Civil Legal Aid (Merits Criteria) Regulations 2012

Debate between Lord Phillips of Sudbury and Lord Goldsmith

Monday 3rd December 2012 Lords Chamber

[Lord Goldsmith]

I want briefly to support both amendments. So far as the amendment moved by the noble Lord, Lord Pannick, is concerned, it is not necessary to say very much after a former Lord Chancellor and a former Lord Chief Justice have both criticised the order as it stands because of the way it operates in different ways. I can summarise my view in relation to it very briefly. This order already recognises that there may be “reasonable” and “not reasonable” alternative procedures. It does that in Regulation 39. However, if one then reads Regulation 53(b), it is very clear that the word “all” must be read as meaning “all”. Therefore, if one expands the meaning, what is being said as it stands is that there will not be legal aid unless the individual has exhausted all reasonable and unreasonable alternative procedures. As soon as one poses the question that way, it becomes absolutely plain that it must be wrong to impose that obligation. I do not think it is necessary to say anything more than that to summarise why the noble Lord, Lord Pannick, and the noble and learned Lords, Lord Mackay of Clashfern and Lord Woolf, are absolutely right.

Let me turn to my reasons for supporting my noble friend Lord Bach in his amendment. I recall very well the clear and powerful way in which the noble Baroness, Lady Doocey, moved the amendments which led to this particular issue. They were strong and supported by a majority of this House. I have read the debate—though I did not listen, as my noble friend Lord Bach did, to the debate itself—which took place in the other place. It seems clear to me that what was being said was that a way would be found to enable legal aid to be provided in the first tier where there were points of law. The concern expressed by the Government was that they did not want that to be a point of law just because it was so stated by the claimant or the claimant’s lawyer. That is clear in column 266. However, the Government have not ended up with that at all. They have ended up with something which appears—if my understanding of the way the procedure works is right, and it follows that of my noble friend Lord Bach—to mean that legal aid does not come into the picture until after the event. That may be appropriate in certain other circumstances, but not here.

What one needs in these circumstances is the ability to identify a point of law which will be relevant and necessary for a particular applicant—particularly a claimant of the sort to which the noble Baroness, Lady Doocey, referred—to be able to put that point of law before the tribunal. I fully endorse her point that most claimants do not recognise a point of law when they see it. I suppose that as a practising and paid lawyer, I am quite pleased, on the whole, that that is the case, although I do not actually practise in this area. The point is this, however, and I ask the Minister to answer this question: why could the way the Government limit this not be by the chairman of the tribunal identifying the point and certifying it at the outset rather than waiting until after the event?

There is one point which connects these two amendments, and it is what drives me to want to persuade the House to support them. In LASPO, we were faced with changes which, for many of us, were very difficult to accept. The Government put them forward on the basis of economic necessity. However, there was a strong belief that there were cases where justice required that there should still be some opportunity for legal advice to be taken and used. In these particular cases—public law and cases involving claimants with disabilities, for example—the Government are failing to give effect even to that limited, modest exception that they were prepared to allow. I very much hope that the Government will think again in the light of this debate.

[Lord Phillips of Sudbury]

In the light of what I am going on to say to my noble friend Lord McNally, I would first like to say that the whole House well understands the exigency that led to the LASPO Bill. However, as my noble friend Lady Doocey forcefully pointed out, and it cannot be repeated enough, in the realm of social welfare law, there is a singular obligation on us as parliamentarians to will the means of accessing those benefits. Unless we do that, everything that Parliament does is a charade or a sham; because it is cynical on our part not to give the people most in need in our blessed country—the poor, those lacking in self-confidence, those without a scintilla of understanding of the law and those who can scarcely read a Bill and understand it—the real opportunity to access the benefits we are proud to bestow on them. It puts this realm of public expenditure into a special bracket. There are very few areas of expenditure, I suggest, that really come within that narrow purview.

