Prison Reform
Lord Woolf Excerpts(8 years, 2 months ago)
Lords ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
The Lord Privy Seal (Baroness Stowell of Beeston) (Con)
My Lords, I am sorry, but if we are going strictly in turn, it is the turn of the Labour Benches. However, I know that the noble and learned Lord, Lord Woolf, has been trying to get in. Therefore, if we go next to Labour, I suggest that we then go to the noble and learned Lord, Lord Woolf.
Lord Faulks
I pay tribute to the noble Baroness’s contribution to reducing the population of women prisoners and her concern for them. Of course, she will be pleased that their number is lower than it has been for a decade. We hope that we can reproduce the best practice found in Holloway—albeit it is closing—and in the women’s centres in making sure that the arrangements in prison are those best suited for women and their rehabilitation.
Lord Woolf
My Lords, is it not right that the inflation in sentences—they are longer than they have ever been—is caused by action taken by Governments, and not by judges, to impose fixed sentences? These sentences form rocks that the rest of sentencing has to accommodate. If that were not the case, sentences would be shorter, because judges are prevented from imposing the sentences that they otherwise would by the fixed-sentencing policies of the Government of a particular time.
Lord Faulks
I am grateful for the contribution made by the noble and learned Lord. Of course, this Government and the coalition Government before them were very much against fixed sentences. It was the coalition Government who repealed, for example, provision in relation to indeterminate sentences for public protection. In the eight criminal justice Acts that were passed by the Labour Government, extraordinary inflexibility was given to judges in passing sentences—that is one of the results in terms of the prison population. We are endeavouring to give as many resources as we can to the Parole Board to make sure that those prisoners will be released when it is safe to do so.
Public Advocate Bill [HL]
Lord Woolf Excerpts(8 years, 3 months ago)
Lords ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
The Minister of State, Ministry of Justice (Lord Faulks) (Con)
My Lords, I thank the noble Lord, Lord Wills, for introducing this Bill and giving the House the opportunity to debate this important matter today. He was kind enough to pay credit to officials and Ministers in the Ministry of Justice who have engaged with him, and he has been helpful and constructive in explaining what lies behind this Bill. Let me make it clear at the outset that the Government share his desire to ensure that bereaved families and injured people are properly involved and supported throughout the investigation, inquest or inquiry process following a major incident.
There was unanimity in the contributions that your Lordships have heard, which echoes what lies behind this Bill. The noble Lord, Lord McNally, spoke of the sad history of disasters in football grounds and the sometimes inadequate inquiries that have followed those. He was right, however, to reflect on the improvements that have taken place, and he gave as a shining example the inquiry into the 7/7 disaster, conducted by Lady Justice Hallett.
The noble Lord, Lord Blunkett, who has particular experience of these issues, was absolutely right to praise Paul Goggins, who did so much in his modest way—I came across it briefly in committees—to help promote the interests of those so often neglected in such situations. The noble Lord made the important point that although cost must not be excluded from government consideration, we must think about costs further down the line.
The noble Lord, Lord Wood, and other noble Lords, made the point that these proposals augment rather than replace the existing mechanisms. Indeed, as I understand it, the noble Lord, Lord Wills, very much accepts that. The noble Lord, Lord Wood, also referred to the fact that, in the wake of these disasters, what confronts those who are sadly affected by them can be intimidating, and they are placed in a quasi-Rumsfeldian dilemma. He was right, too, to remind us of the Aberfan disaster and the dreadful noises made by the establishment in its wake.
A number of noble Lords, including the noble Lord, Lord Bach, referred to possible drafting imperfections. I know that the noble Lord, Lord Wills, is perfectly aware of the fact that there could be improvements, and the noble Lord made specific reference to them.
Notwithstanding those potential improvements, I reiterate that the Government are fully committed to making sure that victims have a voice and do not feel alienated from official processes. Indeed, I am pleased to say that much of what is proposed for the role of a public advocate already takes place, and it is fair to say that there has been much progress.
The noble Lord’s Bill is driven by the concern that following a major incident involving the loss of life in the past, such as the “Derbyshire” sinking in 1980, the Hillsborough disaster in 1989—which has been a significant focus of the debate—and the “Marchioness” tragedy in the same year, bereaved families have undoubtedly felt ignored and swept up in official processes. They have felt that once the state starts to look into the matter, their needs and wishes are not paramount, or even important, and that the process can be confusing and lacks the transparency that the noble Lord, Lord McNally, stressed as being important. In order to address this, the Bill would create the role of a public advocate to represent bereaved families and injured survivors to ensure they understand all the processes and are supported through them, and to review and make sure they have access to the documents used in the investigation.
