Office of Lord Chancellor (Constitution Committee Report)
Lord Phillips of Worth Matravers Excerpts(10 years ago)
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Lord Phillips of Worth Matravers (CB)
My Lords, I gave evidence to the Constitution Committee when it was considering the role of the Lord Chancellor, and I am grateful to the noble Lord, Lord Lang of Monkton, for the opportunity to comment on his committee’s report and on the response of the Government, as set out in the letter of Chris Grayling.
The Government broadly welcomed the report but did not accept that any of its specific recommendations required action or a change of attitude on the part of the Government. I am going to suggest that this response showed an unwarranted complacency, and I propose to do so by reference to the evidence given by the then Lord Chancellor to the Joint Committee on the Draft Voting Eligibility (Prisoners) Bill on which I served.
Section 1 of the Constitutional Reform Act provides that:
“This Act does not adversely affect … the existing constitutional principle of the rule of law, or … the Lord Chancellor’s existing … role in relation to that principle”.
That role is underlined by Section 17, which requires the Lord Chancellor, on taking office, to swear an oath, which begins with this undertaking:
“I will respect the rule of law”.
As we have heard, the Constitution Committee concluded that,
“The Lord Chancellor’s duty to respect of the rule of law extends beyond the policy remit of his or her department; it requires him or her to seek to ensure that the rule of law is upheld within Cabinet and across Government”,
that this oversight role,
“is not adequately reflected in the current oath which requires him or her simply to ‘respect the rule of law’”,
and that the oath should be amended,
“to a promise to ‘respect and uphold the rule of law’”.
The committee also recommended that the Ministerial Code and the Cabinet Manual should be revised to reflect this oversight role. The Government disagreed with the desirability of effecting these changes.
Section 2 of the Constitutional Reform Act sets out the matters that the Prime Minister may take into account when appointing a Lord Chancellor. These include experience as a practising lawyer or as a teacher of law in a university. It is not, however, mandatory that the Lord Chancellor should have any previous legal experience. Some expressed concern about this. Witnesses emphasised the importance of the Lord Chancellor understanding the rule of law. The committee itself commented that,
“the rule of law remains a complex and in some respects uncertain concept”.
The committee stated:
“We recognise the advantages to appointing a Lord Chancellor with a legal or constitutional background. We do not consider that it is essential but, given the importance of the Lord Chancellor’s duties to the rule of law, these benefits should be given due consideration”.
In the Government’s response, Chris Grayling commented dismissively:
“The Government welcomes the Committee’s acknowledgement that it is not essential for the Lord Chancellor to have a legal background”.
In the same vein, the committee drew attention to the fact that,
“neither the Lord Chancellor nor the Permanent Secretary are required to be legally qualified. In a department responsible for the legal system and … the maintenance of the rule of law, this is undesirable. We recommend that the Government either ensure that the Permanent Secretary supporting the Lord Chancellor at the Ministry of Justice is legally qualified, or appoint the top legal adviser in that department at permanent secretary level”.
The Government did not agree, contending that access to legal services provided by the Treasury Solicitor’s Department was sufficient. Happily, that recommendation has now been implemented in practice.
I suggested that these responses show complacency. For a lawyer, respect for the rule of law goes beyond an intellectual appreciation of its importance. It is, or should be, a passionate belief in and understanding of the concept, for it is the critical foundation of a democratic society. If the Lord Chancellor is not a lawyer, it is surely desirable that he should have at his right hand a lawyer steeped in a belief in and understanding of the rule of law.
I now turn to explain why I believe that the Government’s complacency is unjustified. In 2004, in the case of Hirst v United Kingdom, the Grand Chamber of the European Court of Human Rights held that the blanket ban on any convicted prisoner being allowed to vote, imposed by the Representation of the People Act 1983, was incompatible with Article 3 of the first Protocol to the European Convention on Human Rights. In the subsequent appeals to the Supreme Court in the cases of Chester and McGeoch, Lord Sumption gave a lucid judgment that was critical of the reasoning of the Strasbourg court, but he observed:
“It is an international obligation of the United Kingdom under article 46.1 of the Convention to abide by the decisions of the European Court of Human Rights in any case to which it is a party. This obligation is in terms absolute”.
In his wonderful book The Rule of Law, the late Lord Bingham stated that,
“The rule of law requires compliance by the state with its obligations in international law as in national law”.
I suggest that it is beyond doubt that the rule of law requires this country to alter our law so as to afford the vote to at least some category of convicted prisoners so as to comply with the judgment in Hirst.
The response of the Government to this situation was to publish the Voting Eligibility (Prisoners) Draft Bill, which offered Parliament three options. The first was to give prisoners serving less than four years the vote. The second was to give prisoners serving less than six months the vote, and the third was to restate the blanket ban on prisoners voting. The first two options were designed to make our law Strasbourg- compliant. The third option would have involved Parliament deliberately flouting the decision of the Strasbourg court. There have been cases of countries failing to amend their laws to comply with Strasbourg judgments but none, of which I am aware, where a country has legislated expressly to defy a judgment of the Strasbourg court.
When the draft Bill was published, the Government announced that a Joint Committee of both Houses would be set up to give it pre-legislative scrutiny. Our remit was to advise which of the three options should be adopted or to propose an alternative option of our own. Had our remit been simply to advise whether or not any prisoners should be permitted to vote, untrammelled by the decision of the Strasbourg court, a majority might well have said no. But we concluded that it would not be right for Parliament to place the United Kingdom in breach of its international obligations. Agreeing with evidence given by the noble and learned Lord, Lord Mackay of Clashfern, we stated that,
“the principle of parliamentary sovereignty is not an argument against giving effect to the judgment of the European Court of Human Rights. … A refusal to implement the Court’s judgment would not only undermine the international standing of the UK; it would also give succour to those states in the Council of Europe who have a poor record of protecting human rights”.
We recommended that the right to vote should be conferred on all prisoners serving less than 12 months.