It was interesting to hear the noble and learned Lord, Lord Goldsmith, talking about lawyers looking forward to these rather nuggety issues in social welfare—it was a joke of course—but the reality is that no lawyer goes into the realm of social welfare law to line his or her pockets. I can tell the House that only the most socially minded lawyers subject themselves to practising in this field.

I hope my noble friend Lord McNally will accept my next point. In all the fields of law, there is nowhere more complex than the forest of social welfare legislation. It runs to hundreds and thousands of pages. It is utterly futile to pretend that the ordinary bloke can begin to put together the grounds for going to the director to ask for support to launch an appeal if he or she has got to understand the legal background and legal prospects, because that is way beyond the capacity of all but a very small number.

My final point is this. When the noble and learned Lord, Lord Mackay of Clashfern, was five minutes into his speech, I wondered whether he had, by mistake, picked up my notes. Every single word he said about the clash between Regulations 39(d) and 53(b) was absolutely the same as what I was going to say. The only thing I would add to it—and this is addressed to my noble friend Lord McNally—is that, as the noble and learned Lord, Lord Mackay, made clear, Regulation 39(d) is expressly imported into Regulation 53, but the language in Regulation 39(d) and Regulation 53(b) is not consistent.

That raises further problems. If things proceed as they are, for example, it is unclear what is meant by the word “unavailable” in Regulation 53(b). It is also not apparent to me how to construe the words in Regulation 53(a),

“appears to be susceptible to challenge”,

with the word in the following subsection (b), “procedures”, which are available to challenge. The refinements in the language and, I believe, the confusion are such as to render this part of the regulations not fit for purpose. I very much hope that my noble friend will be able to give the House an assurance at the end of this debate that there will be amendments to the regulations hot on the heels of the passage of the same.

Crime and Courts Bill [HL]

Debate between Lord Phillips of Sudbury and Lord Goldsmith

Tuesday 13th November 2012 Lords Chamber

[Lord Phillips of Sudbury]

I am most grateful to the noble and learned Lord for giving way. Does he not have a residual concern that if one allows individuals into this plea-bargaining regime it could give rise to the sort of scandal that my noble friend Lord Marks referred to of rich, powerful and well lawyered individuals escaping the opprobrium of prosecution and appearance in court that might otherwise be the way forward?

[Lord Goldsmith]

I am not concerned about that for this reason. There are two very powerful safeguards in the Bill that should prevent that. First, the DPA has to be agreed by a prosecutor and, as the debate on the previous amendment demonstrated, not just any old prosecutor but either the Director of Public Prosecutions or the director of the Serious Fraud Office—or, possibly, a person designated by the Secretary of State. I leave aside the locum tenens that might come in; the Minister will tell us at some point how likely that will be. First, the prosecutor has to decide whether it is appropriate. Having spent, as the Committee will know, a lot of time with prosecutors when I was in office, I had a high regard for their understanding of what the public interest and public reaction is. They know when people need to go to prison, if they are convicted, and they know when it is appropriate for them not to do so. We can rely a great deal on them to decide which cases are appropriate and which are not.

There is then a second safeguard. Under the Bill as it stands, it has to go to court twice, and the court has to be satisfied that it is appropriate and proportionate for such a step to be taken. Those safeguards mean that one can be much more relaxed about the risks to which the noble Lord, Lord Phillips of Sudbury, refers. Of course, I would entirely agree with him that if we had a situation in which the system operated only to the benefit of the rich it would be wholly unsatisfactory. That is one reason why I think that extending the ability of DPAs so that they cover the sort of offence that I have referred to and individuals would meet part of that concern. If anything, I am worried that by limiting this to economic crimes for companies and partnerships one sends the very message that the noble Lord, Lord Phillips of Sudbury, does not want to be sent. I invite the Government to think very hard about that.

