under one name or another—that seek to do justice as between the individual and the state. It is a field of judicial work that has become increasingly significant and understood by the public and the courts—because sometimes, through judicial review or appeal, the courts have had to hear cases that have been attended to first by tribunals.

During our earlier debates in this House, I proposed an amendment that was, I should say to the Minister, only narrowly lost. It would have deleted this body from the list of bodies in the Bill that were for the chop, as the noble and learned Lord put it. I was grateful then for the support of the noble and learned Lord, Lord Howe, other noble and learned Lords in this House, and of course the noble Lord, Lord Newton. I do not know whether the noble Lord would agree with me, but one of the disadvantages of our debates on this subject is that the body is in the wrong place alphabetically. The trouble is that because its initial is A, it came at the beginning of a great list of bodies. Therefore, when seeking an amendment whereby this body would be deleted from the schedule of those bodies that were for the chop, we had to have a debate and vote fairly early on in our discussions. With respect to all those who took part, I do not think that the body received the justice it deserved to ensure its continued existence.

The noble Lord, Lord Newton, and the noble and learned Lord, Lord Woolf, have just emphasised the significance and importance of the AJTC and the fact that it should not be abolished because it provides an independent voice on matters which are of tremendous importance to this relatively new set of bodies—we are talking about 50 or 100 years but that is new in the law—which deal with disputes between the individual and the state.

There is a case to be made for independent advice from a body such as the AJTC, formerly known as the Council on Tribunals, which had a slightly narrower remit. Its significance was that there were practitioners of all kinds who were independent and represented the customer—the ordinary person appearing in these cases. Those practitioners included academic lawyers. I state an interest in that I once was such, but they provided useful input into the Council on Tribunals, in part because they knew something about the ways in which these cases were decided in other countries. Therefore, a knowledge of these matters and how other countries deal with them was brought to bear in the Council on Tribunals.

The noble Lord, Lord Newton, has stated very clearly that, while of course the assistance and guidance of civil servants in the department is invaluable and essential, useful advice can come from elsewhere, especially when it is given not by a narrow group but with each person representing him or herself on a whole range of interests concerning tribunals. Those people come together and discuss the vital maters affecting tribunals, and that will be lost if the AJTC is abolished.

The attempt by some of us to preserve this body in some form at an earlier stage was defeated, and I have perhaps been biased in my remarks as to how that came about. However, it would be of great service to the community and to the rule of law in this country if we took a step today through the amendment of the noble Lord, Lord Newton, to ask the Commons to look at the matter again.

[Lord Pannick]

My Lords, the policy of the law over the past few years has been to focus more attention on tribunals and to do so because they are quicker and cheaper than the courts and they often have expertise that judges, for all their qualities, do not have. Surely we should be very slow indeed to abolish the body which will help to ensure that this policy of the law is promoted efficiently, economically and in an independent manner.

Legal Aid, Sentencing and Punishment of Offenders Bill

Lord Pannick Excerpts

Monday 21st November 2011 Lords Chamber

[Lord Pannick]

My Lords, the exceptional quality of all the contributions that your Lordships have heard so far in this debate confirms—as if there were any doubt—the importance to the rule of law of the issues raised by this Bill. I want to focus my comments on Part 1. To put these issues in context, your Lordships may find it of assistance to look back at the speech of Sir Hartley Shawcross, the Attorney-General, when he introduced the Legal Aid and Advice Bill in the other place in December 1948. His concern and the concern of the Labour Government in those days was that the doors of the courts were in theory open to ordinary people,

“just as the grill room at the Ritz Hotel is open to all”;

but obtaining and acting on legal advice were,

“luxuries which were beyond their reach”.—[Official Report, Commons, 15/12/48; cols.1221-23.]

The 1949 Act recognised that the rights conferred by Parliament and the duties imposed by Parliament are undermined to the extent that people cannot enforce their legal entitlements through the judicial process. The law and democracy are quite simply brought into disrepute. As with other pillars of a civil society—such as an efficient National Health Service, an effective defence system and effective border controls— there is no getting away from the fact that these cost money.

