Legal Aid, Sentencing and Punishment of Offenders Bill

Lord Scott of Foscote Excerpts

Monday 16th January 2012 Lords Chamber

[Lord Thomas of Gresford]

My Lords, the problem for many lawyers is that we so often look into the past. Common lawyers in particular try to piece together what has happened before. Consequently, we tend always to look for evidence to support our interpretation of events. I certainly share that problem, but I have also had some experience of running an independent local radio company. During that time I realised the great difference between businesspeople and lawyers. Businesspeople have to take decisions about the future, and they can do that only on limited information.

In this instance, the Government have had to take a decision; it has been forced upon them. To adopt a phrase first used by the noble Lord, Lord Elystan-Morgan, 50 years ago, “The Visigoths were at the gates”. It was therefore necessary to decide how best we can cut the deficit and how, in this instance, legal aid should share that burden. This is an issue which I think I raised with Ministers before the Bill came here—I certainly referred to it in my Second Reading speech—and I have had further discussions since. When taking decisions about the future, one has to have flexibility when the future happens. One has to be able to adopt what was decided at one moment in accordance with experience.

This is an instance of that. Some of the prognostications that we have heard from the lawyers around this place—and there have been a lot of “mays” and “what is likely to happen” and so on from lawyers—might happen in the future, in which case the provision of legal aid will have to change. The changes might be positive and legal aid granted more widely. It is therefore essential that the Lord Chancellor has the power to add back into the scope of legal aid matters that prove not to be profitable in the way that the Bill envisages. There are not the alternatives that the Minister speaks of for dealing with various legal issues and the very important question of access to justice. That is why I am speaking to Amendment 25 in my name. This is a very positive way in which the Minister can demonstrate that the Government will be flexible in this area, will listen to the concerns that are voiced in the Chamber and will adapt the Bill accordingly.

[Lord Scott of Foscote]

My Lords, I support strongly the amendment proposed by the noble Lord, Lord Faulks, and the other amendments in the same spirit. It is important in considering the merits of the amendments that we bear in mind the purpose of a civil justice system. I suggest that a country is not entitled to regard itself as civilised unless it has a proper, workable system for the administration and attainment of civil justice. I spent my professional life working in the civil justice system. Of course, the criminal justice system has its own imperatives, but a civil justice system whereby individuals can obtain remedies or resist attempts to obtain remedies against them is of critical importance if our country is to retain the status that it has earned over many years of being a civilised country in which it is a pleasure to live.

[Baroness Kennedy of The Shaws]

My Lords—

[Lord Scott of Foscote]

I beg your pardon. That might have sounded like a peroration but I am afraid it was only a beginning. Cutting down on legal aid might be very necessary for cutting the deficit, but it must not be allowed to get to a stage where it imperils the adequacy of the civil justice system.

A plethora of litigants in person is not an ornament to a civil justice system but a reproach. I was a judge for many years, and on many occasions litigants in person appeared before me, sometimes as plaintiffs and sometimes as defendants. It is never a satisfactory means of conducting a trial. Every judge wants to come to the correct conclusion if they can, and every judge must bear in mind that one party is going to lose and must leave the court feeling that he or she has had justice. Where there is a litigant in person, the judge cannot avoid appearing to be on the side of that party. The litigant in person usually does not know how to put their case or the best arguments for the propositions that they are advancing, so the judge will step in and examine them on behalf of the litigant in person. That is fine for the purpose of obtaining justice but does no good in persuading the party on the other side, who has listened to his or her lawyers attempting to argue against the judge, that this is an appropriate means of obtaining a just result. That is the effect of producing a state of affairs in which one or other party cannot afford access to justice through the remedy of employing lawyers to appear in the case.

It is of very great importance, if the Minister is to have the power to remove areas of eligibility for legal aid or to add areas where there should be legal aid, that both those forms of executive law-making should be associated with the requirement for an affirmative resolution from each House, as the noble Lord, Lord Goodhart, suggested. Without that safeguard, these amendments are essential. If they are not agreed, that safeguard at least should be included.

[Baroness Kennedy of The Shaws]

My Lords, I apologise for interrupting the noble and learned Lord, Lord Scott. There is no greater crime than for a barrister to interrupt a judge mid-speech, so I am covered in a white shroud as I appear before him.

