Crown Prosecution Service

Debate between Lord Wallace of Tankerness and Lord Clinton-Davis

Monday 23rd February 2015 Lords Chamber

[Lord Wallace of Tankerness]

My Lords, I think it is fair to say that the Crown Prosecution Service is already doing much to improve efficiency. Obviously, we are well aware of the review undertaken by Lord Justice Leveson. The CPS finds it a very constructive piece of work. I can assure my noble friend that it is being given active consideration by the CPS.

[Lord Clinton-Davis (Lab)]

Is the Minister aware that legal practitioners are increasingly voicing their apprehension about the efficacy of the Crown Prosecution Service? What discussions has the Minister had with the practitioners? Is he not concerned about their lack of support for the CPS?

[Lord Wallace of Tankerness]

My Lords, I have not had the discussions that the noble Lord asks about but I am sure that my right honourable friend the Attorney-General is regularly in touch with all parts of the profession that have an interest in and are working with the Crown Prosecution Service. I have mentioned the cost savings that have had to be made and it should be put on the record that it is greatly to the credit of the staff working for the Crown Prosecution Service that they have sought to make these efficiencies while maintaining quality.

Justice and Security Bill [HL]

Debate between Lord Wallace of Tankerness and Lord Clinton-Davis

Tuesday 6th November 2012 Lords Chamber

[Lord Clinton-Davis]

To ask Her Majesty’s Government how they will respond to the view expressed by the Equality and Human Rights Commission that the proposals in the Justice and Security Bill [HL] regarding closed material procedures are incompatible with the Human Rights Act 1998.

[The Advocate-General for Scotland (Lord Wallace of Tankerness)]

My Lords, Her Majesty’s Government disagree with the EHRC’s analysis. Case law shows that closed material proceedings can occur compatibly with the right to a fair trial in Article 6 and the other rights contained in the convention. CMPs are explicitly made subject to Article 6 in the Bill. The UK Supreme Court affirmed as recently as last year in the case of Tariq that a procedure involving CMPs was compatible with Article 6 of the European Convention on Human Rights.

[Lord Clinton-Davis]

The proposals regarding CMPs are controversial and difficult, are they not? How do the Government now propose, as they must, to deal with the powerful criticism of the Equality and Human Rights Commission and others that CMPs are incompatible with a fair trial, in breach of Article 6 of the European Convention on Human Rights and fail to define clearly the national security concerns which are claimed to lie at the heart of the Government’s proposals? Are we too late to intervene and discuss the position with this body?

Justice and Security Bill [HL]

Debate between Lord Wallace of Tankerness and Lord Clinton-Davis

Tuesday 19th June 2012 Lords Chamber

[The Advocate-General for Scotland (Lord Wallace of Tankerness)]

My Lords, the United Kingdom’s security and intelligence services do superb work in keeping us safe. But if we are to be true to the democratic values that they fight to defend, it is right that their actions should be subject to proper judicial and parliamentary scrutiny.

Every Government must find a way to resolve the competing demands of liberty and security. It is one of the most important challenges to government, and one of its key responsibilities. We need to consider with great care how we strike that balance. I can assure your Lordships that in bringing forward the Bill, Ministers have sought to exercise the care required to strike that balance.

It is because the Government are not satisfied that our system is delivering this scrutiny as well as it should be that we are bringing forward the Justice and Security Bill. The Bill seeks to address three widely recognised problems. First, a number of civil cases cannot be heard by a judge because they hinge on national security-sensitive evidence that cannot be disclosed openly. At present the Government’s only options are to ask the courts to strike out such cases as untriable or to try to settle them, often for large sums of money, even where they believe that a case has no merit. Secondly, a remedy in intellectual property law has recently been extended to allow someone bringing a claim outside the United Kingdom to apply to a court in London to force disclosure of intelligence information held by the British, including information provided by our allies. This is already seriously undermining confidence among our most important partners, including the United States. Thirdly, oversight of the intelligence community lacks independence from the Executive and has too limited a remit to ensure full and effective accountability.

