Lay Magistrates

Debate between Lord Pannick and Lord Keen of Elie

Monday 20th February 2017 Lords Chamber

[Lord Keen of Elie]

Magistrate remains a sought after role, and competition for vacancies tends to be strong. Advisory committees employ a range of techniques to reach out into their communities for applications to the Bench. This can and does include advertising in public places such as libraries, community centres and the local press. At present, there are no plans to put forward further financial incentives.

[Lord Pannick (CB)]

My Lords, in light of the concern about the age of magistrates, will the Minister look again at the unreasonably low retirement age of 70 for magistrates?

[Lord Keen of Elie]

I remind the noble Lord that the unreasonably low retirement age of 70 applies also to justices of the Supreme Court.

Civil Proceedings, First-tier Tribunal, Upper Tribunal and Employment Tribunals Fees (Amendment) Order 2016

Debate between Lord Pannick and Lord Keen of Elie

Wednesday 20th July 2016 Lords Chamber

[Lord Pannick (CB)]

My Lords, our new Lord Chancellor needs urgently to address the level of fees for access to courts and tribunals, for all the reasons given by the noble Lord, Lord Beecham, and in all the other speeches that the House has heard, after the speech of the noble and learned Lord, Lord Keen. Like the noble Baroness, Lady Kennedy of The Shaws, I welcome Liz Truss to her new role as Lord Chancellor. It is an important role. She has a statutory duty to protect the rule of law.

The noble Baroness, Lady Kennedy, mentioned that Liz Truss is a woman and expressed concern that that may have provoked some of the hostility. I should point out that, contrary to reports, Liz Truss is not the first female Lord Chancellor. Lord Campbell, in his 19th century Lives of the Lord Chancellors, included Queen Eleanor, wife of Henry III. In 1253, in the king’s absence abroad, Eleanor performed all the duties of the office, judicial as well as administrative, for the best part of a year. No doubt a 13th century Lord Falconer complained that Eleanor had not been trained as a lawyer and that she had not previously served as a senior Cabinet Minister. I am prepared to see how Liz Truss performs in her office before criticising her—or indeed criticising the Prime Minister for appointing her. The new Lord Chancellor’s attitude to court fees will for me be an important test of her commitment to the rule of law.

Like my noble and learned friend Lord Brown of Eaton-under-Heywood, I have appeared in previous debates on this subject. I do not have his complete record of attendance, but I have appeared on a number of these occasions in support of the noble Lord, Lord Beecham. I have explained repeatedly my concern about the Government’s policy on fees for courts and tribunals. It is a very simple matter. The high levels at which fees are set undoubtedly impede access to justice for legitimate claims. It is as simple as that; potential claimants cannot afford to vindicate their rights. The inevitable consequence is that debtors and rogue employers are encouraged not to meet their obligations because they know that they will not be taken to court or to the employment tribunal.

It is not appropriate for the Lord Chancellor of this country to stand in the doorway of the Royal Courts of Justice or of the employment tribunal and say to those who want to claim for unfair dismissal, or say to the small business person seeking to recover a debt, “You can’t come in unless you pay me a sum that greatly exceeds the cost of dealing with your case”. I recognise that Parliament has given the Lord Chancellor the power to do precisely that, but I do not think that it is wise for a Lord Chancellor to exercise that power. I am certainly not persuaded by the creative argument of the noble and learned Lord, Lord Keen, that the fee increases promote access to justice. That is a quite remarkable argument that your Lordships have heard this evening.

I am particularly concerned by the contents of the report published by the House of Commons Justice Committee on 14 June, entitled Courts and Tribunals Fees, HC 167. It is a remarkable document, and I have these questions for the Minister based on that report. First—and I echo the noble and learned Lord, Lord Brown of Eaton-under-Heywood, in this first question—does the Minister accept the principle stated by the Justice Committee in paragraph 46 of its report:

“Where there is conflict between the objectives of achieving cost-recovery and preserving access to justice, the latter objective must prevail”?

Does he accept that?

Secondly, does the noble and learned Lord accept the conclusion of the Justice Committee at paragraph 50 of its report that the senior judiciary was correct in its evidence to the Ministry of Justice that the research conducted by the ministry before formulating its policy on court and tribunal fees was inadequate to justify the ministry’s proposals?