I, too, support the noble Lord, Lord Faulks, in this amendment, and in the other amendments. They tend to flush out a rather important question: is it the intention that this is a continuation of the erosion of legal aid, and that the idea of turning it back is never to be considered? Are we talking about the withering on the vine of legal aid? If so, you would not have in mind the opportunity of the Lord Chancellor to reinstate legal aid or to put it back in place as a result of evidence of shortcomings. If the intention is simply to reduce legal aid inexorably, of course you would not bother having that bit as part of the powers of the Lord Chancellor.

The piece of law to which I want to speak is that of unintended consequences. We know that it is only in the experience of the absence of legal aid that we will see its impact. I want to reinforce what others have said, that it will be in the sucking of the sweetie that one will be able to work out whether the consequences are so serious that the Lord Chancellor might want to reinstate legal aid or to put it into a place where it had not previously been. I strongly urge the Minister to look again at this and to have that reciprocal part of the power so that it will be possible to put legal aid in place, or to reinstate it where it has been removed.

Community Legal Service (Funding) (Amendment No. 2) Order 2011

Lord Scott of Foscote Excerpts

Wednesday 26th October 2011 Lords Chamber

[Lord Scott of Foscote]

My Lords, I, too, support this Motion and agree with nearly all the remarks made by my noble friend Lady Deech. The statutory instrument is an extremely worrying document, proposing as it does to reduce by 10 per cent the remuneration payable to lawyers for legal services in cases covered by a legal aid certificate. What is the reason for this? The purported reason is set out in the Explanatory Memorandum. Paragraph 7.2 explains that,

“the Government considers that it needs to ensure that it only pays those fees that are absolutely necessary to secure the level of services that are required”.

That is an entirely acceptable proposition but I suggest that it is weasel words.

The reason is not that legal aid should not have been granted in a number of cases or that the remuneration assessed under the present regulations exceeds a reasonable charge for the work done or that the work done was unnecessary. The reason is that assistance is needed from the Ministry of Justice to help reduce the budget deficit. Why that could not have been explained as the reason in the Explanatory Memorandum, I know not. But the reason plainly is simply to assist in reducing the budget deficit.

Are others who do work for the Government as independent contractors, such as barristers or solicitors, to have their remuneration reduced to assist in reducing the budget deficit? I have not heard of such a suggestion. Why are legal aid lawyers being singled out for this attention? The effect of the 10 per cent reduction needs to be thought about. A number of lawyers may decline to accept legally aided work, bearing in mind that they will receive 10 per cent less than the sum which would have been reasonable remuneration under present standards. Why reduce what has been assessed as reasonable remuneration?

A second possible result has already been referred to by my noble friend Lady Deech. The number of litigants in person may increase and their presence in court almost invariably means that the case takes much longer. It often means that there will have to be adjournments. The judge with litigants in person before him, particularly if there is one litigant in person on one side and counsel for a paying party on the other side, is placed in the position of having to appear sometimes like counsel for the litigant in person. The judge thinks of points that the litigant in person has not thought of that might assist their case. The judge puts those points forward and then it appears that he is taking the side of the litigant in person. It is an unedifying spectacle but all judges will have experienced it. I have myself. Those are the possible adverse consequences.

What are the beneficial consequences? There would be a reduction in the legal aid bill, but that would depend on the additional costs occasioned by the number of adjournments that litigants in persons may bring about. The Law Society has circulated some documents suggesting that the notion that costs will be saved by these so-called reformed are misconceived. It may be only pie in the sky but the proof of the pudding will be in the eating and the disadvantages, I suggest, are apparent.

More important than the disadvantages to which I have referred is the effect on the civil justice system, for which I have a great affection. I have worked in it all my working life. It is not an optional extra but a system that behoves every government to supply for the benefit of all its citizens. Without a civil justice system self-help would become the order of the day in the settlement of issues between citizens. The civil justice system is there to settle issues between citizens and the Government. A feature of an acceptable civil justice system is that it must be accessible to all who need to use it. The legal aid scheme enables that to be achieved. Some types of litigation are removed from the benefit of the ability of litigants to conduct their cases under legal aid, but, broadly speaking, the legal aid scheme seeks to ensure that access to the civil justice system is available to all, which is right and proper. As I have said before, it is not an optional extra to be paid for only by those who can afford it.

