Courts: Super-injunctions

Lord Thomas of Gresford Excerpts

Thursday 19th May 2011 Lords Chamber

[Lord McNally]

That goes to the nub of it. Quite clearly, what is of interest to the public can include areas which intrude into private life. Again, we are looking carefully at these matters. The fact that there is so much public discussion and debate means that it has been sensible to get the Master of the Rolls to look at these issues. When we have the full knowledge of his deliberations, we will make statements on steps forward.

[Lord Thomas of Gresford]

Will my noble friend be good enough to tell us how many super-injunctions have been issued and are extant? Hugh Tomlinson QC, the leader in privacy law, tells me that the Ministry of Justice has no idea. Perhaps the Minister would send a runner down to the Royal Courts of Justice and find out exactly how many there are. The Times says 30; other newspapers say 800.

[Lord McNally]

I have to confess that the Ministry of Justice does not have a figure on the number of super-injunctions. I understand that the Ministry of Justice statistician, a post I was not aware of—

European Convention on Human Rights

Lord Thomas of Gresford Excerpts

Thursday 19th May 2011 Lords Chamber

[Lord Thomas of Gresford]

My Lords, the introduction of the Bill of Rights into Hong Kong in 1991 towards the end of British government put into effect the International Covenant on Civil and Political Rights in that territory. It was a Conservative Government who introduced it and, with the aid of the noble Lord, Lord Wilson of Tillyorn, and later the noble Lord, Lord Patten, negotiated that the Bill should be enshrined in the basic law which now applies to Hong Kong.

That Bill of Rights remains as a bulwark of the right to life, to freedom of expression, assembly and religion, the right to equality and to the presumption of innocence, the right to property and to privacy, a right to travel, and a prohibition against arbitrary arrest, detention, imprisonment, search and seizure. I mention these matters because you have only to go a few miles over the border to see what it is like to live in a country where no such rights are enshrined in the constitution or, if they are, they are not put into effect. It is a stark contrast with what happened in Hong Kong.

The Bill of Rights in Hong Kong in its original form gave the courts the power to strike down any law that was incompatible with those rights. The Privy Council here in the case of Lee Kwong-kut in 1993, in which I was involved, tested that power in relation to a criminal charge where the burden of proof had been reversed. The noble and learned Lord, Lord Woolf, who gave the judgment in that case, concluded:

“The issues involving the Hong Kong Bill should be approached with realism and good sense, and kept in proportion. If this is not done the Bill will become a source of injustice rather than justice and will be debased in the eyes of the public ... It must be remembered that questions of policy remain primarily the responsibility of the legislature”.

The Labour Government, led by the noble and learned Lord, Lord Irvine, and possibly in the light of that 1993 judgment, were less ambitious than their predecessor. The remedy for a breach of the European Convention on Human Rights under the 1998 Act, as the noble and learned Lord has already said, is merely a declaration of incompatibility, and it is left to Parliament to remedy the defect that the court demonstrates.

We have yet to consider the legislative reaction of this Government to the decision of our Supreme Court in the case of F in April 2010, to which the noble and learned Lord, Lord Irvine, has already referred. When a Statement was recently made by the Home Secretary and repeated in this House, I said that I was shamed by the language used. The noble and learned Lord has referred to the Home Secretary using expressions such as “disappointed and appalled” and to the Prime Minister finding the judgment “offensive” and questioning the sanity of the court.

We have not heard any more about that. The issue was whether a person could have the right to apply to remove his name from the sex offenders register and not have to give notice of wherever he happened to be in the world. Perhaps it is now realised that the solution put forward by the Home Secretary—that it should be left to the discretion of a policeman to revoke the order of a court—has not been further advanced because clearly it would not survive scrutiny.

I concur with the wise words of the noble and learned Lords, Lord Irvine and Lord Mayhew, about current criticism of the European convention. I will deal with the beneficial effect of the incorporation of the convention by illustrating the changes that have taken place in courts martial, largely as a result of the work of Gilbert Blades and John Mackenzie, who took a highly unsatisfactory system of courts martial to be examined by the European court. I was surprised two weeks ago to be approached by a senior judge advocate who praised the reforms to the system that had been caused by the application of the European convention. I thought that he might have been one of those crusty old judges, but he was not.

