Legal Systems: Rule of Law
Lord Phillips of Worth Matravers Excerpts(10 years, 5 months ago)
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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(10 years, 8 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(10 years, 11 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 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, 1 month 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.