The need for lawyers in that system is apparent also and those lawyers need to be paid for. The notion that that can be avoided by Government is no more realistic than saying that any other necessary service which it behoves Government to provide should be paid for by those who work in it. Are doctors and nurses supposed to contribute to the cost of the National Health Service? Certainly not. How is it different where legal aid lawyers work in cases where legal aid has been granted? A functioning and healthy civil legal aid system is essential. The implications of this statutory instrument are that the Government do not regard it in quite that light but think that these impositions can be made on the lawyers who work in that system in order to reduce the cost that would otherwise fall on government.

The 10 per cent reduction does not perhaps matter very much for senior barristers who have established a practice. They will have some privately funded work. They will have established good will among solicitors and clients that they can rely on in legally aided work as well. They will survive the 10 per cent reduction. The ones who will be struck by it and who may not survive it are the new entrants to the profession. Those men and women enter the profession with trepidation. It is a profession which provides no security. There is no firm that will pay you a salary that you can fall back on. You stand or fall on your own efforts and rely on the fees that you earn. Almost every entrant to the profession will wonder how long he or she can manage to continue before the financial difficulties become too great. The statutory instrument separates counsel providing advocacy services under the legal aid scheme into senior barristers who have been in practice 10 years or more and juniors who have been in practice less than 10 years. Those who have been in practice for 10 years or more can be expected to have built up some degree of practice and good will. They probably have some privately funded clients. They probably have some good will with solicitors who do legal aid work. They can probably avoid suffering too much from this 10 per cent reduction in their legal aid income. But what about those new entrants with five years’ call or less? They have no security at all. They will have a meagre income. They will be hoping that it builds to something respectable. For many of them it does but for some of them it does not. Practically every barrister who enters the profession does so in the knowledge that he or she may be unable to afford to continue for long enough to establish a practice on which they can reasonably live. They may have to take a bolthole, so to speak, into employment in a solicitors’ firm or in the legal department in some commercial company. The ones who have to take that course, who cannot wait the length of time necessary to build up a practice they can survive on, will be those who have no advantages of family support to help them in their difficult years. This statutory instrument is going to make those first five years much more difficult. Let us imagine somebody on an employment salary, not a very large one, being told that he or she must suffer a 10 per cent reduction for the future. There will be a drift away from the barrister’s profession and into firms and commercial companies, to which I have already referred. It will do a disservice to the civil justice system, which depends on a stream of lawyers coming up through the system and becoming available eventually as potential judges.

I respectfully suggest that this is a bad statutory instrument. If my noble friend Lord Bach puts his Motion to a vote, I shall vote for it.

[The Earl of Listowel]

My Lords, I regret that I, too, must support the Motion of the noble Lord, Lord Bach, because of my concerns about the impact on child welfare. I regret doing so, because I know that the Government take the welfare of children very much to heart, and I thank the Minister for ensuring that domestic violence issues have been kept out of the scope of the order and that tandem representation of children in private law cases will be untouched.

I remind the Minister and other Members of the House of Article 3.1 of the United Nations Convention on the Rights of the Child, which states:

“In all actions concerning children”—

whether undertaken by legislative bodies or other institutions—

“the best interests of the child shall be a primary consideration”.

I should be very interested to hear from the Minister how the best interests of children have been considered in this move by the Government to cut legal aid.

Children need the best experts and lawyers in the immensely complex cases that they are often drawn into. My concern is that those experts will be driven out by the further cut in their finances. Expert witnesses to the family courts—including paediatricians, child and adolescent psychiatrists, educational psychologists, adolescent psychotherapists and independent social workers—are all subject to the 10 per cent cut, having already had their fees seriously cut. For clinicians working in London, the situation is worse, because London-based practitioners are allowed to charge only two thirds of the amount charged by those based outside London. As everyone knows, it is more costly to practise in London.

I am concerned that because of the impact on expert witnesses there will further delays for children in the courts and that poor decisions will be made. If a child is taken into local authority care and the wrong decision is come to, it will stay with that child for the rest of his life and possibly for the rest of his children’s lives. We need to get those decisions right and we need the right expertise.