Thirdly, does the Minister accept the Justice Committee’s conclusions at paragraphs 58, 59 and 79 of the report that it is “unacceptable”—its word—that the committee was “strung along”—again, the committee’s words—by the Government’s refusal to publish its own review findings on the impact of employment tribunal fees, and that those findings must be published now without any further delay? I have to say to the Minister that the Government’s conduct in not publishing review findings that they obtained several months ago on a matter of considerable importance is quite disgraceful. Will the Minister apologise on behalf of the Ministry?

It has been traditional in these regular debates on this subject—regular debates on the injustices perpetrated by a Ministry of Justice—for noble Lords to have the pleasure, and it has been a real pleasure, to listen to the eloquence of the noble Lord, Lord Faulks, in defence of the Government’s position. I am very pleased to see him, although he is not in his usual place but in his new place on the Conservative Benches. Your Lordships know that the noble Lord resigned last Thursday. All of us at the Bar have had the irregular experience of being asked to present hopeless cases. The noble Lord, Lord Faulks, did that with charm, good humour and sensitivity several times a month. We will all miss him in his role as the acceptable face of the Ministry of Justice—as Chris Grayling’s and Michael Gove’s representative on earth, in the real world, where small businesses seek to recover debts and unscrupulous employers evade their duty to make redundancy payments. For every unjust policy that the noble Lord had to defend in this House, I suspect that there were at least three other impossible policies that he had refused to believe in and fought off before breakfast every day.

The Government are very fortunate still to have the services of the noble and learned Lord, Lord Keen, but I suspect that even his skills of advocacy will be severely tested by the brief that he has inherited this evening. I shall listen very carefully to his defence of government policy before deciding whether to support the noble Lord, Lord Beecham, in the Lobbies should he decide to divide the House.

[Lord Keen of Elie]

My Lords, I begin by thanking the noble Lord, Lord Beecham, for his kind words. I am pleased to be here to speak on behalf of our new Lord Chancellor, and I speak with confidence. The noble Lord referred to a report or review that had been put in the hands of the Minister—and, for reasons that he elaborated on, he will appreciate that it is not in my hands. That review has—and it is a matter of considerable regret—taken longer than had been anticipated; but it will be published in due course.

One point of very real interest was the emphasis on fees in the context of the employment tribunal.

[Lord Pannick]

I am sorry to interrupt the noble and learned Lord so early, but is he going to say more about why the report is not now being published? What is holding it up? What is the delay?

[Lord Keen of Elie]

I understand that it has to be approved at a ministerial level before it can be published. The noble Lord, Lord Pannick, will appreciate that there has been something of a delay in respect of those matters. As I say, it will in due course be published.

Much has been made of the matter of employment tribunals and fees in employment tribunals and the issues that arise there. I suppose that one has to answer for the sins of one’s fathers. The present order addresses fees in the employment tribunal, and does so only in one respect, and that is to reduce them—and why that should be a matter of regret rather escapes me. The one matter addressed in this order with respect to employment tribunal fees is that, in respect of certain specified appeals, they should not by default go into type B of the schedule to the relevant order, but into type A, thereby attracting a much lower level of fee. So I find it difficult to understand why that provision is such a matter of regret.

Let me put the matter of costs and fees into context. The total cost of the courts and tribunals in 2015-16 was about £1.9 billion. The income recovery was about £700 million, leaving a shortfall of about £1.2 billion, and the question is where that should fall—on the taxpayer in general or on those who use the courts in part. With regard to employment tribunals, the total cost incurred was £66 million and the fee recovery was a gross £12.8 million. Why do I say gross? It is because there is a very effective fees remission system which meant that fees to the extent of £3.9 million were remitted. The majority of those individuals who secured remittance of fees were women. So that system is working: those who are vulnerable or in financial difficulty have access to the fees remission system.

Investigatory Powers Bill

Debate between Lord Pannick and Lord Keen of Elie

Wednesday 13th July 2016 Lords Chamber

[Lord Keen of Elie]

My Lords, the Government recognise the importance of legal professional privilege—the client’s privilege—in the context of the rule of law. This is perhaps one of the most important issues that we will consider in the context of the Bill.