I suggest that respect for the rule of law should have led the Executive, and in particular the Lord Chancellor, to do their best to promote legislation that would bring this country into compliance with the convention. They should have promoted legislation that achieved this and done their best to get it through Parliament. Parliament might well have proved unwilling to follow the Government’s lead, but that is a consequence of the separation of powers. At least the Executive would have done their best to comply with the rule of law. I suggest that a Bill that put before Parliament an option to defy Strasbourg would not be appropriate.
When Chris Grayling came to give evidence to our committee, it became plain that he did not agree. He said that,
“my job is to offer Parliament the option. As you know, the job of the Lord Chancellor is to uphold the law. I have sought, in delivering a multiple-choice Bill, to fulfil my obligations to the law and, I believe, to Parliament as well. As to my own position, I intend to take advice at the time of the voting as to what my own particular situation is. I do not think there is any secret about what my opinion is in terms of this … I have an obligation as Lord Chancellor to uphold a decision of the courts. I take that responsibility very seriously. Equally, I have a responsibility to Parliament, which has already expressed a strong view on this matter. Therefore I have to exercise my judgment in thinking how best to address the issue, particularly given the legal advice from the Attorney-General, and indeed the legal view expressed by Lord Hoffmann … about these matters from, I think, 13 years ago … which said clearly that Parliament is sovereign in these matters … I formed the view that it was better to offer Parliament the option … but as to my own position, that is something I will take advice on at the time as to whether my oath of office or my obligations under the Ministerial Code constrain my actions”.
Could the Lord Chancellor have taken this laissez-faire approach had his oath included a promise to uphold as well as to respect the rule of law? I suggest not. Was it not for him to take advice as to how he should react to the Strasbourg court’s judgment in Hirst from the very outset rather than deferring the step until the time came for him to vote? He referred to the advice from the Attorney-General that Parliament was sovereign but, as the noble and learned Lord, Lord Mackay, stated, that is not the point.
I have explained why I do not find the Government’s response to the Select Committee’s report satisfactory. We now have a new Government and a new Lord Chancellor, and I hope that the Minister will convey to him a request that he give renewed consideration to the views and recommendations of the committee.
Criminal Justice and Courts Bill
Lord Phillips of Worth Matravers Excerpts(10 years, 7 months ago)
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Baroness Lister of Burtersett (Lab)
My Lords, like the noble Lord, Lord Deben, and the noble Baroness, Lady Campbell of Surbiton, I speak as a member of what was last week dubbed the sisterhood and brotherhood of non-lawyers. It is very important that non-lawyers speak in support of lawyers on these issues because, as the noble Baroness, Lady Hamwee, said at Second Reading of the Bill, “These are citizens’ issues”. We are talking about the most marginalised, powerless and voiceless citizens whose concerns are at stake.
I speak also as a member of the Joint Committee on Human Rights. We opposed the original clause on grounds of both principle and practice, including the argument put so powerfully by the noble Lord, Lord Deben, that we should not condone unlawful decision-making. This is of particular importance to the enforcement of the public sector equality duty, a point which has been made to us by the Equality and Human Rights Commission. I declare an interest as the honorary president and a former employee of the Child Poverty Action Group, which, as Sir Stephen Sedley has pointed out, was a pioneer in the use of judicial review to further the interests of children in poverty and their parents and played an important role in elucidating the law on social security to the benefit of everyone involved.
I will recount briefly a recent case that is relevant also to Motion D, in which the CPAG acted as an intervener. It was a judicial review against a decision to cut the funding for local welfare assistance schemes—which replaced the discretionary social fund—which we know, from a growing body of evidence, is causing real hardship. The decision has taken place without consultation and without first carrying out the review that had been promised to Parliament during the passage of the Welfare Reform Act 2012. As it happened, the Government settled the case—they clearly did not think that they would win it—and have now consulted. The CPAG’s solicitor said to me that if the Government’s version of the Bill becomes law, this intervention probably would not have been possible,
“because of the uncertainty around whether our charity would end up liable to pay costs. As a result, the Courts would have been ignorant of the broader issues at stake”.
Indeed, the case may not even have got permission because the Government might have argued that, even if they had consulted, their decision would have been highly likely to be the same. I hope that that does not prove to be the case. We do not yet know what the decision will be. However, in answer to a Written Question just the other day, I was told that they have had over 5,000 responses to that consultation. That is not a mere technicality; that is about listening to what local authorities and other citizens of this country think about this issue.
To echo the very powerful speech of the noble Lord, Lord Deben, at issue here are the accountability of the Government, the rule of law and access to justice—the very kind of principles that your Lordships’ House has traditionally upheld. I hope very much that your Lordships will uphold them again today.
Lord Phillips of Worth Matravers (CB)
The amendment proposed by the noble Lord, Lord Pannick, will do no more than bring the law into accord with the position as described, with apparent approval, by the Secretary of State for Justice in the other place. I hope the Minister will do what he has not yet done, which is to explain to this House why it is open to objection.
Criminal Justice and Courts Bill
Lord Phillips of Worth Matravers Excerpts(10 years, 8 months ago)
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Lord Cormack (Con)
My Lords, not for the first time, the noble Baroness, Lady Williams, has delivered a brilliant speech—a wonderful defence of Conservative values. I congratulate her on that. She made an extremely telling point when she talked about the politicisation of the judiciary in the United States.
I am very proud to be an honorary citizen of Texas, but when I was in Texas in 1984, at the time of the presidential election, I was invited to go to a $1,500-a-plate barbecue in aid of the man who was running for chief justice of Texas. I said to my congressman colleague, “We don’t do it like that in the UK, and I am bound to say that I am extremely glad of that”. I am very glad that that is still the case.
We have heard some outstanding speeches this afternoon. My noble friend Lord Deben was at his very best. We heard a very powerful speech from the noble and learned Lord, Lord Woolf, and a short, telling, moving speech from the noble Baroness, Lady Campbell of Surbiton, who was, in effect, speaking for the least of the little ones—to use a biblical phrase.
It is a pity that we are here again, because we have been around this course before in debates on the Bill. I had very much hoped that my noble friend who will be responding to the debate, for whom I have a genuinely high regard, would have been able to persuade the Lord Chancellor and others to have taken note of the telling points made in your Lordships’ House. I cannot help but wonder if the fact that we no longer have a distinguished lawyer as Lord Chancellor has something to do with it.