A further concern of the expert witnesses is that they cannot deal directly with the Legal Services Commission but have to work indirectly through solicitors. Perhaps the Minister could look at that, because it would certainly be an improvement if they could deal directly with the commission.

I look forward to the Minister’s response. I hope that he can give some comfort to your Lordships.

Industrial Tribunals: Fees

Lord Scott of Foscote Excerpts

Wednesday 19th October 2011 Lords Chamber

[Lord McNally]

My Lords, I fully endorse the growl of approval from the Benches opposite but this is precisely the argument that we will have again and again in the weeks and months to come. The problem is that a system that started off as a non-confrontational, non-legal settlement of disputes has become peopled by m’learned friends at great expense. We are trying to move away from a legalistic approach to settling disputes to one that will settle more by arbitration, conciliation and mediation.

[Lord Scott of Foscote]

My Lords, the accessibility of a civil justice system is one of the features of the structure of the administration of justice that every civilised country ought to provide for its citizens. Is not the danger of a fee structure system that the fees might be set at too high a level, thereby denying access to justice to those unfortunates who could not afford such a fee?

[Lord McNally]

My Lords, that is precisely why we are consulting and taking a further impact assessment—so that we will have a fee structure that will not have the detrimental effects the noble and learned Lord is suggesting.

House of Lords: Reform

Lord Scott of Foscote Excerpts

Wednesday 22nd June 2011 Lords Chamber

[Lord Scott of Foscote]

My Lords, there is really very little to say that has not already been said very eloquently by those who have spoken before me. That feature of the debate that has taken place yesterday and today allows me, I hope, to be brief. I wish to associate myself particularly with the coruscating speech delivered yesterday by the noble Baroness, Lady Boothroyd, and with the speeches delivered today by the noble Lord, Lord Grenfell, and the noble and right reverend Lord, Lord Eames, and also with the many speeches delivered to your Lordships by those who have opposed the notion that election of Members of this House would be a desirable constitutional innovation.

This House has long been the subject of reforms to its membership. The reforms have always been pragmatic ones designed to make the House better able to discharge its constitutional functions. The reforms began—so far as I know; there may have been earlier ones—in 1878 when provision was made by statute for life peerages to be awarded to eminent judges or lawyers, and these became the first Law Lords. The reforms were designed to make the House better able to discharge its then constitutional role of being the final court of appeal for the kingdom. That was a wholly pragmatic response to the proposal by Prime Minister Gladstone to remove from the Lords its appellate jurisdiction. A general election brought in Disraeli as Prime Minister in place of Gladstone and the creation of Law Lords to sit on appeals to the House was the result.

The Parliament Act 1911 was a procedural reform introduced to prevent a Tory-dominated House of Lords from defeating legislation desired by the Lloyd George Liberal Government. That too was a pragmatic response to a need for the House to be in a satisfactory state. The 1958 Act extended to anybody the possibility of the grant of a life peerage and this too was a pragmatic response to the growing criticism of the hereditary character of the then membership of the House. The 1998 Act started the process of removing hereditary Peers from membership of the House but this Act, like the 1878 and 1958 Acts, owed little, if anything, to doctrine and everything to pragmatism—what would enable the House more efficiently to fulfil its constitutional role until a final decision about membership of the House could be reached. These reforms have since 1958 enabled a constitutional balance between the Commons and this House to evolve. I know of no criticism of that balance except that the Members of this House, bar the remaining hereditaries, owe their membership to appointment and not to election. Subject to that single criticism, the House has since 1958 discharged its constitutional functions without serious criticism of its membership.

Is that criticism justified? Your Lordships have heard over the past two days all sorts of criticisms of the proposed Bill and the details contained in it. Having listened carefully to those criticisms, I should have thought that the proposed Bill was a bad Bill, but that does not dispose of the underlying question of whether an elected House of Lords should be preferred to an appointed House, either wholly or in part.

A fully or mainly elected House would undermine the balance between the two Houses that has evolved since at least 1958—perhaps earlier. It would produce constitutional complications, disputes and deadlocks, the outcome of which would be difficult, perhaps impossible, to foretell. In the words of the noble Lord, Lord Butler, it would produce a “destination undefined”.