The court martial system was challenged in the European court by Corporal Findlay in 1996. The soldier had pleaded guilty at his original trial, but complained that the system whereby the convening officer appointed the members of the court and the prosecutor, directed the charges and then, post trial, became the confirming officer, was not independent. The European court upheld his complaint, which was the catalyst for the Armed Forces Act 1996. Parliament passed the Act, which set up an independent Army prosecuting authority with prosecuting officers who were drawn from professionally qualified lawyers and were independent of the chain of command. Further cases followed in the European Court that led to other changes. Some noble Lords may recall that it led to the ending of the practice in naval courts martial where the defendant was pushed in at the point of a cutlass.

The Armed Forces Act 2006 created a single tri-service prosecuting authority, known as the Service Prosecuting Authority, under the leadership of an independent director of service prosecutions. There was opposition. When I proposed that the pool for the panel should be widened, a noble and gallant Lord said to me in the corridor on the way to the Bishops’ Bar: “You should be shot”. The first DSP is Bruce Houlder, a civilian Queen's Counsel. He has introduced further excellent changes that make the system the envy of military courts in other jurisdictions, as I found out last month at an international seminar at Yale University. That is the way in which the European convention has changed the military justice system so much for the better. It is no longer a case of “march the guilty bastard in”, but a court that gives justice to the defendant.

I consider the Human Rights Act 1998 to be the outstanding piece of legislation of the previous Labour Government—next to the Government of Wales Act 1998. I congratulate the noble and learned Lord, Lord Irvine of Lairg, not simply on introducing the debate but on being the architect of an important piece in the structure of justice in our country.

Civil Legal Aid

Lord Thomas of Gresford Excerpts

Thursday 19th May 2011 Lords Chamber

[Lord Thomas of Gresford]

My Lords, there is no point in cutting legal aid if the effect is to increase government expenditure in other areas and at the same time deny access to justice. The Green Paper proposes a radical reduction in the scope of private family law issues for which legal aid will be available. That policy is based on a false premise; namely, that spending on legal aid fuels litigation and that the only alternative is mediation.

Family lawyers, as a group, are committed to settling cases out of court as expeditiously as possible, often by referring clients to mediation, but, more frequently, negotiating settlements themselves. In my early days as a solicitor, I was much involved in that sort of work. The Green Paper entirely neglects the current important role of lawyers in non-court-based resolution of legal disputes, particularly financial and custody disputes. It is very probably because clients were able to see a solicitor that litigation was avoided in many cases. Without professional guidance, ill founded and certainly ill prepared litigation conducted by the client in person will inevitably follow. That will mean a very substantial rise in the number of litigants in person in the family courts. Sir David Norgrove, chair of the Family Justice Review panel, in his interim report, which was published recently, has emphasised this point.

Those who lack the personal energy and other resources to take on litigation by themselves would not get access to justice at all. Those who have not been able to enforce the other party’s private law responsibilities for support and so on inevitably fall back on the state for housing and support, so that is where more state expenditure is incurred. One reason why mediation is currently successful is that the threat of litigation encourages people to adopt sensible positions in mediation or in settlement discussions. With that threat effectively removed in many cases by the removal of public funding for legal representation, successful mediation will be severely hampered.

Legal aid is to be granted where there is physical violence. There is an obvious perverse incentive for people to allege domestic violence just to get access to funding for their other issues. The other side to the argument could say, “Well, I never did that”, which will increase more contested court proceedings. Many women who do not disclose domestic violence that they have suffered, or refuse to apply for injunctive relief in relation to it, will not get a proper and safe resolution of the issues. The very class of person which the Green Paper most wants to protect will be left unprotected and in potentially extremely dangerous situations. Domestic violence very often comes to light only through the lawyers’ handling of the case when they learn it from a client who has kept it concealed from their family. Mediation in such cases will not work and should not be tried at all.

Medical negligence cases have played a very important role in improving health care by setting standards, publicising deficiencies and punishing failures. The thalidomide case is a very good example. In many cases, new procedures have been introduced and developed as a result of litigation. According to the Green Paper, taking clinical negligence out of legal aid would save £17 million.

Of the 500,000 avoidable incidents in England alone, as estimated by the DoH in 2009-10, the National Health Service Litigation Authority received only 6,652 claims. Expert solicitors who handle these claims will decide in 75 per cent of them that there is no case. Sometimes there is negligence but no injury and sometimes there is injury but no negligence. It is not possible to assess the chances of success in clinical negligence cases at the start of the case. There must be funding to find out if there is a case and for the higher cost cases. I follow the noble Lord, Lord Faulks in his pointing out that whether the issue is negligence or causation, expensive expert medical evidence is required to establish a basis for the claim before a decision to proceed is made.