The response to these problems that I am outlining today has its origin in the Justice and Security Green Paper published last year and noble Lords will be aware that the proposals it contained were the subject of extensive debate by the public, stakeholders and the media. The Government listened carefully to the views received during that consultation. While many respondents acknowledged the underlying problems that our proposals were trying to sort out, there was also considerable concern that our plans for closed material procedures—so-called CMPs—were excessively broad in scope and risked undermining this country’s proud tradition of civil liberties.

The Government’s position has always been that protecting the public should not come at the expense of our freedoms. We have therefore extensively revised our proposals by narrowing their scope and strengthening safeguards. The case I want to make today is that the plans in the Bill are sensible, proportionate and targeted at a genuine and serious problem.

[Lord Clinton-Davis]

I take it that the noble and learned Lord is aware of the severe criticisms launched by Mr Andrew Tyrie, the Member of Parliament for Chichester. He has come to the conclusion that the proposals in the Bill,

“offend the principle of open justice”.

When the noble and learned Lord says that these issues have been ventilated, has he taken into account the views that have been expressed?

Legal Aid, Sentencing and Punishment of Offenders Bill

Debate between Lord Wallace of Tankerness and Lord Clinton-Davis

Wednesday 7th March 2012 Lords Chamber

[Lord Clinton-Davis]

If there is no consensus between the experts, what happens then?

[Lord Wallace of Tankerness]

It is very evident. We want to encourage joint expert reports, but clearly there will be cases when that is not possible because there is a division of opinion. In our debates on Monday evening, the noble and learned Baroness, Lady Butler-Sloss, indicated some of the very conflicting expert reports in cases she had heard about shaken baby syndrome. That is not clinical negligence, but it is clearly an example of conflicting reports. Nevertheless, where it is possible to go towards joint expert reports, it should be encouraged.

My noble friend Lord Thomas of Gresford also quite properly drew attention to the fact that while we have quite rightly focused on some of the very serious cases and consequences of clinical negligence, in many cases of clinical negligence the damages could be under £20,000. Your Lordships may be aware that the Government have recently announced the extension of the low-value claims process for personal injury claims. We are working closely with the National Health Service Litigation Authority and claimant lawyer representatives to set up a pilot for dealing with low-value clinical negligence cases. These discussions are ongoing. They will be a valuable way of trying to identify ways in which some of the lower value cases can be dealt with.

My noble friend drew the attention of your Lordships’ House to the scheme in Wales under the NHS Redress Act 2006. Clearly that is something we would look at, although I note that it is tied in with a complaints and concerns regime and does not necessarily replace the existing judicial system. Claimants are still free to pursue a claim. I have always thought that it is one of the strengths of devolution that different ways are found in different parts of our United Kingdom to address issues such as this. It is only right that we look at the experience in different parts of the United Kingdom, and if there is something to learn we should be willing to learn it.

I am obliged to refer to government Amendments 26 to 30 and 58 to 67. They are technical in nature. My noble friend Lord McNally has written to all Peers describing their detail, so I do not propose to detain the House further.

We have listened to very strong representations in earlier debates about clinical negligence in the context of perinatal and neonatal cases. We have sought to address it through conditional fee agreements, which are increasingly part of the way in which clinical negligence cases are dealt with, and through the exceptional funding. We are ensuring that there is provision in other cases. As I have indicated, I regret that we have not been able to have a meeting of minds with the noble and learned Lord, Lord Lloyd of Berwick. I will place the Ministry of Justice’s calculations in the Library of your Lordships’ House. When those who wish to look at them have done the calculations and wish to come back to us, we will seek to give them a response. In these circumstances, I ask the noble and learned Lord to consider withdrawing his amendment.

Legal Aid, Sentencing and Punishment of Offenders Bill

Debate between Lord Wallace of Tankerness and Lord Clinton-Davis

Monday 5th March 2012 Lords Chamber

[Lord Clinton-Davis]

What advice did the Law Society and the Bar Council give to the Government about this particular provision?

[Lord Wallace of Tankerness]

The noble Lord indicated that in his contribution to the debate. I am seeking to reassure noble Lords that that reassurance is there on the substance. In individual cases it will be unlawful for the Lord Chancellor to interfere in any way. Moreover, a number of features incorporated in the Bill provide for transparency and parliamentary oversight.