In considering the proposed reform of the House and whether an elected or an appointed House is to be preferred, there are only three relevant questions. First, what is the constitutional function of the House? Secondly, what attributes of Members of the House are needed for the discharge of those functions? The third question is whether election of Members of the House by members of the public is a necessary attribute for the discharging by Members of the House of their functions.

At present, the roles of the House are threefold. First, its reviewing and advisory role in relation to the House of Commons is applicable mainly to primary legislation but also to secondary legislation, particularly under the procedural reforms proposed in the report of my noble friend Lord Goodlad. The scrutiny of legislation is to identify whether any unintended consequences are to be discerned that might be thought to be undesirable, and whether the legislation as drafted will produce the consequences that were intended for it. Those scrutiny processes are highly desirable for the production of sound legislation and are performed by this House to a degree of satisfaction to everyone.

The second role of the House is to provide a venue for the introduction of politically non-controversial legislation. That role can be set aside for the purposes of the present argument, because an elected House would be able to discharge that role as well as would an appointed House.

However, the third role of the House is of critical importance. It is the function of holding the Government to account. That may arise in an almost infinite number of respects—some scientific, some technical, and some that are connected with the Armed Forces, legal matters, matters of medicine or other technologies. The “degree of expertise” is a phrase disliked by the noble Lord, Lord Strathclyde. I would accept “diversity of experience” as a better use of language. That diversity is of huge importance in enabling the holding to account of Ministers to be discharged to its optimum effect. The House as presently constituted contains that diversity of experience. It is by no means confined to the Cross Benches, and is to be found in all parts of the House. It must be very rare for an issue to arise that calls for discussion or debate in the House where no one in the House has experience—expertise, if one likes—of that subject. I can certainly remember no such case since I have been in the House. That informs our debate; it enables questioning of the Minister to be effective and searching.

The next question is whether elections would produce Members of the House as well able to discharge their important constitutional function of holding the Government to account as does the House as presently constituted. The expert knowledge and experience of Members is clearly of great importance, as I have said. The independence of Members is also important. Members of political parties, as well as Cross-Benchers, are independent in the sense that, once they are here, they stay here. They are not subject to discipline by government Whips if they choose to vote or speak against party policy. That independence is important and obtainable under the House as it is constituted at the moment.

I do not believe that an elected House could match the qualities I have just mentioned. The manner in which individuals are appointed is certainly open to criticism. I entirely support the introduction of a statutory Appointments Commission—

[Baroness Garden of Frognal]

I apologise for interrupting the noble Lord, but he has exceeded the guidance time.

[Lord Scott of Foscote]

I have exceeded my time by a minute and I apologise for that. I entirely support the introduction of a statutory Appointments Commission tasked to produce a balanced House. That is important, and consistent with an appointed House.

European Convention on Human Rights

Lord Scott of Foscote Excerpts

Thursday 19th May 2011 Lords Chamber

[Lord Scott of Foscote]

My Lords, I must add my own expressions of gratitude to those of many others in your Lordships’ House to my noble and learned friend Lord Irvine of Lairg for introducing this debate on an interesting and important subject. I have found myself in broad agreement with nearly all that has been said by your Lordships, but I want to say one or two things about the status, function and relevance of the Strasbourg court decisions.

The Strasbourg court is the court of the convention. One uses the expression “the convention” in a slightly misleading sense because the convention as such was not incorporated into our domestic law. What were incorporated were the specific articles of the convention, which are set out in the schedule to the 1998 Act. For convenience, however, I will continue to refer, as others have done, to the convention having become part of our domestic law. The authority of the Strasbourg court, in so far as it was provided for under the convention, was not dealt with by incorporation; it was dealt with in the body of the Act by Section 2, which said in terms that the courts of the UK, in determining questions which arose in connection with convention rights, “must take into account”—those were the critical words—any,

“judgment, decision, declaration or advisory opinion”,

of the Strasbourg court. Surely the words “take into account” must mean what they say: no more, no less.