The Government propose to remove legal aid for clinical negligence at the same time—I repeat, at the same time—as changing the no-win, no-fee agreements. I am grateful to the noble Baroness, Lady King, who pointed out to me that children who were said to be still covered for clinical negligence cases are not to be, on which I am sure she will expand. When Sir Rupert Jackson published his proposals, he said:

“I stress the vital necessity of making no further cutbacks in legal aid availability or eligibility … the maintenance of legal aid at no less than the present levels makes sound … sense and is in the public interest”.

His proposals are based on the continuing existence of legal aid. Its removal will deny access to justice to some of the most vulnerable groups in the country—children, the sick and disabled. The need to streamline costs and for systems to be efficient should not be at their expense.

[Baroness Northover]

Perhaps I may remind noble Lords that this is another time-limited debate. When the clock reaches the five, noble Lords have had their five minutes.

Legal Services Act 2007 (Approved Regulators) Order 2011

Lord Thomas of Gresford Excerpts

Tuesday 5th April 2011 Lords Chamber

[Baroness Hayter of Kentish Town]

My Lords, I declare an interest as chair of the Legal Services Consumer Panel, which is an independent part of the Legal Services Board that recommended the order to the Lord Chancellor.

I warmly welcome the order, which will enable ILEX, as the body that regulates legal executives, to allow certain members to conduct litigation. The order is a notable first and is important for two reasons. First, it will permit associate prosecutors to be regulated by a professional body—the Institute of Legal Executives —in regard to the litigation work that they do. I believe that this arrangement will ensure that the consumer interest is reflected through these regulatory arrangements. Secondly, the order makes ILEX an approved regulator for litigation rights generally, which is a step on the way to ILEX empowering legal executives to provide litigation services to the public.

I would like to say a word about ILEX and its members, whom I hold in high regard. ILEX grew out of the old Solicitors Managing Clerks Association and has taken a real lead in diversity—in which I know the Minister takes a particular interest—in the profession. Three-quarters of ILEX members are women and 13 per cent are from black or ethnic minority backgrounds, compared with under 8 per cent in the population. Perhaps particularly important today, as my noble friend Lady Gale referred to, ILEX has provided a route to qualification as a lawyer for those who have neither started as a graduate nor had contacts in the profession. Indeed, just 2 per cent of ILEX members have a lawyer for a parent. ILEX has been a real beacon in providing “second chance” professional entry that is open to people from a wider range of backgrounds than many of our learned societies. Four out of five members do not have a parent who went to university. Very few ILEX members come from traditional legal or professional backgrounds.

Yet ILEX has created opportunities while firmly maintaining the standards of qualification. There are some 7,500 fellows of ILEX, who are subject to the code of conduct and all the same expectations of professional and personal standards and commitment to their clients as any other lawyer.

This order will help ILEX to continue to act as a gateway to the solicitors branch of the profession for a wide range of entrants. From a consumer perspective, it is a step towards clients having access to those from a wider social understanding and background, mixed with common sense and empathy. Your Lordships will understand why I am so supportive of this order—I recognise that not every lawyer is—but I am confident that, overseen as it is by the Legal Services Board, ILEX and its members will show themselves worthy of the new responsibility that they are about to get with this order.

[Lord Thomas of Gresford]

It is a pleasure to follow the noble Baroness, Lady Hayter, in her recommendation of ILEX. We were talking earlier about social mobility. It is exactly as she says, ILEX has provided a route to professional qualifications for many people who did not have the background, and sometimes not the university background, which would enable them to qualify any other way.

In my youth, managing clerks were a very important part of the solicitors’ branch of the profession. They were highly experienced people but in those days they could not appear in court. It was always very useful to follow the advice and the instructions that they gave and to enjoy the personal connection that they had with clients. We have moved on since those days and we now give members of ILEX the opportunity to acquire audience rights, which they have exercised very competently. Associate prosecutors under the CPS have done a great deal of work that would otherwise occupy a great deal of time and money and involve qualified lawyers, which is unnecessary. I very much support this measure.