Legal Aid, Sentencing and Punishment of Offenders Bill

Debate between Lord Wallace of Tankerness and Lord Clinton-Davis

Tuesday 24th January 2012 Lords Chamber

[The Advocate-General for Scotland (Lord Wallace of Tankerness)]

My Lords, obviously, as the noble Lord, Lord Bach, said in his introduction, the purpose of the amendment is to make legally aided advice, assistance and representation available for all employment matters.

I have said from the Dispatch Box on one or two occasions in the context of these debates, and I have heard my noble friend Lord McNally say it—no doubt, he has also said it on many occasions when I have not been here—that we are faced with a need to prioritise resources. Clearly when individual issues are properly the subject for debate, it is always possible to make a case for that particular sphere of law or to bring that particular subject within scope. That has been evident from the contributions of noble Lords in this debate. Given the limited pot—it is not a bottomless pocket—my noble friends have had to address how we prioritise. As has been said on numerous occasions, we believed that the more important objective and priorities were those involving life, liberty or homelessness. As a result, we did not feel able to include within scope the employment law issues described by the noble Lord, Lord Bach, and others in the context of the amendment.

It is also important to remember that one of the other things that we have looked at and that has been addressed is where there are other opportunities for funding to be made available. That was touched on particularly by the noble Lord, Lord Bach, when he moved the amendment. Also, employment tribunals were designed, at least initially, to be simple. Their purpose is to enable parties to make or respond to a claim without the need for legal representation. While we recognise that clients find advice in the preparation of their case undoubtedly useful, when these tough choices had to be made we did not consider that this group of clients were generally likely to be in the category of particularly vulnerable people whom we have provided for in other parts of the Bill. We do not accept that the tribunal cannot be accessed or that justice cannot be obtained without legally aided advice.

In fairness, the noble Lord, Lord Bach, quoted from the Government’s consultation paper, in which we outlined other sources of advice such as the free helpline of the Advisory, Conciliation and Arbitration Service or the trade unions. I take the point made by the noble Lord, Lord Clinton-Davis, that numerous people are not in trade unions, but a considerable number of people are still covered. I seem to recall USDAW announcing earlier this week a very successful action that it had taken on behalf of its members in branches of Woolworths. It had managed to get claims. I am sure the noble Lord would agree that there is still an important and valid role for trade unions.

ACAS also offers a free arbitration service for some disputes concerning unfair dismissal or flexible working. In some cases, an employer may indeed be willing to engage in civil mediation. There is also help available from the pay and work rights helpline and the redundancy helpline, and the tribunal’s public inquiry line can provide factual information although, I accept, not legal advice. Again, in some cases, voluntary organisations or charities may be able to offer assistance.

A number of noble Lords mentioned other issues that are not immediately pertinent to the debate on legal aid. DBIS is still consulting, although it might not have even got to consultation yet. I will certainly make it my business to ensure that—

[Lord Clinton-Davis]

Many of the people we are talking about are inarticulate. In my view, they have to have some sort of professional advice, but advice on the spot that is legally articulated on their behalf. No one else will do it. What does the Minister say to that?

[Lord Wallace of Tankerness]

There is a distinction between advice that is preparatory to a tribunal and advice in representation. I will check this but at the moment what has been sought is in many respects advice preparatory to tribunal. The number of cases where there is actual representation is very small.

[Lord Clinton-Davis]

Will merely advising people and preparation be enough? Is it not vital that those in this position should be able to put their case to the tribunal? They cannot always do that by themselves, can they? They need professional advice.

[Lord Wallace of Tankerness]

My Lords, in many cases professional advice by representation is not actually available. I have already said that I do not for a moment deny that the advice that people get in the preparation of a case is valuable—of course it is—but we get back to the issue of looking at the competing priorities for funding from a limited pot. We have said that cases involving life, liberty and homelessness are more important priorities. We are looking, too, at circumstances in which the tribunal is itself intended to be a forum in which people could much more readily access such things informally, without the need for, or recourse to, lawyers. When I was a law student, the idea was still alive and fresh. That difficult choice was made against a background where there are other sources of advice available—I shall not list them again—and in the context of a tribunal that is intended to facilitate those who do not have representation. I do not shy away from it being a difficult choice, but it was made against other competing priorities.