The judgments of the Strasbourg court are highly persuasive. The court is composed of a number of very eminent jurists and the judgments that they produce, when they are relevant to issues being decided by the courts of this country in relation to the incorporated articles of the convention, are highly persuasive. However, the judgments are not binding. The fact that they are not binding was recognised by the noble and learned Lord, Lord Irvine, when that Bill was before this House on Report. At that time he said:

“There may … be occasions when it would be right for the United Kingdom … to depart from Strasbourg decisions”.—[Official Report, 19/1/98; col. 1271.]

So it is that domestic courts are not bound by Strasbourg decisions.

In a fairly recent House of Lords decision, Kay v London Borough of Lambeth, when the House of Lords was the final court in this country, this House held unanimously that where there were conflicting decisions between the Strasbourg court on the one hand and the House of Lords on the other—it would now be the Supreme Court—the obligation of other domestic courts was to follow the House of Lords, not the Strasbourg court. I believe that it is important to bear that in mind: the Strasbourg court decisions are not part of the law of this country. They are highly persuasive and they may be followed, but they do not have to be.

My second point concerns the nature of the Strasbourg court—the court of the convention—as a court of final resort. The Supreme Court now and the Law Lords in days past constituted the final court of appeal in the United Kingdom, not just England and Wales but Scotland and Northern Ireland as well. From time to time, courts of final appeal mould existing law in order to cater for new situations which appear to have arisen, or to take account of new ideas which have been formulated and appear relevant to cases for decision. That is what the Supreme Court does, what the Law Lords used to do, what the Supreme Court of the United States does and what the High Court of Australia does.

All of this is, in a sense, inconsistent with the strict constitutional principle of the separation of powers. Yet that does not matter because, in all those jurisdictions I have mentioned, there stands over the court a democratically elected and accountable legislature which can always reverse judicial decisions if the legislature considers that that is necessary and the judges have gone too far. That safeguard makes development of the law by judges acceptable and desirable, in my opinion. However, so far as the Strasbourg court is concerned, there is no comparable control from a democratically elected and accountable legislature. That feature of Strasbourg jurisprudence has to be borne in mind: the judges’ decisions cannot be reversed, which is another reason for underlining the requirement that the judgments should be treated in this country not as binding but merely as highly persuasive.

The case of prisoners’ votes is illustrative, or may become so. Strasbourg ruled that it was contrary to human rights to have a complete bar on prisoners voting. However, that is not binding in this country. It is persuasive, and there may be very good reasons for allowing prisoners, or some prisoners in some circumstances, the right to vote, but Parliament would have to decide that. In my respectful opinion, however, it is quite wrong to say that failure to follow Strasbourg is a failure to accept the rule of law. Strasbourg does not form part of the rule of law so far as this country’s jurisprudence is concerned. It is highly important to make sense of the relationship between the Strasbourg court and the courts in this country.

Estates of Deceased Persons (Forfeiture Rule and Law of Succession) Bill

Lord Scott of Foscote Excerpts

Friday 13th May 2011 Lords Chamber

[Lord Scott of Foscote]

My Lords, I speak in the gap—and I am grateful for the House’s indulgence in allowing me to do so—to make just one short point on the Bill. It is an excellent Bill and I thoroughly support it. I agree with everything that has been said in support of it already, but I wanted to say a word about the scope of the forfeiture rule. The noble Lord, Lord Flight, mentioned that the forfeiture rule might be applied to cases of mercy killings. So it might. If the mercy killing is held to be unlawful, that would trigger it. “Unlawful killing” is the expression used in the Forfeiture Act 1982. Murders are obviously caught in that description. Manslaughter would also be caught, as there would plainly have been an unlawful killing.

However, we now have another criminal offence on the statute book: causing death by dangerous driving. Children drive their parents. Parents drive their children, obviously, but it is children driving their parents that might give rise to some point under the Forfeiture Act. The court has the discretion to grant some relief from the fact of the forfeiture, but that is a discretion, and how the court exercises a discretion will obviously depend on the view of the judge and the facts of the particular case. It must be recognised that the scope of the forfeiture rule may have been considerably increased by the advent of the crime of causing death by dangerous driving. That is the point that I wanted to make when considering the necessity for the Bill.