Advocacy is a skill that cannot really be taught: either you can do it or you cannot. Much of the ability to be an advocate is acquired through experience. I am sure that ILEX, in performing its training and regulatory function, will ensure that those who go into court are fully conversant not just with the law that they have to apply, and that they have the ability to stand on their feet and speak, but that they will have a knowledge of ethics because, so far as prosecution is concerned, legal ethics is a very important part of the responsibilities of the advocate. I think, for example, of the necessity to disclose fully any evidence that may be in the hands of the prosecutor which could assist the defence. These matters do not necessarily come to the mind of an untrained person. I look to ILEX to continue its excellent training function and to ensure that these associate prosecutors have the full competencies to enable them to fulfil their role. I very much support the order.

[Baroness Butler-Sloss]

My Lords, I also support this statutory instrument. ILEX has well demonstrated that associate prosecutors can play a part in the criminal justice system. I endorse the important points that the noble Lord, Lord Thomas of Gresford, has made about advocacy and, very importantly, about ethics.

The noble Baroness, Lady Hayter, talked about this measure being a step and a progression. I mention a word of caution in this regard. ILEX has had enormous experience with managing clerks. Like the noble Lord, Lord Thomas of Gresford, when I was a young barrister I benefited enormously from the advice of the managing clerks, who often kept me straight in court. However, if they choose to move into another field outside crime such as the civil or family field, that ought to be viewed with appropriate caution. I note that the Explanatory Memorandum to the statutory instrument states:

“The Lord Chief Justice raised a concern that any potential future extension of APs’ rights must be subject to full consultation with the judiciary and other interested parties”.

Associate prosecutors have undoubtedly gained expertise in the field of prosecution but they have not gained it in either civil or family work, with which I am much more familiar. It is important that that matter should be considered by the Legal Services Board and, indeed, by the Lord Chancellor to ensure that associate prosecutors have the necessary expertise to take that next step, which should be taken with caution. However, in saying all that, I endorse entirely the suitability of the statutory instrument.

Justice: Civil Litigation Reform

Lord Thomas of Gresford Excerpts

Tuesday 29th March 2011 Lords Chamber

[Lord McNally]

My Lords, I will certainly not bluff the House that I am able, with no legal training, to assess the noble and learned Lord’s suggestion. These are still proposals, and his intervention will be reported back to the Lord Chancellor. If his suggestions have merit—and coming from that source, I have no doubt that they do—I am sure they will be given full consideration before we bring forward our final proposals.

[Lord Thomas of Gresford]

My Lords, centuries of English law produced a position whereby, in civil and criminal cases, it was a principle that the lawyer should not have a personal interest in the outcome of the case. In other words, he would be paid whether he won or lost. That was mitigated to ensure that there was proper access to justice by the introduction of the legal aid scheme. It was on that principle that during the previous Government’s period we on these Benches opposed the introduction of no-win no-fee schemes.

It is interesting to look at this Statement to see what are now said to be the problems resulting from the change from the basic principle that we had had for so long. The Statement refers to,

“the perverse situation where fear of excess costs forces defendants to settle, even when they know they are in the right”.

The proposals are also said to,

“begin to restore proportion and confidence in our system of justice”.

What has happened in the mean time, over the past 10 or 12 years, is that advertising has been allowed to proliferate and non-lawyers have collected and farmed claims. By advertising, they have drawn to themselves hundreds and thousands of claims and have then farmed them out to various firms of lawyers. All these ills have done nothing to improve the lot of the claimant who has been injured or who has a grievance that he wishes to be resolved.

It is because I have such a basic objection to no-win no-fee that I cannot completely endorse these proposals, but they are undoubtedly an improvement on what has gone before and they redress some of the problems that have arisen. Success fees and insurance premiums are recoverable; that is to say that I as a claimant can insure myself against losing the case and then charge the insurance premium, which I know can be tens of thousands of pounds, to the defendant, provided that I am successful. I can do that not if the case goes to court but if the case is settled at some stage, so the cost of litigation has been a huge problem that has faced defendants and insurance companies.

Another problem that arises because of that is that a plaintiff has very little interest in the amount of costs in the case. He is insured against paying the defendant’s costs, he will recover if he wins and if he loses, and he has none of his own costs to pay. It has been very damaging to permit no-win no-fee cases to go in the way that they have. The proposal to ensure that claimants have an interest in the result and are restrained from allowing their lawyers to run up massive bills of cost, as proposed, is something that I, unlike the noble Lord, Lord Bach, think is a way forward.

