Queen’s Speech

Debate between Lord Thomas of Gresford and Lord Phillips of Sudbury

Thursday 9th May 2013 Lords Chamber

[Lord Phillips of Sudbury]

Plymouth. I thank my noble friend Lord Smith very much for that vital piece of accuracy. I rather get the impression that the turnout throughout the country was hovering at around 30%, on average. If you consider that among voters aged under 30, of whom fewer than one in four turned out at the previous general election, possibly only one in 10 cast their votes last week. I do not think that anyone sitting here believes that we are in our prime as a democracy or a Parliament.

We should never forget that the expenses scandal is not a thing of the past. I did a bit of canvassing this time; and the expenses scandal has marked the mind of the British public much more deeply than we would wish, I fear. We all know well about the Leveson inquiry and what it showed in terms of the press, the police and so on. All in all, we are in a dangerous phase, particularly given the continuing crisis in the financial and banking sectors.

A significant element in this disillusion relates to the astonishing amount of complex law that we churn out from this place, year after year. It may also surprise your Lordships that our Library does not stock a complete set of statutes from this side of 2009. You cannot even obtain loose-leafed copies of statutory instruments from 2010, for example. However, those from 2009 are available. In that year, this place produced in excess of 16,000 pages of new statute law; the split was roughly one-quarter Acts of Parliament and three-quarters statutory instruments.

There are a number of lawyers here; all of us, I suppose, are lawyers of a sort because we legislate this stuff. However, we know very well how extraordinarily complex legislation has become because of the extent to which any new law has to fit into existing law. The situation becomes overwhelming, and I have noticed that in the course of our deliberations on Bills there has been a marked reduction in the number of Peers who sit here trying to grapple with amendments that tax the wisdom of Jove.

For example, since 1984, we have passed more than 100 criminal justice Acts of one sort or another and have brought into existence more than 4,000 criminal offences. I suspect that that represents rather more than were created in the whole of our previous history. EU law finds reference in 10% of our legislation, and on top of that we gold-plate EU legislation to an astonishing extent. These are not my statistics; they come from the fine document by the parliamentary draftsmen to which I referred. They provide an example of directive 2002/42, which consisted of 1,167 words in the English text issued from Brussels. By the time we had ploughed it into our own legislation, it had gone from 1,167 to 27,000 words. What is it about this Chamber, using God’s own language, English, that we manage to produce this—I am tempted to use a very rude word—excess of legislation? So far as the people of this country are concerned, it is oppressive, distancing, expensive, disillusioning, disengaging, centralising and dependency-making—you name it.

[Lord Thomas of Gresford]

Incomprehensible.

[Lord Phillips of Sudbury]

Incomprehensible, as my noble friend says—to lawyers, inter alia. There are a number of senior judges sitting here and I am sure that they would be able to relate wonderful tales about the stuff that has come before them. I heard from one justice of the Supreme Court the other day that they were about to give judgment when one of them suddenly thought, “Hey, wasn’t something passed in 1995?”. When they went back to look, sure enough there was, and they rewrote their judgment. I shall not name names.

The truth is that this state of affairs is brought about by a combination of circumstances, one important aspect of which the noble Lord, Lord Cormack, recently referred to—the production-line legislation in the other place and the guillotining Motions that render much of the legislation there not merely inadequately considered but not considered at all. Large chunks of legislation come here never having been debated. Added to that, there is the manifesto theory of government—that if it is in your manifesto, you are entitled to legislate for it. The fact that nobody reads or buys the manifesto is neither here nor there. In the 1945 election, the manifesto for the Attlee Government was, I think, 15 pages long, whereas for the current Government it is 115 pages, but that is apparently of no importance.

Incidentally, the Queen’s Speech talks about bringing in 15 new statutes, and I believe that we have five carry-over Bills. I hope that under the health and safety legislation, which we are going to simplify, we will be allowed to have back the brushes in our gentlemen’s toilets. Noble Lords may not have noticed but they have been withdrawn on health and safety grounds. Therefore, one major improvement will be coming our way, God willing.