In his speech, the noble and learned Lord, Lord Woolf, talked about the significant and powerful difference between the words “must” and “may”. It is a disservice to our democracy to fetter the judiciary. Of course, they can sometimes be exceptionally tiresome. There is not a single Member of your Lordships’ House—other than, perhaps, those who are learned in the law—who has not been exasperated and annoyed from time to time by what judges have said, but the rule of law is what guarantees our liberties in this country. I am so glad that the noble Lord, Lord Lester, quoted from that brilliant book by Tom Bingham. We must not allow any Government to fetter the freedom of the judiciary.
I have mentioned Magna Carta before and I make no apology for mentioning it again. It was alluded to by the noble Lord, Lord Lester. Next year we shall commemorate Magna Carta and celebrate its 800th anniversary. Already, two of the barons who look down on us in this place have gone: one is gracing an exhibition of Victorian sculpture in the United States and the other is to guard the entrance to the British Library’s great exhibition devoted to Magna Carta next year. Much of Magna Carta is not relevant today, but its centrality is:
“To no one will we sell, to no one deny … justice”.
We are moving in that direction if we do not amend the Bill in this way. That is not a good way to commemorate and celebrate.
The Prime Minister has made a number of extremely powerful comments about Magna Carta, after the first unfortunate one on American television. He has said how crucial it is that we recognise the values encapsulated in that most seminal document in our constitutional history. For all the pettifogging, interference and annoyance that might be caused, one of the things that we have to defend is the right of people like the noble Baroness to take on the big powers and the establishment.
How much I agreed with my noble friend Lord Carlile of Berriew when he was talking about those infrastructure projects. I do not agree with him on the infrastructure projects—on some I do, on some I do not—but that is another matter entirely. I agree that there must be the opportunity to challenge. No Government should have the power to prevent such a challenge simply because it is inconvenient.
I hope that, in winding up, the Minister will be able to indicate that he has listened to the almost unanimous voice in this debate. I hope that, even at this late stage, he will do something—perhaps introducing an amendment at Third Reading—to recognise that the case made by the noble Lord, Lord Pannick, in his opening speech and the case made so very powerfully with such quiet effectiveness by the noble and learned Lord, Lord Woolf, has been listened to in government circles and will be heeded.
Lord Phillips of Worth Matravers (CB)
My Lords, if those in this Chamber who were opposed to these amendments at the start of this debate have not been converted by what they have heard, nothing that I can add is going to convert them. I simply say to the noble Lord, Lord Tebbit, that Parliament did not create judicial review; the judges did. It was, I hasten to say, before I became a judge and was one of the best things that our common-law judges have ever done. These amendments are designed to ensure that Parliament does not damage that which the judges created, and they deserve the support of this House.
Baroness Kennedy of The Shaws (Lab)
My Lords, I know that there is always a sigh in this House when a debate is dominated by lawyers. However, I remind the House that sometimes it is lawyers who know the pain that citizens in our country experience, because we represent them, and that this is about the actual lives on which judicial review has an impact. It is always about the person whose business is to be closed down from trading, based on a department’s or a local authority’s decision that they want to challenge, or the person whose mother is in a care home and suddenly finds that it is being moved or closed down, with no consultation as to the impact on her and her family. It may be about the effect on a disabled child of a decision about their schooling. Those things are about real people’s lives and that is why this is not just a constitutional debate of high flown words or complicated legality—it is about the real impact on the lives of ordinary people.
When your Lordships come to vote in our Lobbies, as I am sure you will be asked to do, I say to those of you who are not lawyers that this is really about people’s lives and about the law coming into play to protect citizens. That is why lawyers and organisations such as the Bar Council, the Law Society and Justice—cross-party and no-party organisations—know why the rule of law matters in our nation and our democracy. This is not, I say to the Minister’s noble friend Lord Tebbit, about judges somehow usurping the power of Parliament. This is about justice, fairness and the things that we hold dear, so I say to my colleagues in this House who are not lawyers that this is not a festival of lawyering. It is about ordinary people.
Criminal Justice and Courts Bill
Lord Phillips of Worth Matravers Excerpts(10 years, 8 months ago)
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Lord Carlile of Berriew (LD)
My Lords, we have heard three very powerful speeches from noble Lords—and noble and learned Lords in two cases—on the Cross Benches, and I anticipate that we are about to hear another one in a moment. We also heard a powerful intervention from a former Home Secretary, who is one of the most admired figures in British politics in the last 40 years. I cannot improve on what they have said, and will not try to do so. All I want to say, speaking as I do from one of the political Benches in this House, is that this is an issue upon which those of us who sit on political Benches are entitled to, and should, exercise our consciences. If we engage our consciences, the extraordinary speech from the noble and learned Lord, Lord Lloyd of Berwick, completely wins the day. I therefore hope that noble friends, as well as those elsewhere in the House, will see that if this matter divides the House, the only course they can take is to support this amendment.
Lord Phillips of Worth Matravers (CB)
My Lords, the unhappy cohort of prisoners to which this amendment relates linger in prison years after they have completed terms of imprisonment that reflect their culpability. They linger because of a statutory presumption that they are dangerous, which is discredited, has been repealed, and is surely, in the cases of many of them, unjustified. I find it impossible to envisage any credible reason why the Secretary of State has not exercised the power that he has been given to procure their release. His inertia belies the title of Secretary of State for Justice. This amendment cries out for the support of the House.
Lord Wigley (PC)
My Lords, I apologise for having missed the first two minutes of the speech of the noble and learned Lord, Lord Lloyd, in moving this amendment. As he and the Minister may well be aware, this subject has been exercised me considerably over many months now, having seen cases arising in Wales, and we had a debate on this matter earlier this year. I pay tribute to the way in which the noble and learned Lord, Lord Lloyd, has persevered with this important battle, by now over many months and years. The facts that he has put before the House this afternoon should most certainly be of concern to anyone who takes an interest in matters of law and who is concerned about the good name of the UK’s judicial system. The case is valid for the whole cohort, but I very much hope that, at least in the limited number of instances he has quoted, where very little risk is at stake, there can be no possible argument, even from the Government’s own standpoint, for not making progress on this matter. I follow the plea made by the noble Lord, Lord Carlile, that noble Lords of all parties across this House take this issue to heart. I very much hope that colleagues on the Labour Benches will stand up and be counted on this matter.