I was about to take the point that the noble Lord, Lord Howarth, and the noble Baroness, Lady Turner, made. We have mentioned other proposals that have been on the airwaves. A different department is responsible, but I will ensure that these concerns are drawn to the attentions of BIS, and will respond to the more specific points when it is possible to draw them to the attention of the department whose responsibility they are. I think that I am right in saying that in some cases the consultation has not been completed.

--- Later in debate ---

[Lord Clinton-Davis]

I am rather frightened that too many people are going to find themselves without any remedy. That is bound to arise in many instances. I hope that the Minister will sympathise with them because having an effective remedy is vital. I am not talking about professional advice but about being able to take something to a tribunal and being heard—and being heard equitably. It is not simply that people of this kind—we are talking about consumers at the moment—ought to feel that when they are treated shoddily their point of view will be heard. I am afraid that that is unlikely to be the case and they will be sort of disfranchised. People who are inarticulate and disfranchised can resort to rather unhelpful remedies.

[Lord Wallace of Tankerness]

My Lords, the effect of the amendment moved by the noble Lord, Lord Beecham, would be to make civil legal services available for consumer matters. There is a degree of familiarity about the pattern of these debates. I do not think that I am speaking out of turn in saying that the previous Administration and the Labour Party went into the last election with an understanding that the legal aid system would have to be reformed. What I find difficult in listening to the debates—and I hope that I am not offending anyone—is the sentiment, “Lord make me chaste, but not just yet”. We must reform legal aid, but when examples are presented people say, “We don’t want to reform that part of it”.

Legal Aid, Sentencing and Punishment of Offenders Bill

Debate between Lord Wallace of Tankerness and Lord Clinton-Davis

Wednesday 18th January 2012 Lords Chamber

[Lord Wallace of Tankerness]

My Lords, as I have sought to explain, we are trying to recognise in the Bill that there are limited resources and to ensure that those limited resources are best and most fairly targeted. I think that in asking the question the noble Lord, Lord Bach, accepted that not all abuse should lead to a claim. That is what we are seeking to do: we are trying to strike a balance between where it would and would not be appropriate for legal aid to be made available. That is why, along that continuum, it is at the serious end where we have sought—

[Lord Clinton-Davis]

Did the Minister really say that in no circumstances would legal aid be available where the infringement immediately appeared to be minor? Does he not recognise that lawyers often come across cases that appear to be minor but later become rather more serious? What remedy is available in such an instance? Is the Minister really arguing that, once it is decreed that a situation is minimal, there is no possible remedy?

[Lord Wallace of Tankerness]

It is not that there is no possible remedy; it is a question of whether legal aid would be available—whether it is within scope. I do not shy away from the fact that these are difficult judgments to make, but the resources are not unlimited. The noble Lord, Lord Clinton-Davis, refers to a minimal infringement. If the resources are limited, it is very difficult to see why a minimal infringement, which may be one of error, should attract the same level of resources as a case where there has clearly been a misuse or abuse of power on the part of a public authority.

[Lord Clinton-Davis]

I am talking about the solicitor who originally investigates a case being not very competent. He concludes that the case is minimal but he might be wrong. Why should legal aid not be available later?

[Lord Wallace of Tankerness]

I am not sure that I fully understand the point that the noble Lord is making. Obviously, if at a later stage a case clearly qualifies for legal aid under the definition here, one would expect legal aid to be available. Furthermore, in many of the cases that we are talking about where legal aid might not be available, conditional fee agreements might provide a viable alternative where there is clearly merit in the case but it would not qualify under the definition here.

Privacy Injunctions

Debate between Lord Wallace of Tankerness and Lord Clinton-Davis

Monday 23rd May 2011 Lords Chamber

[Lord Wallace of Tankerness]

My Lords, my noble friend is right to quote at length Article 10. As I said earlier to the noble and learned Lord, Lord Falconer of Thoroton, these issues and the tensions between Articles 8 and 10 were considered at considerable length during the passage of the Human Rights Bill and express provision was made in Section 12 of that Act to give further guidance to the judiciary to establish that balance.