I want to mention four main objections to Part 1 of the Bill. First, it does not recognise that access to justice is, as we have already heard today, a vital constitutional principle. Mention has been made of the report of your Lordships’ Constitution Committee last week. I am a member of that Committee and I will be putting down an amendment to replace Clause 1(1) of the Bill. The amendment will state that the Lord Chancellor must secure, within the resources made available, that individuals have access to legal services that effectively meet their needs. I hope that the Minister will be able to accept such an amendment, because it echoes precisely the current statutory provision in Section 4(1) of the Access to Justice Act 1999.

The second objection to Part 1 that I want to mention—we have heard about this already—is that it removes from the scope of legal advice and assistance many complex areas of law where the law is a vital safeguard of basic needs for the most vulnerable sections of our community—areas such as clinical negligence. The fact of the matter is this. It is indisputable that the removal of legal aid in these contexts will inevitably result in many hopeless claims being pursued by litigants in person, because they will not have had objective legal advice, as well as many proper claims not being pursued or, almost as bad, being pursued ineffectively by litigants in person. Do-it-yourself litigation—because that is what it is—will be as effective as a do-it-yourself medical operation, and I do not think that the elementary truth of that proposition is undermined by my declaration of interest. I am a practising barrister who occasionally has the privilege to act in legal aid cases.

I recognise the problems of delay and expense in the legal system. They continue to impede access to justice despite the exceptional work done in this area by the noble and learned Lord, Lord Woolf of Barnes, who I am delighted to see will be speaking later in the debate. But it is wholly unrealistic to suggest, as the Minister did in his measured opening to this debate, that mediation or a telephone helpline are practical solutions to the exclusion of legal aid in welfare law, in clinical negligence or, indeed, in family law where the problem is that often the parties are inherently unreasonable and unwilling to reach agreement, at least in their mutual relations.

The third point I want to mention is that Clause 8(2) will confer power on the Lord Chancellor by subordinate legislation to take further categories of services out of the scope of legal aid. This is inherently objectionable in that inevitably there will not be full parliamentary scrutiny. It is all the more objectionable when the Bill confers no power on the Lord Chancellor to add services back into the scope of legal aid, a point already mentioned by the noble Lord, Lord Thomas of Gresford, if, for example, experience shows a lack of wisdom in the exclusion or if, as we all hope, the economy improves. Again, I will be tabling an amendment on this subject, which was addressed by your Lordships’ Constitution Committee.

Fourthly, and finally, the money that the Government hope to save through these measures really needs to be assessed by reference to the financial costs that will have to be met by the state. Judges will need to deal with many more hearings in which litigants in person are going to waste valuable and expensive court resources. The health and housing agencies of the state and other welfare agencies will have the burden of dealing with the consequences of vulnerable children and adults being denied the benefits to which the law entitles them. The Justice Committee in another place and the Law Society have rightly criticised the Government for conducting no study into the costs of the provisions contained in this Bill.

I hope that the Minister will forgive me for saying that I know that he personally did not come into politics to aid and abet the infliction of serious harm to the legal aid system which Sir Hartley Shawcross introduced, and I very much welcome his assurance today that he will be listening as this House carries out its vital work of scrutinising the Bill in Committee and on Report.

Supreme Court: President

Lord Pannick Excerpts

Wednesday 16th November 2011 Lords Chamber

Asked By

[Lord Pannick]

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

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

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

[Lord Pannick]

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

[Lord McNally]

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

European Convention on Human Rights

Lord Pannick Excerpts

Thursday 19th May 2011 Lords Chamber

[Lord Pannick]

My Lords, as the noble Lord, Lord Thomas of Gresford, said, the enactment of the Human Rights Act 1998 was due in very substantial part to the ministerial and parliamentary skills of the noble and learned Lord, Lord Irvine of Lairg. It was due also to the persistent advocacy of the noble Lord, Lord Lester of Herne Hill. I pay tribute to both of them for their remarkable achievement. I also thank the noble and learned Lord for giving us this valuable opportunity to remind ourselves—and, I hope, the Government—of some basic principles that may have been forgotten during recent controversies.