Criminal Justice and Courts Bill
Lord Phillips of Worth Matravers Excerpts(11 years ago)
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Lord Davies of Stamford (Lab)
My Lords, I hope that the noble and learned Lord, Lord Lloyd, was right when he said that he did not believe that any member of the Government had ever wished that the right of review for whole life prisoners should disappear. He may well be right, and I would be the last person to wish to challenge his generosity, but I have seen at very close quarters in the course of my political career how really fundamental legal principles can be eroded under the pressure of electoral and demagogic—I can use no other word—considerations. It is enormously important for us in the House of Lords, who are less prone and less open to those pressures than Members of the other place, to be very clear in our minds about the legal principles on which we really do wish to take our stand and which we think are foundational for our legal system.
I support this splendid amendment on the three grounds that have already been touched on in one way or another by those noble Lords who have spoken to it. One is that it undoubtedly increases the humanity, and therefore the justice, of our legal system, which, after all, has been inspired over the centuries by the Christian idea of forgiveness, as well as by other Christian concepts
It also contributes to the efficiency and efficacy of our penal system, because no penal system can really work properly unless it is committed to the concept of rehabilitation. If rehabilitation is excluded or irrelevant for certain classes of prisoner, because nothing they do and no transformation of their character or behaviour can earn them any kind of release, then there is no rehabilitation for some prisoners and rehabilitation therefore ceases to be a general principle that is observed by the penal system in relation to all its prisoners as a matter of course. That leads to a degradation of the spirit and the culture of the penal system concerned, which would be extremely undesirable.
Thirdly, I very much share the view that has already been expressed that it is very important that other penal, legal decisions about the review of prisoners should be taken by independent judicial or quasi-judicial bodies—for this purpose, I accept that the Parole Board falls into that category—and under no circumstances, for the reasons that I mentioned at the outset of my intervention, by a member of the executive branch of government, open to pressures from Back-Benchers, the Daily Mail and God knows who else.
This amendment is extremely timely and I wholeheartedly agree with the view that has already been expressed that the responsibility now lies with Parliament to clarify the law, to make it absolutely clear what we believe the law should be in this particular matter, not to leave matters to the vagaries of jurisprudence, given the considerable uncertainty that has already been created, certainly in my mind, by the Minister’s statement that it is possible to interpret “compassionate” as including all sorts of issues relating to the conduct of the prisoner as well as the prisoner’s health. We are going down a route that would lead to greater uncertainty for the law and therefore greater injustice, which would be extremely undesirable. We have the opportunity to legislate clearly in this House this afternoon and we should take it.
Lord Phillips of Worth Matravers (CB)
My Lords, I support this amendment. In Vinter, the Grand Chamber of the Strasbourg court made it plain that a whole life sentence that had no possibility of review, however long the defendant might be detained in prison, constituted inhuman treatment contrary to Article 3 of the convention. In explaining its decision, the Grand Chamber said at paragraph 112 that,
“if such a prisoner is incarcerated without any prospect of release and without the possibility of having his life sentence reviewed, there is the risk that he can never atone for his offence: whatever the prisoner does in prison, however exceptional his progress towards rehabilitation, his punishment remains fixed and unreviewable. If anything, the punishment becomes greater with time: the longer the prisoner lives, the longer his sentence”.
That passage echoes the observations of the noble Lord, Lord Marks, which I endorse.
The Strasbourg court held that the discretionary power of the Secretary of State to release a whole life prisoner under Section 30 of the Crime (Sentences) Act 1997 did not satisfy the requirement of Article 3 because of uncertainty as to when the Minister would be required to exercise that power. In so holding, it differed from a decision of the Court of Appeal in Bieber, over which I had presided, but as the House has heard, the Criminal Division of the Court of Appeal presided over by the Lord Chief Justice has recently disagreed with the Strasbourg court on this point in the case of McLoughlin.
The Court of Appeal said this about the duty of the Secretary of State:
“First, the power of review under the section”—
that is, Section 30 of the 1997 Act—
“arises if there are exceptional circumstances. The offender subject to the whole life order is therefore required to demonstrate to the Secretary of State that although the whole life order was just punishment at the time the order was made, exceptional circumstances have since arisen. It is not necessary to specify what such circumstances are or specify criteria; the term ‘exceptional circumstances’ is of itself sufficiently certain”.
The court went on:
“Second, the Secretary of State must then consider whether such exceptional circumstances justify the release on compassionate grounds … Third, the term ‘compassionate grounds’ must be read, as the court made clear in R v Bieber, in a manner compatible with Article 3. They are not restricted to what is set out in the Lifer Manual. It is a term with a wide meaning that can be elucidated, as is the way the common law develops, on a case by case basis … Fourth, the decision of the Secretary of State must be reasoned by reference to the circumstances of each case and is subject to scrutiny by way of judicial review”.
One suspects that the Secretary of State may not relish being required to exercise this discretion; nor is it appropriate that the discretion should be exercised by a member of the Executive, as the noble Lord, Lord Pannick, has explained. This amendment would transfer the relevant decision to the Parole Board and define the circumstances in which it would fall to be exercised, with a precision that should satisfy the Strasbourg court.
Lord Ramsbotham
My Lords, I support the amendment and in particular the intervention made by the noble Lord, Lord Marks. In doing so, I remind the Committee of one group of people whom I mentioned during the debate to which my noble and learned friend Lord Lloyd referred. I refer to prison staff. I am glad that the noble Lord, Lord Marks, mentioned the word “hope”, because when I inspected prisons in which full life tariff prisoners were held, their governors made the point to me that the fact that those cases could be reviewed, which was not necessarily the same as that they might be released, gave the prisoners hope and therefore enabled them to conform with the prison regime. That was vital for the purposes of the prison staff who had to maintain the regime. It is important in considering this that the role of the staff should not be forgotten.