The second part of the Statement dealing with the consultation paper on the improvement and efficient delivery of civil justice is also to be welcomed. The proposals to give greater jurisdiction to small value cases, for small claims cases to be heard through the simple small claims process and to increase the threshold for going to the High Court are all to be welcomed.

[Lord De Mauley]

I draw my noble friend’s attention to the fact that Statements are supposed to be the occasion for brief comments and questions.

[Lord Thomas of Gresford]

I accept that rebuke and will leave it at that.

[Lord Newton of Braintree]

My Lords, I apologise. I was thinking it was a debate.

Data Protection (Subject Access Modification) (Social Work) (Amendment) Order 2011

Lord Thomas of Gresford Excerpts

Wednesday 23rd March 2011 Grand Committee

[Lord McNally]

The draft order before us today amends an order made in 2000 with regard to the data protection rights of individuals in the context of social work. Specifically, the order brings the data protection obligations of the Children and Family Court Advisory and Support Service in Wales—CAFCASS Cymru—into line with those of its counterparts in England.

The purpose of the draft order is to ensure that officers of CAFCASS Cymru are exempted from the requirement to disclose personal data to an individual—known as a “data subject” in the Data Protection Act 1998—when they consider that to do so would be likely to prejudice the conduct of social work by causing serious mental or physical harm to the individual or a third party. As a result of an order made in 2005, CAFCASS Cymru’s counterparts in England can already use this partial exemption when replying to requests for personal data made under Section 7 of the Data Protection Act 1998. In 2000, when the DPA came into force, the Government brought forward such an exemption by order, which could be relied upon where the disclosure of the information would prejudice the carrying out of social work by causing harm to an individual or a third party.

I should explain that, even without this exemption, in certain situations data controllers may be able to rely on the principle that information shared with a social worker was given in confidence. Therefore, it might not be fair, or even lawful, to release the information, as to do so would be in contravention of the first data protection principle in the DPA. However, the social work exemption in the 2000 order gave a strong, certain and very explicit legal basis to withhold information and ensure that social work is not prejudiced. The schedule to the 2000 order listed those organisations and functions to which the exemption could be applied. This important exemption—the subject of our debate today—ensures that individuals’ rights to see their personal data do not inadvertently prevent social work from being carried out effectively.

With that background in mind, I will turn to the reason for the order before us today. In 2005 an order was approved by Parliament which added certain functions of CAFCASS in addition to those in the 2000 order. The 2005 order allowed CAFCASS to apply the social work exemption in appropriate cases. As Members will know, CAFCASS works with children and their families who are involved in family proceedings, and advises the courts on what it considers to be in the child’s best interests. Matters in which CAFCASS may become involved include where parents are separating or divorcing and cannot agree on arrangements for their child. The role that CAFCASS officers perform means that they routinely process information related to social work.

On 1 April 2005, the functions of CAFCASS in Wales were devolved to the Welsh Assembly, making CAFCASS in Wales—CAFCASS Cymru—a separate organisation to that of CAFCASS in England. Unfortunately, this was not taken into account at the time of the 2005 order, and therefore CAFCASS Cymru has not been able to apply this exemption, although its counterpart in England has. As a result, the intention behind the 2005 order that this exemption should apply across England and Wales, as agreed by Parliament, has not been fulfilled. It is important that this inconsistency in the subject access regime between England and Wales is rectified and that CAFCASS Cymru is able to use this exemption as was originally intended.

CAFCASS Cymru has told us that, between 2007 and 2009, there were 23 cases where it would have considered using this exemption, had it been available. In these cases, CAFCASS Cymru relied on the principle, mentioned at the start of my remarks, that there would have been a reasonable expectation that information that children share with a family court adviser would remain confidential and therefore would not disclose the information because it could give rise to an actionable breach of confidence. However, this approach has not been tested, either by the courts or by the Information Commissioner. The extension of this exemption to cover CAFCASS Cymru will provide it with parity and will ensure a stronger, more certain and explicit legal basis to withhold information if CAFCASS Cymru considered that this would be likely to prejudice the carrying out of social work, by causing serious harm to the physical or mental health of a child.

I want to emphasise here that the Government take the issue of individuals’ rights to access their personal data very seriously. Just as we have made clear our commitment to transparency in terms of public data and official information, we are also committed to upholding people’s rights to see what information is being processed about them in both public and private sectors. Indeed, the Ministry of Justice’s recent call for evidence sought views on how the current subject access regime is working. Responses to this confirmed that individuals see this as an important right and that data controllers by and large take their responsibilities in this area seriously. But there can be no doubt that in certain, specific circumstances, such as those we are considering today, releasing information may not be in the interest of an individual, or indeed of others, including the children of the individual concerned, or those involved in protecting them.