Those are the two safeguards. My personal preference would be not to add any other barriers. I would not add the barrier of the offence being likely to carry a sentence of imprisonment. As the noble Lord, Lord Marks, recognised, if this was extended to cover the sort of case with which I have been concerned it would rule those cases out. I would leave it to the good sense, judgment and sense of public interest of the prosecutor and the court to limit the cases. For the same reason, I would leave the ambit of cases that could be covered open. I would not try to cherry pick through the statute book to find other offences that might be appropriate. I would leave that to the prosecutor and then to the court to say whether it was appropriate to use it for this sort of environmental offence or that sort of health and safety offence. I predict that fairly soon we will have a code giving guidance, and no doubt there will be debates in this House and in other places from time to time as well, and we will see the sort of offences that are appropriate. It is a very useful tool. Other dispositions are not normally limited in this way to particular offences, individuals or specified periods in prison. When I move my amendment, I will invite the Government to consider those points very carefully.

--- Later in debate ---

[Lord Goldsmith]

More than once in this debate it has been said that this is an entirely novel approach. I invite the noble Lord to consider the fact that we already have deferred sentences, under which judges say, “If you do certain things”—and they are supposed to say what they are—“over the next three or six months, I will take a different course”. We have suspended sentences. I have already referred to the fact that we have conditional cautions. I challenge the proposition that the Government’s proposal is so novel, and invite the noble Lord and his office to consider that.

[Lord Phillips of Sudbury]

That applies in a case that has been tried in open court and a conviction has been made. It is vastly different from the plea-bargain situation where there is no open-court hearing, no obloquy and no public shame.

Crime and Courts Bill [HL]

Debate between Lord Phillips of Sudbury and Lord Goldsmith

Tuesday 30th October 2012 Lords Chamber

[Lord Goldsmith]

I am grateful for that. It makes sense because the questions I want to raise are very much in the nature of those put in a Second Reading debate. Let me explain first why I am broadly in favour of this approach. While I agree with a number of the points made by the noble Lord, Lord Marks of Henley-on-Thames, I think he missed the main point. The main point of DPAs is not so much to substitute a financial penalty or something of that kind for a conviction, it is to provide a mechanism to change behaviour. The critical point is to agree conditions which act as a carrot and a stick. If you go forward and you comply with conditions that change your behaviour, you will not find yourself being prosecuted and convicted. A classic example of this which is not in the field of economic crime—I want to come back to that point—would be disposals in relation to people who have been involved in drug offences. You want to find a way there of changing their behaviour in taking and dealing drugs. In some jurisdictions in the United States, that is done by having in effect a deferred prosecution agreement under which they agree some pretty tough conditions about how they deal with their drug problem, including treatment, regular testing and so forth. If they fail, they go back to court and are dealt with very heavily; if they succeed, it is very much to their benefit, and also of course to that of the public, that the problem is removed.

The idea of a deferred prosecution agreement, in my mind, is to change behaviour by having a carrot and a stick. Therefore, the conditions that the schedule provides may be entered into include conditions, for example, for future compliance—which is critical, it seems to me—by someone who is subject to a DPA of their business, because that is the way this is drafted at the moment. That is desirable. Indeed, I became of the view that something like this was necessary during the course of my time in office when I recognised that we did not have the ability under English law to say to somebody, “OK, you say you are contrite and that you are prepared to do all these things. That is very good and we will give you credit for it, but I am sorry—you are still going to be convicted. You will have a conviction, which means that when you come to take employment or apply for whatever it may be, you will have that against you”. I thought it was a tool that we ought to have to be able to avoid that. It plainly does not apply in every case—let me make that very clear—and many offences require very significant and severe penalties to be imposed. I am not a softie when it comes to any of that at all. However, I came to the view that we ought to have something of that sort.

We did not have it, although my noble friend Lord Beecham is right that we ended up, I think, with the Criminal Justice Act 2003. I may have got the Act wrong, as we did pass one or two Criminal Justice Acts in our time—noble Lords will forgive me if I cannot distinguish them all from each other with absolute precision. We provided for a conditional caution, which is different from a fixed penalty, as it was a caution with conditions attached; for example, to go on an anger management course, a drug or more likely drink treatment course. A prosecution did not take place at that time, but if the person did not comply with the conditions, they could be prosecuted and sentenced for the original offence. That idea is already in our system, although, as my noble friend has said, quoting my words, at the other end of the scale of offending. In principle, it is a good idea. We commissioned a review on fraud with the Chief Secretary to the Treasury in the belief that we did not deal adequately with economic crime in this country on a number of grounds. It came up with some recommendations, including something along these lines.