Lord Phillips of Worth Matravers
My Lords, I had the good fortune a week ago to enjoy a superb production of “Fidelio” at Garsington. “Fidelio” is an unusual opera, as it has a happy ending, when miserable prisoners, unjustly detained, are released on the orders of the minister of state. Many have been waiting for the Secretary of State for Justice to procure the release of a relatively small category of prisoners whose continued detention is a flagrant violation of the demands of justice. They are the IPP prisoners who, despite having received relatively modest tariff sentences, were deemed to be dangerous under a statutory presumption that has since been discredited and abolished. Years ago, they completed the terms of imprisonment that were appropriate for their offences. Their continued detention today is shameful. The amendment should not be necessary, and one hopes that the Lord Chancellor will take the necessary action to demonstrate that it is not.
Lord Ramsbotham
My Lords, in supporting my noble and learned friend Lord Brown and saluting my noble and learned friend Lord Lloyd on his determined and tenacious momentum on this issue, I want to say just one thing. I am amazed that the Government are not tabling this amendment. As the noble Lord, Lord Wigley, mentioned, £40,000 a year for 773 prisoners is £35 million per year. If you have an overstretched and underresourced Prison Service, surely it makes sense to examine where you could make savings to put the money to better effect, rather than spend it on prisoners who should not be there. I fail to understand why, in the face of all the arguments, all the legal statements and all the evidence, plus the legislation passed in 2012, the Government have not taken the common-sense step of approaching this forcefully themselves.
Legal Systems: Rule of Law
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Lord Phillips of Worth Matravers (CB)
My Lords, one of the first visitors that I had when the Supreme Court opened its doors in 2009 was Andrew Li, the Chief Justice of the Court of Final Appeal in Hong Kong. He had come to ask me whether I would permit two justices of the Supreme Court to spend a month each year sitting as non-permanent judges of his court. I hesitated for a moment, wondering whose permission I should seek in relation to this request, and then I realised that there was no one. I was truly independent. It was a rather heady moment and I unhesitatingly agreed. Could there be any better contribution to the rule of law than to export two members of the United Kingdom Supreme Court to buttress the independence and standing of the impressive Court of Final Appeal in Hong Kong?
My successor, the noble and learned Lord, Lord Neuberger, not only endorsed my decision but goes himself to sit in Hong Kong in the long vacation. There are now no fewer than seven Members of this House, of whom I am one, who sit each year in the Hong Kong court in China. That is really rather remarkable, and there is no better illustration of the worldwide impact of English law and English lawyers. Another illustration is the recent invitations by Mauritius and the Bahamas, at their expense, to the Judicial Committee of the Privy Council to go and sit in their countries, thus demonstrating their devotion to the rule of law.
Last Thursday, this House debated the importance of the manufacturing industry to this country. Today, thanks to the initiative of my noble and learned friend Lord Woolf, we have the opportunity to consider the contribution that English law and English lawyers make not merely to this country but to the world. My noble and learned friend Lord Woolf himself exemplifies that contribution. As the House heard, on his retirement as Lord Chief Justice he was immediately invited by the Emir of Qatar to set up an international commercial court in Doha—where, as on other occasions, I have followed in his footsteps.
That was not the first such court in the Middle East. In 2004, Dubai set up an English language court, applying common law in the resolution of commercial disputes. The first Chief Justice of that court was Sir Anthony Evans, a distinguished commercial judge who had sat in the English Court of Appeal. These courts are an indication of the high regard in which English commercial law and English commercial lawyers are held around the world, and my short speech will focus on commercial law.
The most remarkable development during my life in the law has been the growth of English commercial lawyers. When I started at the Bar some 50 years ago, there was a handful of commercial Silks who appeared in the commercial court and occasionally on what was known as the Hong Kong circuit—the courts of Hong Kong, Malaysia and Singapore.
When I joined Admiralty Chambers, then situated at 2 Essex Court, we had only one Silk, and when 10 years later I moved to 1 Brick Court we had only two. Now, Quadrant Chambers, the successor to 2 Essex Court, has 19 Silks and Brick Court Chambers no fewer than 36. Barristers from these and similar sets of chambers are appearing not merely in the courts of this country but in arbitrations around the world where contracts governed by English law are being arbitrated. Today, we have heard from the legal globetrotter, the noble Lord, Lord Pannick, about his many appearances around the globe.
Several sets of chambers have set up satellite chambers in Maxwell Chambers in Singapore as a base for operating there. Today, the influence of English law and English lawyers in dispute resolution is largely latent because the resolution is taking place in private arbitrations.
The growth of City of London law firms has been even more remarkable. Fifty years ago, these were modest partnerships. Indeed, the number of partners was limited by law. All the partners knew each other well. The large international law firms were based on Wall Street. For 2013 the annual report of Clifford Chance records that the average number of partners during the year was 411. That firm is but one of a number of giant law firms that have their base in London, but the offices of these firms are to be found in almost every major trading city of the world.
What is the explanation for the international pre-eminence of English commercial law and lawyers? I believe that it is twofold. English law is attractive to commercial men because much of it has been custom-made by outstanding common-law judges, often sitting in the Appellate Committee of this House, who cut their judicial teeth in our world-famous Commercial Court. Today, 50% of the contracts concluded around the world are governed, by the choice of the parties, by English law.
The other is the recognised integrity of English lawyers, which owes much, I believe, to the influence of the Inns of Court and the Law Society, and to the importance accorded to the rule of law in this country which Parliament and the Executive must never cease to respect and uphold. We should all be grateful to the noble and learned Lord, Lord Woolf, for underlining the importance of this.
Prisoners: Indeterminate Sentences
Lord Phillips of Worth Matravers Excerpts(11 years, 3 months ago)
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Lord Phillips of Worth Matravers (CB)
My Lords, I am grateful to the noble Lord, Lord Wigley, for providing the opportunity to say a few words on this topic, which is close to my heart.