The other point that I would make, in substantially agreeing with my noble friend, is that in my experience, in politics and law, unless you have been involved in the case you usually do not know all the facts of the case. Very often that is in terms of sentencing; it is only the judge and the people involved in the case who know all the facts and on the basis of those facts come to the judgment that they make. That is a duty and that is what they do.

[Lord Clinton-Davis]

Would the Minister underline for the benefit of the Joint Committee that the Law Society and the Bar Council have very useful views to communicate? They are able through their membership to speak authoritatively about this matter. Many of the lawyers who are skilled in this field have a useful contribution to make.

[Lord Wallace of Tankerness]

I would certainly agree with the noble Lord. No doubt when the Joint Committee comes to take evidence, the professional bodies, the Law Society and Bar Council, will be bodies that it will want to seek evidence from—as well, no doubt, as from individuals who have much experience to bring to bear on these important matters.

Parliamentary Voting System and Constituencies Bill

Debate between Lord Wallace of Tankerness and Lord Clinton-Davis

Tuesday 8th February 2011 Lords Chamber

[Lord Clinton-Davis]

Will the commission be able to extend the period of consultation where due notice is given? I am thinking of illness or other good reasons interceding.

[Lord Wallace of Tankerness]

My Lords, in order to give the Boundary Commissions a clear direction on this, we have indicated that there will be a maximum of two days. I do not think that anything would prevent a postponement of two days. We are giving the commissions a degree of flexibility, but the period will be a maximum of two days to make it clear that the hearings cannot go on and on. They are intended to be public engagement, not lengthy inquiry hearings.

In response also to the point made by the noble Lord, Lord Lipsey, it is open to the commissions to set clear procedures for the hearings to ensure consistency. However, the chair will be able to ensure that the procedure for the hearings can adapt to local or unexpected circumstances. This balance of discretion for the commissions and the clear powers for the chair set out in legislation makes the procedures robust against judicial review.

Let us not forget that the Boundary Commissions are each chaired by a High Court judge—or, rather, they are chaired by the Speaker, but the deputy chairs will be High Court judges or their equivalent. I have no doubt whatever that sensitivity to due process will be paramount among their concerns. There has been no suggestion throughout our long debates that the Boundary Commissions have been anything other than scrupulously independent and committed to fairness in their deliberations. They are guarantees of the process being fair. However, let me be clear what these amendments envisage. It is not a return to adversarial inquiries dominated by legal argument. That would be to invent what we know, from experience, does not work. It is new; it is a culture change; and we believe it is a better concept—an open hearing, neutrally and fairly chaired, at which the people can have their say. It is not a substitute for the deliberations of the Boundary Commissions, but another means for people to tell them what they think.

We will no doubt hear arguments about the importance or otherwise of legal professionals being involved in chairing hearings. The commissions will have absolute discretion to appoint individuals who may or may not be legally qualified, and we have tabled an amendment to broaden the purposes for which assistant commissioners may be engaged. If the commissions consider that there is merit in using a suitably legally qualified person to chair the hearings—and we recognise that a legal skill set may well be advantageous—it is open to them to do so. However, if there are other individuals, such as senior public servants or commission employees, who are equally able to chair these proceedings that are designed to engage the public, there is no way in which they should be disqualified from doing so—indeed, they should be allowed to do so.

It is worth considering that the Parliamentary Constituencies Act 1986 makes no provision that the existing inquiries must be chaired by a legally qualified person, or indeed be involved in any of the elaborate processes that have grown up around these inquiries. What that legislation fails to do—a failing that our proposals address—is to make the purpose of a hearing sufficiently clear. The result is that the commissions are exposed and inquiries are no longer about people having their say but about exhaustive legal arguments designed to avoid a judicial review.

I expect that we will hear also that an oral stage requires a chair who is independent from the commissions, and who must produce a lengthy deliberative report. The Government do not accept this premise. The commissions themselves are independent, so there is no need for further separation between a commission and the arguments being put forward. The representations made at the hearings will be taken into consideration by the commissions—the amendment requires them to do it—and it will be for them to consider how best to do this. Weighing the representations made in writing, and those put in person at hearings, against all the other factors in the legislation, and against the proposals made across the regions, is the point of having a Boundary Commission. We do not require a further intermediate step.