I should make clear to noble Lords that a right of appeal remains for those individuals who believe that a subject access request has not been complied with fully. As with any subject access request, there is a right of appeal through the courts under Section 7(9) of the Data Protection Act. Alternatively, individuals may approach the Information Commissioner, who may investigate whether the data controller has complied with the obligations under the Act. In addition, this order, should it be agreed, will add employees and contractors of CAFCASS Cymru, acting in their professional capacity, to the list of “relevant persons” in the 2000 social work order, as is the case with CAFCASS in England.

Section 7 of the Data Protection Act acknowledges that there may be times when the personal data of another person may be released as the result of a subject access request. In most circumstances, the data controller will need to seek the consent of that other person or assess the reasonableness of disclosure before giving out the data. However, the personal data of a “relevant person”, as defined by the 2000 order, is not subject to these conditions of consent or reasonableness. This means that CAFCASS Cymru must disclose personal data given by its employees in the course of their professional duties if this is required to provide the data subject with personal data under the terms of a subject access request. Consent and the reasonableness test are not factors in the disclosure.

A concern was raised in another place about how relevant persons will be protected from harm by having to release their personal data to others. It is important to remember that this draft order would allow CAFCASS Cymru to withhold information if social work was to be prejudiced by causing harm to the individual or any third party. This could include those who work for CAFCASS Cymru. CAFCASS in England, which must already adhere to this when replying to subject access requests, has told us that it is not aware of any harm caused to employees. In all cases so far it is only the name of the employee that has been released and it is highly unlikely that the individual making the request will not already know the name of that person—most likely to be a social worker—who has been dealing with their case. As such, it would probably raise more suspicion if the name of the employee in question was redacted and therefore the name is almost always released. Officials in CAFCASS Cymru have said that their approach would be similar to that of CAFCASS in England. Again, this provision would bring CAFCASS Cymru into line with CAFCASS in England to ensure consistency in the two bodies' approach to releasing personal data.

The principles about the need to maintain a strong subject access regime while protecting individuals were agreed by all parties in 2005 and these principles still hold firm. In any case, there is no reason why they should apply in England but not in Wales. Including CAFCASS Cymru in the list of organisations able to apply the exemption will not only protect individuals and ensure that social work can be carried out effectively; it will also ensure coherence and consistency between the organisations in England and Wales, and correct the error made in 2005. I therefore commend this draft order to the Committee.

[Lord Thomas of Gresford]

My Lords, I would not necessarily agree to the principle that something that applies in England must necessarily apply in Wales. That is the whole point of devolution, which I am sure that the noble Lord has foremost in his mind. However, I support this provision.

The noble Lord referred to the call for evidence. He made a statement in July 2010 about the call for evidence, which he said was to be,

“assessed and used to inform the UK’s position in negotiations on a new EU instrument for data protection, which are expected to begin in early 2011”.

He also said that there would be a,

“Post-Implementation Review of the DPA, with a view to publishing a full impact assessment by the end of the year”.

Have those time limits been complied with? I was not able to find anything to indicate that they had. What is the position in relation to the negotiations with the EU for a new instrument in this field?

EU: Police and Justice

Lord Thomas of Gresford Excerpts

Tuesday 8th February 2011 Lords Chamber

[Lord McNally]

The answer to the last question is the former. The length and complexity of the noble Lord’s supplementary questions indicate why the Government are sensibly taking great care to study and consult on these matters, particularly with the committees of both this House and another place, and as he rightly said, my right honourable friend David Lidington has made it clear in a Statement to the House that when the decision is to be made on these matters, there will be a full debate and vote in both Houses of Parliament.

[Lord Thomas of Gresford]

Does not my noble friend agree that to scrap the co-operation in surveillance, pursuit, arrest and extradition that exists with European countries in areas such as drugs, international fraud and trafficking would be simply daft?

[Lord McNally]

I will have to check carefully whether “daft” is a parliamentary term, but I would have thought that such a course of action would be somewhere in that range of description.