A little over six years ago, when delivering the judgment in the Court of Appeal in the appeals of Walker and James, I commented that the Secretary of State had not provided the resources needed to give IPP prisoners a fair chance to demonstrate to the Parole Board, once the time for review arrived, that they were no longer dangerous. I added that the consequence of that was that a proportion of IPP prisoners would, avoidably, be kept in prison for longer than necessary either for punishment or for the protection of the public. Since then, Parliament has repealed the provisions for the imposition of IPP sentences. However, as predicted, a significant body of prisoners remain incarcerated because they have been denied the opportunity to take the steps necessary to demonstrate that their release will not pose an unacceptable risk to the public.
There are at least three reasons why that state of affairs should not be tolerated. The first is that indefinite detention of that kind infringes Article 5.1 of the European Convention on Human Rights. That possibility was one to which we drew attention in Walker although we, and the Appellate Committee of this House, presided over by my noble and learned friend Lord Hope of Craighead, did not consider that that point had been reached in the instant case. However, as the noble Lord, Lord Wigley, pointed out, Strasbourg did not agree, holding in the case of James and two other applicants that their detention after the expiry of their tariff periods and until the provision of the appropriate rehabilitative courses was arbitrary and a breach of Article 5.1. Not all may be in sympathy with that decision, but indefinite detention for want of resources is manifestly objectionable.
The second reason why the current state of affairs should not be tolerated is that it is unjust. Defendants sentenced before the IPP regime was introduced or after its repeal, whose offending and past criminal records are not distinguishable from those sentenced to IPP, are being released from prison while the IPP prisoners remain detained. It is hard to understand why the change in penal policy that led to the abolition of the IPP sentence should not apply equally to those subjected to it.
The third reason why the current state of affairs should not be tolerated is that it is economically absurd. We pay some £40,000 per head to keep detained prisoners who will then become entitled to substantial compensation for their detention.
What, then, should be done? One can readily appreciate the objection to the wholesale release of all IPP prisoners who have served the tariff period. However, the noble and learned Lord, Lord Lloyd of Berwick, will make some balanced and principled proposals for the release of some of those prisoners, which have my support. I shall leave him to explain them to the House. There will, of course, be a risk that prisoners released will reoffend, but that is an inevitable consequence of release from custody, and one that has rightly concerned the Minister for Justice and his predecessors, not merely in the context of potentially dangerous offenders.
Three years ago Kenneth Clarke, when Justice Secretary, declared that prison was a waste of money and emphasised his intention to curb reoffending. Earlier this week Chris Grayling, the current Justice Secretary, was reported as saying that our rehabilitation system was flawed because of lack of support for those discharged from prison. That is the positive point that I wish to make.
Rehabilitation courses in prison are, of course, important. However, perhaps even more important are the steps that should be taken outside prison, in the community, to prevent young people who are at risk from entering the criminal justice system and to help those who have been discharged from prison from being sucked back into it. Rehabilitation can sometimes be provided more effectively in the community after discharge from prison than within the prison system. James was himself ultimately released on licence on the directions of the Parole Board in reliance of the fact that arrangements had been made for his accommodation in a hostel and for him to take part in rehabilitation courses in the community.
I should declare my involvement with three different organisations in the private sector whose work is relevant in this context: Endeavour Training, Youth at Risk, and the St Giles Trust. The first two aim to give young people who are vulnerable the self-respect that leads to respect for others and to integration within rather than outside society. The third, the St Giles Trust, trains ex-offenders to help others, both within and outside prison. I understand that it is government policy to rely heavily on the help of such organisations to prevent reoffending and that funding will be made available to those with a proven success rate. It is easier to demonstrate this for organisations that cater for those who have served prison sentences rather than those whose goal is to ensure that vulnerable young people do not enter the system in the first place, but I hope that the Government will bear it in mind that resources provided to both are likely to save money in the long term. I suggest that this is the lesson to be learnt from the IPP debacle.
The huge cost of keeping people in prison competes for resources with the cost of trying to keep them out of prison. The former always appears the more urgent. But whether offenders are potentially violent or not, society will be best served, and valuable resources will ultimately be saved, if we do not skimp in funding the steps that are needed to address the individual problems and inadequacies that are the root causes of the majority of offending and reoffending.
Anti-social Behaviour, Crime and Policing Bill
Lord Phillips of Worth Matravers Excerpts(11 years, 5 months ago)
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Lord Wigley (PC)
My Lords, I, too, support Amendment 94E, moved by the noble Lord, Lord Pannick, which would correct a provision in the Bill which could make it almost impossible for those who have suffered miscarriages of justice to gain compensation for their time spent in prison.
At present, the test for compensation in cases where a miscarriage of justice has taken place is that a jury could not, beyond reasonable doubt, find them guilty of the crime, perhaps because of new evidence that has come to light or evidence that has been disproven. Looking to the case law which forms the basis of the current test, Lord Bingham argued in the Mullen case that, based on Article 14.6 of the International Covenant on Civil and Political Rights, a miscarriage of justice occurs not only when a person can be proven to be innocent but in cases where it is possible to say that an individual has been wrongly convicted because of,
“failures of the trial process”.
The Supreme Court adopted this view in the Adams case. The Divisional Court stipulated in the Ali case that an individual should be required to prove,
“beyond reasonable doubt, that no reasonable jury (or magistrates) properly directed as to the law, could convict on the evidence now to be considered”.
If Clause 161 of the Bill before us today is passed unamended, it would return the law to a narrower definition of miscarriages of justice, such that the individual has to prove that,
“the new or newly discovered fact shows beyond reasonable doubt that the person was innocent of the offence”.
This places a heavier burden of proof on the individual, as he or she must prove their innocence of a crime years or perhaps even decades after that crime has been committed and when they have already served a portion of their sentence. This would result in individuals who have already suffered wrong at the hands of our justice system being denied access to compensation for that wrong. In practical terms, it would be virtually impossible for these individuals to prove their innocence since they are in effect being asked to prove a negative: that they did not commit acts that would have made them guilty of the offence.
Justice has pointed out that the cases of the Birmingham Six, the Guildford Four, the Maguire Seven, the Cardiff Three and Judith Ward would not have satisfied the innocence test proposed by the Government. It is also worth remembering that the rule of thumb when awarding compensation in these cases is that the individual should expect to receive roughly the same amount as they would have missed out on in lost earnings for the time they spent in prison. The Bill would impoverish these wronged individuals and that, surely, cannot be right. Amendment 94E, which I am glad to support, would instead reinsert the test currently used by courts in determining whether a miscarriage of justice has occurred; that is, that the evidence against the person at trial is so undermined that no conviction could possibly be based on it.