We propose something that is culturally different from what has gone before. I note the amendments to the amendment that have been tabled, and I am grateful for the dialogue that I have had with the noble and learned Baroness, Lady Scotland. However, at the end of the day it boils down to a difference in culture and approach. Several amendments state: “delete ‘hearing’, insert ‘inquiry’”. That is at the heart of what this is about.

Parliamentary Voting System and Constituencies Bill

Debate between Lord Wallace of Tankerness and Lord Clinton-Davis

Tuesday 18th January 2011 Lords Chamber

[Lord Wallace of Tankerness]

If the House feels that that would be helpful, I certainly am willing to do so. This amendment, which, as I think I said, was moved with great thoroughness by the noble and learned Lord, Lord Falconer, and spoken to by noble Lords on all sides of the House, would, as we have indicated, provide that constituencies would usually be within the range of 95 per cent to 105 per cent of the electoral quota unless the Boundary Commission considers that there are overriding reasons why that should not be the case, in which case the Boundary Commission would have the discretion to propose constituencies that vary by up to 10 per cent of the electoral quota. I understand that the intention is to allow for equality of votes in the majority of seats. Noble Lords on all sides of the House have indicated the importance of the principle of equality of votes and that of one vote one value and seek a greater flexibility than exists at present to take account of communities’ geographical ties.

We could have taken an absolutely rigid stance and divided the total electorate by the relevant number and not allowed for any flexibility whatever. However, our proposed range of 10 per cent—5 per cent either way with a total flexibility of 10 per cent—offers flexibility. Our concern about going wider than that, or giving the Boundary Commission the opportunity to go wider than that, is that it would open the way for the kind of inequalities in seat sizes which exist at present—I think the noble Lord, Lord Lipsey, indicated that there was too great an inequality at present—albeit that would be limited by the terms of the noble and learned Lord’s amendment if it were accepted. Nevertheless, such a step would still permit too great an inequality by having a band of up to 20 per cent.

It is worth reminding the House that the current legislation states that the electorate of any constituency shall be as near the electoral quota as is practicable. That might be thought in some cases to be a more stringent target than the range that is being put forward under the Bill, where a variation of 5 per cent either way is allowed. Under the existing rules for the Boundary Commission that requirement is balanced against all the other rules and factors. However, under the measure that is proposed, equality and fairness in the weight of the vote, which are enshrined in Rule 5 of the present rules, would end up being simply one consideration among many. Variations start to emerge when the Boundary Commission recommendations are published and subsequently debated. That is not just the view of the Government but the view of independent academics who have studied the process and who have stated that in effect the public consultation process is very largely an exercise in allowing the political parties to seek influence over the commission’s recommendations by using a wide variety of evidence and deploying the rules concerning inconvenience and the breaking of local ties to promote their electoral cause.

I agree with the intention behind the amendment but our concern is that it would suffer the same fate as the existing rules. Like the existing rules it has at its core equity and equality of votes but we fear that it would nevertheless end up being the route by which vested interests, or other interests such as those which noble Lords in all parts of the House think are perfectly legitimate, such as those of people in communities, would override equality and fairness. I do not agree that it is an inflexible proposal. There is flexibility for constituencies to vary in size by as much as 10 per cent of the quota—5 per cent each way—and that is a considerable margin.

The British Academy’s report on the Bill noted:

“This new set of rules that the Boundary Commissions must apply is clear and consistent”,

and,

“the rules set out in the Bill are a very substantial improvement on those currently implemented by the Boundary Commissions (they have a clear hierarchy and are not contradictory)”.

My concern, and the concern of Ministers, is that the amendment before us would compromise this and open the door for numerous arguments that special circumstances apply. I believe that would make the commissions’ task far harder. Boundary reviews would become more drawn out, and the result—

[Lord Clinton-Davis]

If the Minister is arguing that the amendment is not quite right, would it be possible to put forward some alternative, or is he closing his mind to that possibility altogether?