I will turn, with that degree of general Second Reading-type support, to the some of my questions. The first is the one raised by the noble Lord, Lord Marks, about whether it is right that this should be limited to companies or business organisations. There is a lot to be said for having this tool available in relation to individuals as well, and I have already given a couple of examples where that could be useful. I recognise that, as it stands, the proposal gives rise to the concern that this is just for business to buy its way out of prosecution. Actually, if this was a broader power, which was only applied appropriately, that concern would start to disappear. There are circumstances in which I believe individuals and the public would benefit from such a power. If one is limiting it to corporations and businesses, it is quite difficult to fully justify that. If this were restricted to offences such as those under Section 7 of the Bribery Act—where I think this will be used quite a lot—that do not involve what we would call a “guilty mind” on behalf of a corporation, in that it is an offence that it is guilty of despite a lack of intention to commit the offence, it might be justifiable. However, the offences that are included potentially include offences where the corporation or partnership would only be guilty if there was a guilty mind. I am not convinced and would like to hear more from the Minister as to why it is thought to be right.

Along with the noble Lord, Lord Marks of Henley-on-Thames, I am not convinced that it is right to limit the availability of this power to economic crime. He mentioned a number of areas. I cannot comment on the fishing side, as I am just a town boy and have never understood that side of things, but he is right about environmental issues, which are terribly serious, where sometimes you want to impose some form of regime that means that the business will operate in a much better way in the future, although you may have some penalty attached at that time as well. Health and safety is another area. I do not want to minimise health and safety offences, which are very important, but that is another area where businesses, and the public, might benefit from this sort of review. I invite the noble Lord to say a little more about why it is limited in this way. Is it because it is thought this might get it through this House and Parliament or are there other, more principled, reasons? It gives rise as it stands to the objections that my noble friend has raised.

I will raise some more specific points on paragraph 5. It is noted that a DPA, in the statement of facts, may include “admissions made” by the person who is subject to the order. This is unlike the conditional caution regime, which requires admission for it to operate. I assume that this is a deliberate decision by the Government so that DPAs can be imposed on people who are not admitting the offence at all. I do not object to that, as it may be quite a good way of dealing with certain situations where the prosecution are not sure that they can prove the case but someone is prepared to pay a penalty, pay compensation and change their behaviour for the future. However, I ask the noble Lord whether that is the intention behind this. Paragraph 5(3)—

[Lord Phillips of Sudbury]

Does the noble and learned Lord not think that if he pursues that line, it will enable the party that has entered into the DPA to get away even more with what they have done? I think I am right in saying that in the United States, with a plea bargain, they at least have to admit that there has been some wrongdoing. If they do not even have to admit that, the public relations impact of one of these DPAs will be even less that it will be anyhow.

[Lord Goldsmith]

The noble Lord may be right about that. I am asking the Minister a question about the thinking. One has to recognise that there are cases where the prosecution cannot actually prove the case, or it would be enormously expensive to do so, with uncertain prospects. I can see that there may be circumstances where getting a regime that for example secures compliance for the future may be worth while. However, that is only my speculation as to why “may” is there rather than “must”, which I would have expected based on the conditional cautions.

Paragraph 5(3)(e) talks about the implementation of a “compliance programme” and I would like the noble Lord to say something about what sort of compliance programmes the Government have in mind, and whether they would include, for example, the putting in place of monitors, and whether that is something that can be sufficiently dealt with by the words here or whether it needs some specific language. As regards paragraph 6 of the code on DPAs, is it intended, as my noble friend Lord Beecham asked, for the code to be placed before Parliament—as is the code for the crown prosecutors, if my recollection serves me right? I can see that Parliament would have an interest in that.