I will make two points. First, I will address the suggestion made by many Members of Parliament that judges simply have no business involving themselves in matters of policy such as votes for prisoners or the notification requirements for sex offenders; these are, they suggest, matters for Parliament to decide. What those MPs fail to understand is that one of the central purposes of human rights law is to protect the interests of those sections of the community who lack political power, who Parliament has failed to protect against unfair treatment by the majority. The great cases of the past 30 years in which judgments of the European Court of Human Rights in Strasbourg persuaded Parliament to change the law of this country arose precisely because Parliament and the Executive failed to secure a fair balance in the treatment of persons who did not have the support of MPs and the press.

I declare an interest as an advocate involved in some of these cases, sometimes for the United Kingdom Government, sometimes for applicants—cases such as those concerning gay men and women who were excluded, entirely unreasonably, from military service; children subjected to corporal punishment; the refusal to recognise basic rights for transsexuals; and the prohibition of the involvement of politicians in the setting of tariffs for murderers. These unfair laws, and many more of them, were simply not addressed by Parliament until the European court identified the unfair treatment. This is quite simply a better country because of the judgments of the European court in such cases. Indeed, it also needs to be emphasised, as the noble and learned Lord, Lord Irvine of Lairg, did emphasise, that Parliament remained sovereign on all these issues, but it was the judgment of the European Court that persuaded Parliament that it was time to change our law.

That is not to say that I agree with all the judgments of the Strasbourg court. Who would? The court gave 1,500 judgments last year alone. I entirely agree with the noble Lord, Lord Prescott, about the urgent need for reform of the procedures of the Strasbourg court, not least to address the unacceptable delays. I would also like to see the European court recognise that, now that our judges apply the Human Rights Act, Strasbourg should give greater weight to the views of our distinguished Supreme Court judges when it is deciding difficult issues. The noble and learned Lord, Lord Mayhew of Twysden, made this point very forcefully.

The other matter that I want to address, like some other noble Lords who have already spoken, is the quite extraordinary conduct of the Prime Minister and the Home Secretary in March when they stated that they were appalled by a judgment of the Supreme Court given in April 2010 in relation to sex offenders. The noble and learned Lord, Lord Irvine of Lairg, referred to this matter, as did the noble Lord, Lord Thomas of Gresford. Many lawyers and judges are appalled not by the Supreme Court judgment but that the Government should think it appropriate to use such language in relation to a judicial decision. In each and every Government of the past 40 years there have been tensions between Ministers and the courts. The noble and learned Lord, Lord Woolf, who acted as Treasury Counsel in the 1970s, wrote:

“When I die there may be found burnt on my heart the names Laker, Congreve, Tameside and Crossman just to name a few of my defeats when acting for the Government”.

All Crown counsel since then could make a similar statement. I have represented in court most of the Home Secretaries who have served during the past 20 years and I have the scars to prove it. Some of them were more tolerant of legal setbacks than others, but the wise ones understood that those countries in which the Government win all their cases in court are not places in which any of us would wish to live. The Government and Parliament are of course entitled to disagree with a Supreme Court judgment or a ruling by the European court on human rights issues, but Ministers have a responsibility to encourage reasoned debate and not to shout out abuse and insults which undermine the rule of law.

Difficult though it is for the public to understand this principle, and tempting though it is for politicians to try to win support by fighting a battle of Parliament Square against the Supreme Court, the current Administration need to be reminded that there are many issues where the dispassionate assessment of public policy by an independent judiciary, and by a reference to standards of fairness and proportionality, serve a valuable public purpose.

Parliamentary Voting System and Constituencies Bill

Lord Pannick Excerpts

Wednesday 9th February 2011 Lords Chamber

Moved by

[Lord Pannick]

22D: Clause 11, page 10, line 37, at end insert—
“Exceptional circumstances5A If, but only if, a Boundary Commission is satisfied that—
(a) it is necessary to do so in order to achieve a viable constituency, and(b) such necessity arises from special geographical considerations or local ties, as defined in rule 5(1)(a) or (d) above, of an exceptionally compelling nature,the Boundary Commission may decide that the electorate of the constituency shall be—
(c) no less than 92.5% of the United Kingdom electoral quota; and(d) no more than 107.5% of that quota.”