As I said, all this creates confusion in the minds of the public because we are endlessly changing things. We are not content to leave a law in place for 10 or 20 years. A new Minister in a new Administration says, “I’d like a new Education Act”, or whatever it might be. The poor old public are punch drunk. I repeat that there is a degree of resentment at what, too often, are seen as impositions by us. What is more, they are careless and unnecessary impositions. One sometimes has the feeling that some of this legislation is trophy stuff that Ministers can paste to their lavatory walls back home.

[Lord Thomas of Gresford]

Or use it.

[Lord Phillips of Sudbury]

Indeed, or use it. There is a serious issue of demoralisation in a literal sense—de-moralisation. The more law you have, the more you take from the citizens of the state, in whatever situation, the need to reach their own decisions or to think through the consequences of acting in this way or that. In effect, you provide a rule that all must abide by, and too often the statutory rule is the rule. As I said, it discourages businesses, societies and organisations from taking responsibility for their own affairs, and all that has had an indirect impact on the public service ethos. I do not think it is at all contentious to remark that in this age community life is under severe attack. There is a real dilution of the strength of communities throughout our land, and those communities are the building blocks of a good society—I do not think that anybody disputes that. Consider today how few of what one might call the natural elite are engaged in their communities. My own profession which used to be the classic pillar of local communities is today far less engaged in community life than it has ever been—to the great loss of community life and lawyers as a group because there is huge fulfilment and respect to be gained. It is not just lawyers, but everyone. This is a deep matter.

I shall finalise by quoting from When Laws Become Too Complex. Its conclusion is headed:

“Conclusions and a Vision for Good Law … Mitigating causes of complex legislation”.

It states that,

“there needs to be a shared ownership of, and pride in, our legislation”.

How I agree. Consultation today is too often superficial, if not insincere. Too often Governments of all persuasions make their minds up and at the last toss of the dice say, “We’ll consult”. They do and vast numbers of people reply, but nothing changes and the legislation goes on. We have consulted ha, ha. The conclusion continues:

“There also needs to be a stronger incentive on all involved in the process to avoid generating excessively complex law, or to act positively to promote accessibility, ease of navigation, and simplification”.

That is from the parliamentary draftsmen who too often are blamed in this House and the other place for the state of our Bills when more often than not it is our fault, not theirs. Despite those unanswerable recommendations by the draftsmen, we need to look much more at implementation and enforcement of the laws that we have. It seems to me that we legislate because we have not implemented what is already there, or implemented it fairly, effectively or comprehensively.

Education in citizenship is not a voluntary or optional extra in our schools. If we have created a society of such barbaric complexity that very often we ourselves cannot understand quite where things are, how can we expect ordinary, decent young kids to feel part of this enterprise, to feel ownership of it or to feel responsible for it, if we do not equip them with the basic amount of information, knowledge and understanding to grapple with it and develop a will to be citizens? It is not just a name. I hope that in our deliberations over the next few years we will try always to think how Bills will impact on the good, ordinary citizens of this country and how we can improve.

Lastly, I must say a word about enforcement on legal aid. I shall not labour the point as my noble friend Lord McNally has had enough of it. He and the Government have said that they are committed to looking carefully at the impact of the legal aid changes that we have made. I think that after a year there is a commitment to look at sensitive aspects, and I hope that we will do that. To have all this law, which is not voluntary or optional, and then not provide citizens in most need with legal help, and without which the rights we legislate for them are cynical, is the worst of all worlds.

Legal Aid, Sentencing and Punishment of Offenders Bill

Debate between Lord Thomas of Gresford and Lord Phillips of Sudbury

Monday 5th March 2012 Lords Chamber

[Lord Phillips of Sudbury]

I am sure that I am not the only one who wonders about the point eloquently made by the noble and learned Baroness, Lady Butler-Sloss, about informal undertakings given in magistrates’ courts, for example. Can I presume that that is covered in heading (iv) of his Amendment 39?

[Lord Thomas of Gresford]

Yes, that is certainly the case.

Legal Aid, Sentencing and Punishment of Offenders Bill

Debate between Lord Thomas of Gresford and Lord Phillips of Sudbury

Tuesday 7th February 2012 Lords Chamber

[Lord Thomas of Gresford]

I shall add that he was saying it in the context of a married woman, who had no separate identity in those days. She was regarded as a part of her husband.