I remind noble Lords that the presumption of innocence is a long-standing principle of our criminal justice system. As Liberty has said, it is a key safeguard. For in cases where the state prosecution cannot provide evidence that proves beyond reasonable doubt that a defendant is guilty, a court cannot convict that individual of an offence. Liberty says:
“The criminal law, through the presumption of innocence, accepts that sometimes individuals will not be convicted even though it is not 100% certain that they were innocent: it is guilt that must be proven”.
If the Government introduce this highly significant change to our criminal justice system, it will undermine this fundamental principle, since individuals would never have had to prove their innocence in the original criminal trial. I urge noble Lords on all sides of the House to support Amendment 94E and to signal to the Government that they cannot introduce such a reckless change.
Lord Phillips of Worth Matravers (CB)
My Lords, it will occasion no surprise that I support this amendment, nor perhaps need I declare my obvious interest as the author, in my judicial capacity, of the definition of miscarriage of justice that it supports.
The amendment has been recommended by the Joint Committee on Human Rights, which has advanced two reasons for supporting it. The first and lesser reason is that, in determining whether there has been a miscarriage of justice as defined in the amendment, the Secretary of State, or the courts in reviewing her decision, will not have to infringe the presumption of innocence that is required by Article 6.2 of the European Convention on Human Rights. This is not true of the definition proposed in the Bill. The second and more compelling reason is that the definition in this amendment better meets the requirements of justice than the definition proposed in the Bill.
I will deal first with the effect of Article 6.2 of the human rights convention. Article 6 provides for the right to a fair trial. Article 6.2 provides:
“Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law”.
On the face of it, this is no more than a rule of criminal procedure that has long been part of our law: the burden of proving guilt is on the prosecution. Indeed, the Strasbourg jurisprudence recognises that the primary effect of Article 6.2 is to impose this procedural rule. But the Strasbourg court has identified what it has described as “a second aspect” of Article 6.2, which applies to protect individuals after they have been acquitted in a criminal trial. Shortly summarised, the second aspect prohibits public officials and authorities, including courts, from suggesting that a person who has been acquitted of a criminal charge is, or may be, guilty none the less.
Crime and Courts Bill [HL]
Lord Phillips of Worth Matravers Excerpts(12 years, 6 months ago)
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“Chief Executive of the Supreme Court of the United Kingdom
(1) The Constitutional Reform Act 2005 is amended as follows.
(2) For section 48(2) (chief executive), substitute—
“(2) The President of the Supreme Court shall appoint the Chief Executive in accordance with the arrangements for the time being in force for the selection of persons to be employed in the civil service of the State.”
(3) In section 49(2) (officers and staff), omit the words “with the agreement of the Lord Chancellor.””
Lord Phillips of Worth Matravers
My Lords, I apologise for the fact that I was not able to be present to move a similar amendment on Report, but I could not have improved on the explanation of its merits given then to the House by the noble Lord, Lord Pannick. The amendment is needed to remedy two anomalies in the Constitutional Reform Act 2005, which, in its present form, impacts adversely on the independence of the Supreme Court.
The first anomaly arises from the terms of Section 48(2) of the Act, which provides that the Lord Chancellor must appoint the chief executive after consulting the president of the court. The effect of the amendment is to make the president of the Supreme Court, rather than the Lord Chancellor, responsible for the appointment of the chief executive of the court. The amendment is appropriate because the Act expressly provides that the functions of the chief executive of the Supreme Court are to be carried out in accordance with the directions of the president of the court. Those functions include the non-judicial functions of the court in so far as the president delegates them to the chief executive.
More generally, the Act requires the chief executive to ensure that the court’s resources are used to provide an efficient and effective system to support the court in carrying on its business. The president and chief executive of the court work in partnership to ensure that the court operates efficiently. Under Section 50 of the Act, the Lord Chancellor is responsible for ensuring that the court has the resources that he thinks are appropriate to enable the court to carry on its business, but he has no role under the statute in relation to the manner in which the court is run. This is quite deliberate. The whole object of the creation of the Supreme Court was to make sure that it was, and was seen to be, independent of the legislature and the Executive.
The chief executive is the accounting officer of the Supreme Court and, as such, reports not to the Lord Chancellor but direct to Parliament in accordance with Section 54 of the Act. This requires the chief executive to prepare a report after each financial year, which the Lord Chancellor is required to lay before each House of Parliament.
The first danger of the provision that the chief executive be appointed by the Lord Chancellor is that the Lord Chancellor, when making the appointment, will be concerned to appoint a candidate who will have regard to his wishes when deciding on the administrative arrangements of the court. Let me make it plain that there is no suggestion that this consideration influenced the appointment of the first chief executive of the court. The noble Lord, Lord Pannick, explained to the House how she was appointed by an ad hoc commission that included three Law Lords, under the chairmanship of a Civil Service commissioner. There is no complaint about what happened on that occasion. That process resulted in the appointment of Jennifer Rowe. I take this opportunity to recognise the admirable way in which she has performed her duties under my presidency, and to confirm that she is rightly recognised as deserving much of the credit for the successful birth and early years of the Supreme Court.
The second danger of the provision is that, because the Lord Chancellor appoints the chief executive, the chief executive will be expected to defer to the wishes of the Lord Chancellor in relation to the manner in which the Supreme Court is managed. Such an interpretation of the Act might not seem unreasonable. After all, the Lord Chancellor is to provide the court with such resources as he thinks are appropriate for the court to carry on its business. Why should he then not have a say in how those resources are used? The answer is of course that this would be in conflict with the objective of the creation of the Supreme Court, which was to give effect to the separation of powers. Lest there be any doubt about this, perhaps I may remind the House of what the noble and learned Lord, Lord Falconer, the then Lord Chancellor, said to the House on 14 December 2004, when bringing forward the amendments which became the governance sections of the Constitutional Reform Act. He said:
“The chief executive will be able to allocate resources as he considers appropriate to ensure an effective and efficient system to support the court in carrying out its business. In other words, the chief executive will be solely responsible for the administration of the court, in accordance with directions from the president, and will be free from ministerial control”.—[Official Report, 14/12/04; col. 1237.]