Parliamentary Voting System and Constituencies Bill

Lord Scott of Foscote Excerpts

Wednesday 9th February 2011 Lords Chamber

[Lord Scott of Foscote]

My Lords, I rise simply to say a word about the possible effect of litigation on the timetable proposed for litigation. The possibility of delay was mentioned by my noble friend Lord Pannick, who has great experience in this field. It is my experience that the prospect of obtaining a favourable end result to the litigation is not the only reason why people commence litigation. Both as a barrister and as a judge, I remember cases in which litigation was commenced not with any realistic prospect of success at the end but simply for the purpose of achieving delay. Where judicial review is concerned, the permission of a judge is required. So the applicant goes in front of the judge and sets out his case, asking for permission to start judicial review. Sometimes a judge will grant him permission when he ought not to have done. The noble Lord, Lord Pannick, proposed the likelihood that permission would be refused in the cases of judicial review as a result of this amendment, and I do not dispute that—but there might be a judge who would grant it. If permission is refused, the applicant can then renew his application for permission in front of the court of appeal and try again. Throughout this process, which will take a little time, whatever expedition might be granted by the courts, the pending litigation will deter the Boundary Commission from getting on with its job.

I support the amendment—or at least I think I do; I am listening carefully to the arguments for and against—but I would not wish this House to proceed on the footing that a degree of delay might not be occasioned by litigation of the sort that I have described, which may be vexatious litigation.

[Lord Phillips of Sudbury]

Would it be unfair to ask the noble and learned Lord to utilise his vast experience of judging to comment on the point just made by my noble friend Lord Rennard as to whether the definition of a viable constituency would be an issue that delayed a competent lawyer for some considerable time, especially if paid per diem?

[Lord Scott of Foscote]

A competent lawyer will give an opinion on that after he knows the facts. The notion that the constituency proposed is not viable will have to depend on facts, some of which are bound to be much stronger than others. As a general proposition, the question of what a viable constituency is and is not will be a subjective matter and one properly for the Boundary Commission. Whether there was an angle that would allow an attack to be launched would depend on the facts of an individual case and is not something that could be answered in the abstract.

[Lord Elton]

My Lords, before we come to a conclusion, there is something about which I need to remind myself and your Lordships. It is necessary to keep two or three things in mind. As my noble friend Lord King has already reminded us, at present the Bill permits a variation of 10 per cent, whereas what is proposed is a variation of 15 per cent. I need to remind myself that we are talking not about numbers, areas or acreages but about the value of votes. The proposal is to raise to 15 per cent the discrepancy between the value of a vote in one constituency and in another.

The principle of the Bill is to try to reduce the variations so that everybody’s vote is roughly equal. My subjective—but not, I think, unreasonable—view is that 10 per cent is quite enough. That gets around an awful lot of arguments that have been made and, for me, it is conclusive.

Prisoners: Voting

Lord Scott of Foscote Excerpts

Monday 18th October 2010 Lords Chamber

[Lord McNally]

I can absolutely assure the noble Baroness that no such fault line exists. As I have explained already, over a period of five months we have been looking at the situation and listening to various points of view. There is a Council of Ministers meeting on 30 November and we will update that council meeting in due course. We have not been unduly laggard in looking at the issue and, as I have said, the work is continuing.

[Lord Scott of Foscote]

Is the Minister aware that the rulings of the Strasbourg court are not binding on our domestic courts? Section 2(1)(a) of the Act states that Strasbourg court rulings should be taken into account, but an amendment to make them binding was rejected by this House and was never part of the Bill. Is the Minister aware also that the Hirst (No. 2) judgments contained a dissenting opinion from five of the 17 judges, including Judge Costa, and that in the opinion of many, including myself, the dissenting opinions are far more convincing than those of the majority? In these circumstances, does the Minister agree that it is not open to the Strasbourg court to add to the human rights enshrined in the convention in the manner in which it from time to time does, and that, so far as the issues in the present case are concerned, the Government should do no more than simply reaffirm the present position? Does the Minister finally agree—

[Noble Lords]

Speech!

[Lord Scott of Foscote]

Does the Minister finally agree that the Government must govern this country according to the laws in force in this country without regard to the occasional extravagances of the Strasbourg court?

[Lord McNally]

My Lords, one of the values of Questions like that of the noble Lord, Lord Ramsbotham, is that it provokes interventions such as that. It means that we get, for free, legal opinions that would on normal occasions cost us a fortune.