The noble Lord, Lord Pannick, outlined the operation of legal professional privilege and explained what is sometimes termed the iniquity exception. He went on to identify what he considered to be the issue of principle that we are concerned with in the context of the amendment and invited me to indicate whether I agreed with his outline of privilege—the iniquity exception—and the principle with which we are concerned. I am happy to concur and accept his clear exposition of the position in that regard. So I shall not elaborate on what is legal professional privilege or the iniquity exception, except to this extent. What is termed the iniquity exception arises where the client is using the conversation with the lawyer in furtherance of a criminal purpose, whether or not the lawyer is a witting party to that. If the lawyer is unwittingly used as a tool or a conduit, the iniquity exception would apply in those circumstances as well; with that, we have no difficulty.

However, there are further circumstances in which the iniquity exception would not necessarily obtain, and when a very important piece of intelligence might become available if the communication was considered by the relevant authorities. I go back to a scenario that I shared with number of noble Lords when we discussed this in recent days. An agency may have intelligence to suggest that an individual is about to carry out a terrorist attack. It knows that he is in contact or about to be in contact with a legal adviser, and it has reason to believe that that contact with the legal adviser might reveal information that could assist in averting the terrorist attack. The example is where the client might refer to his whereabouts. He might say, “I’m in Paris”, or “I’m going to be in Paris tomorrow”, or “I’m in London”, or “I’m going to be in London tomorrow”. It is that piece of intelligence in the course of the privileged communication that is critical. I know that some commentators—and, indeed, the Bar Council—have suggested that that would fall within the iniquity exception; it does not. Indeed, if we try to stretch the iniquity exception, we damage the concept of legal professional privilege, so we must be very careful about how we approach this.

So there is that exceptional situation—and it must be exceptional before any warrant could be contemplated—in which intelligence gleaned from such a conversation would be of critical importance. I stress the word “intelligence” because on occasion it is very easy to refer to this as evidence. Such intelligence would never be admissible in a court of law, so let us be careful about that. We are talking about intelligence as such, not evidence.

The noble Lord, Lord Pannick, suggested that this would be such an unusual event that to approve the power would be to approve a power of purely theoretical value. With great respect to the noble Lord, the fact that something is highly unusual or highly exceptional does not render the power theoretical. The power may not have been employed in the past and it may not be employed in the foreseeable future; that does not render the power theoretical. The occasion may arise, in the face of a terrible terrorist threat, in which such intelligence can be made available to the appropriate agencies. If we bring down a guillotine, LPP will be denied to them. So the power is not theoretical.

The noble Lord, Lord Carlile, made the very good point: we are really dealing here with the question of balance. Should we intrude upon what we see as legal professional privilege—that fundamentally important concept—for the sake of a highly exceptional case in which such intelligence could be critical? There is an element of balance there.

[Lord Pannick]

My Lords—

[Lord Keen of Elie]

If I might continue for a moment, reference was made to the potentially chilling effect—I am not sure about the chilling effect of burning down a house to roast a pig—that this would have on lawyer-client relationships. Indeed, the noble Lord, Lord Pannick, spoke of the enormous damage to the rule of law, with no lawyer able to say that his legal advice was confidential. With great respect, this power has been available to the relevant agencies since 2000. The safeguards that we wish to place in the Bill have been contained in codes of conduct since 2003. Can the noble Lord, Lord Pannick, give me a concrete example of enormous damage to the rule of law since 2000 because of that existing power? Can he give me a concrete example of a lawyer saying to his client, “I can’t give you confidential legal advice because of this exceptional power”, which has existed now for 16 years? I am not aware of any such examples, I have to confess. The noble Lord wanted to intervene, so I shall give way at this point.

Investigatory Powers Bill

Debate between Lord Pannick and Lord Keen of Elie

Monday 11th July 2016 Lords Chamber

[Lord Pannick]

Can the Minister give the Committee a practical example of where it would be necessary and proportionate—the test that he emphasises—to exercise these powers where there is not, to quote the amendment,

“a reasonable suspicion that a serious criminal offence has been or is likely to be committed”?

[Lord Keen of Elie]

I think the noble Lord helpfully makes my point for me. As I said at the outset, we are dealing with apples and oranges. We achieve the same objective by different routes, but I am obliged.

[Lord Pannick]

I am sorry to prolong this but I am not agreeing with the noble and learned Lord, I am asking for a practical example of why the Government are not prepared to accept a “reasonable suspicion” test.

[Lord Keen of Elie]

For example, in the case of a missing person there may be no reasonable suspicion but it may still be necessary and proportionate to grant a warrant in those circumstances. I hope that that is concrete enough.