[Lord Phillips of Sudbury]

Hear, hear!

[Lord Thomas of Gresford]

I do not know if my noble friend is agreeing with the proposition, but in these more enlightened days we would all agree that the law on that particular aspect was an ass.

Police Reform and Social Responsibility Bill

Debate between Lord Thomas of Gresford and Lord Phillips of Sudbury

Thursday 16th June 2011 Lords Chamber

[Lord Phillips of Sudbury]

My Lords, I rise to speak to the amendment tabled in my name and that of my noble friend Lady Tonge. Like the noble Baroness, Lady D’Souza, I will abbreviate my remarks in view of the opening comments by the noble Lord, Lord Campbell-Savours, with which I wholly concur. Indeed, my amendment differs from his and from that in the name of the noble Baroness, Lady D’Souza, and my noble friends Lord Lester and Lady Tonge, in only one particular respect. The amendment moved by the noble Lord, Lord Campbell-Savours, allows—indeed, requires—a justice of the peace to get the advice of the DPP on the advisability of granting a warrant. The amendment tabled in the name of the noble Baroness, Lady D’Souza, and others would allow the court to receive advice from the DPP. I am adamant that any advice given with regard to these matters, which are intrinsically important, must be in open court. It is for the DPP to take the opportunity which is available under both those amendments, I think, to go to the court and argue the matter in open court, not by way of written private advice.

I think that the status quo is perfectly satisfactory and that meddling with citizens’ rights in the age of the overmighty state is extremely dangerous. Like the noble Lord, Lord Campbell-Savours, I drafted my amendment and put it down before I saw the evidence submitted by Justice, Liberty and the Joint Committee on Human Rights. It is worth putting on the record not only that the Joint Committee argued long, fully and with conviction that the arrangements in this Bill are wrong in principle and in practice and ended up, I am happy to say, taking exactly the line that the amendment tabled in my name takes. The same was true of Liberty. Justice simply wanted Clause 154 removed alltogether, leaving things entirely with the status quo.

At least my amendment will give further strength to the procedure if that is needed. I do not think that it is but I put it forward in a conciliatory way. As has been said, it is worth briefly repeating that we already have judicial oversight under existing law. It is already the practice to deal with these extremely difficult applications for warrant only before a district judge—who we used to call a stipendiary—who is not only a professional judge but also, because they are heard before the City of Westminster Bench, is a specialist in matters of this type. The district judges concerned deal, for example, with terrorism extradition cases. The judge, whoever he or she is, must be satisfied that there are reasonable grounds that the offence has been committed and that there is admissible evidence which, if uncontradicted, could establish the elements of the offence.

There is also of course state immunity. State immunity was exercised in the case of General Mofaz in February 2004 when he was saved from the issue of a warrant on the grounds of state immunity. Let us not forget that the Attorney-General has the right to intervene and issue a nolle prosequi, which puts an end to it. The Attorney-General will do that on grounds of public interest. As I have said, this is a misguided provision. Perhaps I may quickly read the conclusion of the Joint Committee on Human Rights, which is extremely clear in explaining the difference between the Bill and my amendment. It states that “The difference between notification” of the DPP “and consent” of the DPP,

“would be significant. On notification, even if the DPP applied the general prosecutorial test in determining whether to intervene in an application, the ultimate decision on whether to issue an arrest warrant would lie with the Magistrate on the test applied at the present. By contrast, if consent is a precursor, then the determinative decision will in practice be that of the DPP”.

Finally, it is relevant to say that, in the Gourier case, Lord Wilberforce said that the right of the private citizen to apply for a warrant and to take a prosecution is,

“a valuable corrective against the inertia or partiality on the part of authority”.

On another occasion, Lord Diplock made comparable remarks. For those reasons, it would be a retrograde step to approve the Bill as it stands.

[Lord Thomas of Gresford]

I shall speak to the amendment in the names of my noble friend Lord Macdonald of River Glaven, who cannot be here this evening, and myself. From the position of practitioners with hands-on experience of the criminal courts throughout our legal careers, we believe that the existing system works perfectly adequately. I concur with the views that have already been expressed in that way. Few applications are made and, of those that are, most are rejected by the magistrate who is the highly experienced person. Why then is there a need to move away from the current position? We are told that it is because there are people who feel that if they come to this country they may be subject to a private prosecution and to arrest.