The danger that there will be a perception that the chief executive should defer to the wishes of the Lord Chancellor is a real one. I must tell the House that during my presidency it was made quite clear to me that those who served in the Ministry of Justice at all levels were of this view. It made relations with the Ministry of Justice difficult. When responding on Report to the noble Lord, Lord Pannick, the Minister, the noble Lord, Lord Ahmad of Wimbledon, said that,
“the Government retain a fundamental concern with regard to accountability and proper lines of accountability which need to be established so that the elected Government are responsible for the proper fiscal and managerial operation of the court”.—[Official Report, 4/12/12; col. 653.]
Far from justifying the Government’s opposition to the amendment, that statement underlined its desirability, for the chief executive of the Supreme Court is accountable not to Ministers but to the president of the court and to Parliament.
The second anomaly that the amendment is designed to cure arises from the terms of Section 49(2) of the 2005 Act, which requires the chief executive to obtain the agreement of the Lord Chancellor on the number of officers and staff of the court, and on the terms upon which they are to be appointed. The staffing needs of the court are quite complex. They include security officers; secretaries for the justices and administrators; librarians; judicial assistants; operators of the television system that provides live coverage of the proceedings of the court; the staff of the communications department; cleaners; and the staff of the public cafeteria. It makes no sense at all for the chief executive to be required to obtain the consent of the Lord Chancellor, through his officials, on the number and terms of employment of this diverse staff complement. These are matters which pre-eminently should be decided by the chief executive, working in consultation with the president, who himself will be in a position to obtain the views of the other justices as to their needs. There is nothing useful that the Lord Chancellor’s officials can add. Furthermore, the requirement to obtain the consent of the Lord Chancellor to these matters detracts from the independence, and the appearance of independence, of the Supreme Court, which was the objective of its creation. On Report, the noble Lord, Lord Pannick, did not press this amendment on the understanding that it raised a live issue that was subject to ongoing discussions in which the president of the court was involved.
This morning, the president, the noble and learned Lord, Lord Neuberger, informed me that these discussions had not borne fruit and that, in particular, he had been given no justification for the present form of the relevant provisions in the 2005 Act. Shortly before I came into the Chamber, I received on my BlackBerry a copy of a letter written by the Lord Chancellor to the noble and learned Lord, explaining that the Government would not be in a position to agree to the amendment because further time was required to consider its implications. I am not at present persuaded that there is any need for further time, but I look forward to hearing what the Minister has to say about this in due course. I beg to move.
Lord Pannick
My Lords, perhaps I may add two points to what the noble and learned Lord, Lord Phillips of Worth Matravers, said. The first is to inform your Lordships that the chairman of your Lordships’ Constitution Committee, the noble Baroness, Lady Jay of Paddington, whom I am pleased to see in her place today, wrote to the Minister on 10 December stating the committee’s support for the amendment on the basis that,
“it is not constitutionally appropriate”,
for the Lord Chancellor to retain his present functions in relation to the appointment of the chief executive of the Supreme Court and in relation to the deployment of the court’s staff.
The second point that I want to emphasise is that allowing the Lord Chancellor to retain these functions is impossible to reconcile with the Supreme Court being seen as independent of the other organs of government. The need for the Supreme Court to be seen as independent was the main reason why it was created by the 2005 Act and why the Law Lords left this place. It is of especial importance that the administration of the Supreme Court is seen to be independent of the Executive when the Executive are the respondent in a very a large proportion of the cases heard by the Supreme Court. This amendment is of constitutional importance; the arguments in its favour are simply overwhelming.
Lord Phillips of Worth Matravers
My Lords, I am grateful to those who have supported the amendment and to the Minister for the exquisite politeness with which he has responded to it. I also commend his eloquence, for I confess that before he stood up it was my intention to seek the opinion of the House on this matter. However, he has persuaded me that there is merit in permitting discussions, which he has repeatedly emphasised are ongoing and very real, to continue without that impetus. Accordingly, I beg leave to withdraw the amendment.
Crime and Courts Bill [HL]
Lord Phillips of Worth Matravers Excerpts(12 years, 8 months ago)
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Lord Phillips of Worth Matravers
My Lords, I endorse everything that has been said thus far in criticism. In my time, I have acted as a sentencer and done a touch of community service. As I understand it, the requirements referred to in the amendment are the requirements under Section 177 of the Criminal Justice Act 2003 that can be made when a community order is imposed. As the noble and learned Baroness, Lady Butler-Sloss, has said, they all require the offender to do something which he or she would otherwise probably not choose to do, so they all have an element of punishment or sanction.
How is this amendment to work? Is the sentencer to be bound to impose one of the requirements by way of a community order exclusively by way of punishment or does the sentencer merely have to say, “I am imposing this not merely for the purpose of rehabilitation but also to punish you”? If it is the latter, the effect is purely cosmetic. If it is the former, the effect, I would submit, is even less desirable.
Baroness Howe of Idlicote
My Lords, I support the approach of my noble friend Lord Ramsbotham to the whole of this schedule. We have been over this ground before. As the noble and learned Baroness, Lady Butler-Sloss, has pointed out, punishment is in the sentence. The important scenario is how that sentence is to be worked out for the rehabilitation of the offender, with the effort being to see that that offender does not return to the court. As we all know, all too often that is not the case.
My other concern is that we have had no result—again, this was mentioned by my noble friend Lord Ramsbotham —from the Government on the probation consultation. For us to be asked to make judgments at this stage without having in front of us all the facts about who will do a lot of this very necessary, specialised work, is not acceptable. Frankly, I do not want any of the alternatives that have been suggested but, if others are prepared to keep this whole section in and I had to choose, I would go for that suggested by the noble and learned Lord, Lord Woolf. Then it would be left to the judges to make the decision, which is the way in which we have in the past treated, and should continue to treat, the judicial system.