Paragraphs 7 and 8 would require the prosecutor to apply at different stages for declarations in certain terms that entering into a DPA is likely to be,

“ in the interests of justice”—

and that the proposed terms of the DPA—

“are fair and reasonable and proportionate”.

Is it necessary to ask a court to do that? Plainly, the court must be asked to approve the solution. However, I am not sure whether one should also ask the court to make declarations as to these matters. I would like to hear from the Minister as to the thinking behind that. As I understand it, under paragraph 8, the final hearing must be in public, whereas the preliminary application would be in private. I would be grateful for confirmation as to that.

Paragraph 11 deals with discontinuance of the DPA. I am probably missing it but I looked for a clear statement that if there is a finding of non-compliance by the court, that is likely to result in criminal proceedings being instituted. Finally, I, too, would welcome hearing what the proposals are in relation to addition to this schedule and the procedure that will be adopted.

I apologise for that quite long list. This is an important provision. It is a bit difficult to see how we are going to deal with it in a second Committee stage. I am looking forward with great interest to seeing whether the Minister is actually moving the whole of the schedule now so it goes into the Bill and we then apply to amend it, but I accept his assurances that if that is what happens, we will be able to apply to amend it hereafter.

Legal Aid, Sentencing and Punishment of Offenders Bill

Debate between Lord Phillips of Sudbury and Lord Goldsmith

Tuesday 20th December 2011 Lords Chamber

[Lord Phillips of Sudbury]

The noble Lord has just made the case for the Government rather succinctly. That is the argument; what I am saying is that if you put the qualifying phrase,

“within the resources made available”,

into Clause 1, then everything is subservient to it. At the moment, the legal aid cost rises and falls—it usually rises but occasionally falls—according to the demands of the citizen upon it within the scope of legal aid availability. As I say, with this phrase in it the Government could say at the start of the year, “We are not paying out more than blank pounds for legal aid”, and that would be that.

[Lord Goldsmith]

Perhaps I might say to the noble Lord that I was concerned about precisely that point. I look to the noble Lord, Lord Pannick, and indeed to the Government, but I hope that the answer is in the requirement that it should be secured,

“in accordance with this Part”,

and that that therefore means that those things which I, too, hope will be in the Act at the end of this Bill’s passage will have to be secured, and will not be subject to any monetary qualification. I hope that that is the answer as it was part of my reason for taking the view, after my hesitation, that I would support the amendment.

[Lord Phillips of Sudbury]

I refer the noble and learned Lord to the fact that the sentence within the brackets which qualifies the obligation of the Lord Chancellor to secure includes the words,

“within the resources made available and in accordance with this Part”.

If they are in conflict—namely, that the resources made available are insufficient to meet the demands of this part of the Bill—then we are in a bit of a muddle, are we not?

Fixed-term Parliaments Bill

Debate between Lord Phillips of Sudbury and Lord Goldsmith

Monday 18th July 2011 Lords Chamber

[Lord Goldsmith]

I have two answers for the noble Lord. First, that is one of the reasons why this Bill has never been necessary. It would have been perfectly possible for the Prime Minster to have made it very clear—on his honour, on his commitment, or whatever— that he was not going to go to the country until later. That was undoubtedly one of the options which was available, as we know from the evidence that has been given. The reasons why it was not taken I do not find at all convincing. Nevertheless, that is the route by which the Government have gone. Secondly—I say this with respect to the noble Lord, who has not been here as long as some other noble Lords—this House has the obligation and the responsibility of saying to the other place, “We think you are wrong. Think again”, and from time to time of saying, “We think you are wrong and we are not going to support what you are trying to do”.

[Lord Phillips of Sudbury]

Does the noble and learned Lord know of any precedent or parallel for the provision which he supports?

[Lord Goldsmith]

This House has put forward sunset clauses which have been agreed a number of times; the precise mechanism does not matter. The point is that this House has said from time to time—for example, in relation to control orders—“All right, Government, you can have them for the time being, but you are not going to keep them without some further legislative process”. That seems to me to be a very good idea.