Those who feel that way in foreign countries simply do not understand the practice and procedure of our courts. It is strange to amend our law not because of a real problem but because there are people abroad who believe that a problem exists when it does not. We are moving from the position that if the Government want to introduce the question of the consent of the Director of Public Prosecutions, it should be made equally clear at the same time that the tests to be applied are those which would be applied in an ordinary criminal case in this country. No special tests will be needed for those from abroad and who face allegations of offences of universal jurisdiction.

We feel that the tests that are to be applied are those of the existing discretions of the Director of Public Prosecutions. I have been approached today by my noble friend Lord Carlile in his usual genial and understated way to point out that the tests applied by the DPP are in fact subject to change. The guidance has changed in some ways. My noble friend tells me that we are now on the seventh version of guidance issued to public prosecutors. If that is the case, it is perfectly simple to redraft on Report the amendment that we have put forward so that we put in a broader way that the same tests which apply to citizens of this country will also apply in the case of people who come to this country.

But there is a difference with private prosecutions. Let me say that no practising criminal lawyer has any time for private prosecutions. They generally fail, and generally they cause great harm and trouble to people. We feel that prosecution should be in the hands of people charged with those duties; namely, the Director of Public Prosecutions and the Crown Prosecution Service, which acts under the director. The distinction is that the arrest warrant in a private prosecution leads to trial. When the police arrest someone, there is an arrest, and then there is a consideration of evidence that is obtained between arrest and charge. The charge is brought on the advice of the CPS only where there is sufficient evidence for the case to go forward. At that intermediate stage, the charge does not exist in private prosecutions, and therefore the issuing of an arrest warrant leads, as I have said, straight to trial. We believe that safeguards are needed.

We start from the basis that there is no need to amend the existing position.

Parliamentary Voting System and Constituencies Bill

Debate between Lord Thomas of Gresford and Lord Phillips of Sudbury

Tuesday 8th February 2011 Lords Chamber

[Lord Thomas of Gresford]

I intervene very briefly because the noble Lord, Lord Rooker, reminded me of appearing in the planning inquiry in mid-Wales on the drowning of Dulais valley, which was proposed by his council, Birmingham council. We were concerned because the Secretary of State for Wales, Lord Cledwyn, was to take the decision, but the person who heard the inquiry came up from London; “Who was he?” and “What does he know about Wales?”. These were real concerns that affected the people who I was representing—for nothing, if it matters—in that particular inquiry. We would much have preferred to put our views before the Secretary of State for Wales directly—to the decision-maker—who we knew knew something about the issues. As it happened, the inspector held in our favour and was upheld by Lord Cledwyn, who made the final decision and announced that no valley in Wales would ever be drowned again.

That is an example of wishing to make representations not to the unknown person from London but to the real decision-maker. The government amendment would enable all the representations and the evidence given by objectors to be put in their raw condition to the boundary commissioners, without any intervening stage.

[Lord Phillips of Sudbury]

My Lords, while there has been a lot of anxiety in this House over recent weeks about what we are doing here, the debate that we have had on this very difficult amendment has shown just what an extraordinary resource of experience this place can provide.

I have three points to make. First, I would be most grateful if the Minister, in summing up this debate, could answer the forceful point made by the noble and learned Lord, Lord Falconer, that by having the public inquiry when he plans to have it—that is to say, after five weeks before all the written representations are in—surely deprives the oral hearing of being able to respond to the points that local citizens are making.

Secondly, I was much struck by what my noble friend Lord Marks said about the virtue of the timetable proposed by the Government, which gives a full 12 weeks for written submissions, until he rightly said that most members of the public will provide their opinions by that route and will not appear at the oral hearing.

My final point is to assist the noble Lord, Lord Martin, who asked the noble Lord, Lord Pannick, whether there could be cross-examination under the Government’s system, if I can call it that. The answer to that is yes. Amendment 39 in the name of the noble Lord, Lord McNally, specifically prescribes that cross-examination will be in the gift of the person conducting the inquiry under the proposals being put forward by my noble and learned friend, Lord Wallace of Tankerness.