[Lord Pannick]

Amendment 22D stands in my name and those of the noble Lords, Lord Williamson of Horton and Lord Armstrong of Ilminster, and the noble Baroness, Lady O’Neill of Bengarve.

The purpose of the amendment is to recognise and address the competing strength of the arguments advanced from each of the Front Benches on a matter of considerable significance: namely, the extent to which the Boundary Commission should have flexibility to depart from the electoral quota for each constituency laid down in the Bill. The Government contend—this is a very forceful argument—that equality in this area is of enormous significance. They have already recognised a 5 per cent margin either way. One must be very careful about giving any further flexibility lest one undermines the important goal of equality. Those arguments are very forceful, but equally forceful are the arguments advanced by noble Lords on the opposition Front Bench. They point out that equality is not the only goal: geographical considerations, local ties and community cohesion are also important in this sensitive area and there may be constituencies where the Boundary Commission would wish to depart from the electoral norm further than the 5 per cent margin.

The amendment recognises the force of each of those arguments and it suggests that the solution is to confer on the Boundary Commission in its discretion a very narrow—I emphasise very narrow—additional discretion to allow for a departure from the electoral norm of up to another 2.5 per cent either way. That would apply only if the Boundary Commission believes, in its judgment, that two criteria are satisfied. The first criterion is that a further departure must be necessary—not reasonable nor desirable, but necessary. The second criterion is that it must be necessary in order to address special geographical considerations or local ties—already the criteria in Rule 5—of an exceptionally compelling nature. On a matter as important as this, it is appropriate to include in the Bill that limited additional flexibility outside the 5 per cent norm, but I accept that it is absolutely vital that any such flexibility is defined in a way that ensures that the exception does not swallow the rule.

Amendment 22D has been drafted with the assistance and encouragement of noble Lords from all parts of the House. It has been drafted in a manner that I am confident achieves this narrow objective. I thank the noble Lord the Leader of the House, the noble and learned Lord, Lord Wallace of Tankerness, Mr Mark Harper, the Minister in the other place and the Bill team for the time and trouble that they have taken in discussing with me very patiently and courteously the Government’s concerns about this issue. I really have tried my best to accommodate those understandable concerns in this amendment in a constructive manner. There remain, I understand, four main concerns that Ministers still have. I will briefly identify and seek to address them.

The first concern is that the criteria, particularly the term “exceptional” are subjective. The Boundary Commission will, Ministers fear, be under pressure from people in many constituencies to recognise that their cases satisfy these criteria. The answer is that the criteria are very narrowly defined and the Boundary Commission will, I am sure, respect the clear limits in both the language and purpose of the amendment. I refer noble Lords to a 1998 judgment by the late and much lamented Lord Bingham of Cornhill, where he explained in another statutory context what “exceptional” means. He was, incidentally, rejecting arguments from counsel, Mr Clegg QC—no relation. Lord Bingham said that exceptional means something,

“which is out of the ordinary course, or unusual, or special, or uncommon”.

There are many contexts in which Parliament has used the term “exceptional”, and public bodies are used to exercising narrow discretions accordingly.

--- Later in debate ---

[Lord King of Bridgwater]

I am sure that that is not true because I know that I can talk to the Cross-Benchers, many of whom—

[Lord Pannick]

My Lords—

[Lord King of Bridgwater]

Perhaps I may just finish my sentence. I have had the pleasure of working with many Cross-Benchers over the years who will bring their independence of mind to this House.

[Lord Pannick]

I reassure the noble Lord that there is no Cross-Bench position on this. Each Cross-Bencher who has considered this issue has a position. Many of them agree with the views that I explained to the House, but some of them no doubt will not agree. There is no official Cross-Bench position.