Crime: Murder

Lord Thomas of Gresford Excerpts

Monday 24th January 2011 Lords Chamber

[Lord McNally]

My Lords, the noble and learned Lord is referring to the Nuffield Foundation report Public Opinion and Sentencing for Murder. I know that because he was generous enough to send me the report, which, in my reading, shows that there is a good deal of public confusion about the law of murder. Perhaps there is a need for greater education and explanation. The blunt fact is that the Government considered these and other proposals in the recent, or not so recent, Law Commission report on the matter. However, they came to the conclusion that the time was not right to take forward such a substantial reform of our criminal law.

[Lord Thomas of Gresford]

The noble Lord has referred to public confusion about the law of murder. Does he accept that a thoroughgoing review and reform of the law of murder, including the abolition of the compulsory, mandatory life sentence, would be a jewel in the crown of the coalition Government if it could be achieved in the next five years?

[Lord McNally]

I hear what my noble friend says and I am sure that many in the Government will concur with that assessment. Proposals to act now were given consideration, but we came to the conclusion that the time was not right to take forward such a substantial reform of our criminal law.

Bill of Rights

Lord Thomas of Gresford Excerpts

Monday 24th January 2011 Lords Chamber

[Lord McNally]

The noble Lord is quite right. There is a commitment but, having looked at this matter, we feel that the Good Friday agreement commitment should be honoured separately and not as part of this exercise.

[Lord Thomas of Gresford]

In his first Answer, the noble Lord referred to building on the European Convention on Human Rights. Will he assure us that if there is to be a replacement of the European convention by a British human rights Act, it will contain all those provisions and additional provisions as we see necessary for the circumstances in this country?

Parliamentary Voting System and Constituencies Bill

Lord Thomas of Gresford Excerpts

Wednesday 19th January 2011 Lords Chamber

[Lord Knight of Weymouth]

My noble friend Lady Smith of Basildon asks a fine question, which I had not previously thought of. However, I am sure that the Minister will have done so, will not need to think on his feet at the Dispatch Box and will be able to give us a precise answer.

On the question about the timetable, it is highly pertinent whether it coincides with the Boundary Commission review period to agree the boundaries for the next general election. If it does not, which arrangements will stand the test of time in respect of prisoners getting the vote?

[Lord Thomas of Gresford]

The noble Lord has eschewed acting on behalf of the interests of prisoners in his constituency. Who acted on their behalf in the absence of the noble Lord? To which agency was it left to represent them in any of the problems that a Member of Parliament might normally address in any constituency?

[Lord Campbell-Savours]

Can I help?

[Lord Knight of Weymouth]

My noble friend can help me in a moment, once I have had a chance to help myself. The noble Lord, Lord Thomas, raises a question that is right at the heart of the legal case as I understand it and as interpreted by the BBC. John Hirst, who took the case to the European Court said:

“I’d read books that said if you want to change something you start up a pressure group, and then you put pressure on MPs and then you get things changed in parliament. Well that’s alright if you’ve got the vote and you’ve got some clout behind you. When you’re a prisoner, the only thing you can do if you want to complain and no-one listens is riot and lift the roof off—which isn’t the best way of going about things. Because we didn’t have a vote, there was no will in parliament to change anything”.

That is at the root of why he brought the case and, I guess, why he won it.

If a prisoner who had been a constituent of mine, or whose address was in my constituency, had written to me with a case when I was a Member of Parliament, I would have taken it up on their behalf, but I was unwilling to do so for people who happened to be resident in my constituency at Her Majesty’s pleasure. That was most difficult in respect of the large number of foreign nationals who were in Verne prison in my constituency. It was very difficult for them to get anyone to listen to them. It would have been a significant resourcing issue for me if word had got around the prison that they had a local MP who was willing to do all their legal work for them.

[Lord Thomas of Gresford]

Never mind the resources—is the noble Lord saying that he was happy that there were people in his constituency, whether they were there at Her Majesty’s pleasure or whatever, who had no political representation or access to Ministers through a Member of Parliament? Was he happy that people who had no home addresses that they could give to the constituency MP where they had formerly lived were left without any resource or recourse at all?

--- Later in debate ---

[Lord Thomas of Gresford]

Does the Minister agree that if the noble Lord, Lord Knight, is right, the absence of a vote is not the only problem that prisoners have to face? If they do not belong to any particular constituency, they have no parliamentary representation and nobody who can act on their behalf in dealing with the Government.

[Lord McNally]

Each Member has to make their own decision. It is interesting, though, going back to another issue—