--- Later in debate ---

[Lord Pannick]

I thank all noble Lords who have spoken in this important debate. I particularly thank the noble and learned Lord, Lord Wallace of Tankerness, for the reasoned way in which he addressed the points that I have made at all stages. I hope that this House is performing its vital function in relation to constitutional matters.

The noble Lord, Lord King, said that his concern was whether the amendment would promote equality, but equality is not the only value recognised by the Bill. The Bill accepts that there should be a 5 per cent variation either way. It accepts that there should be exceptions for Orkney and Shetland, the Western Isles and, as a result of the amendment moved by the noble Lord, Lord Fowler, the Isle of Wight. Equality is not the only value; there are other considerations that noble Lords will wish to take into account. The noble Lord, Lord Maples, said that he would not accept any of those exceptions. That is a logical position that I respect, but it is not the position taken by the Bill. It recognises that there are and there have to be exceptions to equality.

The second concern of the noble Lord, Lord King, which was shared by some noble Lords, was about delay. The noble Lord, Lord Maples, asked me specifically whether I would advise a client that a judicial review is hopeless. My short answer—indeed, it is also the long answer—is yes; in the context of a statutory provision that confers discretion, by reference to the criteria of necessity and exceptionally compelling circumstances, I would advise that it is hopeless.

The noble and learned Lord, Lord Scott of Foscote, expressed—if I may say so—a more nuanced view. I hope that that might demonstrate to the noble Lord, Lord King, if nothing else does, that the Cross-Benchers do not think and act as a group. If the noble Lord still has any suspicions in that respect, he may wish to look at yesterday’s Division lists, which will confirm that we do not think and act as a group on these vital issues.

My point is not that judicial review can never be used to delay action in any context. My point—which, with respect, was not addressed by noble Lords who are understandably concerned about this—is that in this context, where the criteria are so narrow, subjective and political, judicial review is simply not realistic; it is not an appeal to the merits. The key point was made by the noble Lord, Lord Butler of Brockwell, who rightly pointed out that if noble Lords are concerned about judicial reviews holding up the process, the real concern—which I do not share—should be about judicial reviews of the exercise by the Boundary Commission of the subjective functions that it has been given already under Clause 11. Those functions are not circumscribed in the way that the amendment circumscribes this discretion.

The noble Lord, Lord Rennard, expressed great concern about the term “viable”. The Oxford English Dictionary defines it as “workable” and “practicable”. It is not simply that “viable” is in the amendment; it is linked to a concept of necessity and a judgment by the Boundary Commission of what is necessary. That is the answer to the intervention of the noble Lord, Lord Phillips of Sudbury.

The noble and learned Lord, Lord Wallace of Tankerness, expressed concern that, under the amendment, Boundary Commissions would set different standards for different constituencies. They would not; the same criteria would apply to all constituencies. Of course, their application would differ according to the circumstances, just as the application of the existing Clause 11 criteria—the same criteria for all—will differ according to the circumstances of the constituency, and rightly so, in the judgment of the Boundary Commission.

Finally, the noble Lord, Lord King, pointed out that noble Lords should not accept an amendment simply in order to secure a compromise. He is right. I commend this amendment to the House not because it is a compromise but on its merits. It is fair, reasonable and workable. I say to all noble Lords that in the context of a Bill that makes fundamental changes to our constitutional arrangements—a context where consensus is vital if it can be achieved—it would be desirable, if possible, to give the Boundary Commission a carefully controlled discretion outside 5 per cent, which will undoubtedly give a large degree of reassurance to those who are concerned about the fundamental changes that we are making to an important aspect of our constitution. That would be a wise step for Parliament to take. My central point is that the amendment is right on its merits and I wish to test the opinion of the House.

Parliamentary Voting System and Constituencies Bill

Lord Pannick Excerpts

Monday 13th December 2010 Lords Chamber

[Lord McNally]

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

[Lord Pannick]

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

[Lord McNally]

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

Coroners and Justice Act 2009

Lord Pannick Excerpts

Wednesday 24th November 2010 Lords Chamber

[Lord McNally]

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

[Lord Pannick]

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

[Lord McNally]

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