I know that this is a matter in which the noble Lord has, as he modestly told us, a long-standing interest, as well as considerable expertise and experience. He has been closely involved with the families who were bereaved in the Hillsborough tragedy and who are now involved in the final stages of the inquest into the death of their loved ones. Indeed, it is right to say that Sir John Goldring is currently in the course of summing up to the jury in that inquest. We do not expect a decision for a few weeks yet, and quite what form that decision will take we do not know; it may be a narrative verdict or it may be something more narrow.
I had a meeting with the noble Lord, Lord Watts, who is unable to be here today, and he asked me to say that, given his personal experience, he very much supports what lies behind the Bill, without necessarily committing himself to the actual words.
The Government acknowledge that there were significant issues in the way in which the Hillsborough families were treated in the various processes which followed and we agree that it is vital that lessons are learned and that their experiences should not be that of others in the future. It is because we agree that the needs of the family are so important that we have already taken a number of steps forward.
Reference was made to the Coroners and Justice Act 2009 and the suite of rules and regulations underpinning it. They reformed the way in which coroners’ investigations and inquests are now conducted following a major disaster. These reforms have been in place since July 2013 and have the central aim of putting bereaved people at the heart of the process. The aim is that they receive the support they need and that the process is transparent and understandable from the time of a death being reported to the coroner until the end of the inquest hearing.
Under the reforms we have taken forward, bereaved people have the right to request most documents involved in a coroner investigation and inquest and they can expect the coroner’s office to update them at regular intervals. They can also expect the coroner’s office to explain each stage of the process so that they understand what is happening and why. They can expect compassion and respect for their needs to be central to the investigation and inquest.
They will also have the resource of the Guide to Coroner Services, which my department published in February 2014. This explains clearly and simply what they can expect from the coroner and his or her staff and what to do if that does not happen. Under the 2009 Act, a key role of the coroner and his or her office in an investigation is to make sure that “interested persons”, including bereaved people, understand the process of investigation and are informed of their rights and responsibilities. They are entitled to receive documents and other relevant information, such as hearing dates, so that they can fully participate in the process. Many coroners now also have a support service which provides emotional and other practical support to those attending inquests on the day.
Under the Inquiries Act 2005, the inquiry chair is under a statutory obligation to have regard to fairness. Core participants, which will clearly include all those with whom we are concerned, are entitled to disclosure. The inquiry chair will act as data controller, devising and implementing mechanisms for obtaining, handling and securely storing documents provided to and generated by the inquiry. There is guidance for those running inquiries, including inquiry chairs, teams and sponsoring departments, which sets this out.
Therefore, much of what is in the Bill setting out what a public advocate would do is already happening in the existing processes. We are today in a very different climate from that at the time of the Hillsborough tragedy and in the intervening years. The needs of bereaved people are rightly much more central. I hope noble Lords agree that the current landscape brought about by these reforms and the hard work and contributions of so many makes it less likely that what happened to the Hillsborough families will occur again.
We are not, of course, complacent about this but I believe that, at the moment, there is no need for the public advocate role that the Bill envisages. However, the Government agree that the needs of bereaved families, in particular, must be paramount and that the principles that lie behind the Bill are right. Bereaved families should feel that their voice is heard and confident that processes are fair and transparent. They should feel that they fully understand what is happening and able to participate effectively.
We are, therefore, willing to consider whether the existing processes can be improved and whether any of the principles in the Bill can be incorporated into the existing system. We could, for example, place more firmly in the guidance which is already available to inquiry chairs and teams how important the needs of the families are. We can look at whether the positive things coming from the Hillsborough inquest, not yet concluded, such as the family forums set up to keep the families informed of the investigative processes and to give them a safe space in which to discuss issues, can be replicated in other major inquests and inquiries.
As to specific next steps, I commit to meeting the noble Lord, Lord Wills—not immediately but as things progress—so that our feet can be held to the fire to see whether steps can be taken to reflect what lies behind this and further to improve the significant steps forward we have made.
On behalf of the Government I thank the noble Lord, Lord Wills, for raising the profile of this important issue and for his valuable input, which is welcomed. I hope he will accept my assurance that the Government will continue to ensure that bereaved families and injured persons are central to the inquest and inquiry processes and that their voices will not be ignored.
Lord Woolf (CB)
My Lords, does the Minister feel that the role of the advocate to the inquiry could be closely used to adopt many of the points required by those who support this Bill?
Legal Aid
Lord Woolf Excerpts(8 years, 5 months ago)
Lords ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Lord Woolf (CB)
My Lords, it is a pleasure to follow the noble Lord, Lord Clinton-Davis. I think we probably went into the legal profession at approximately the same time and have seen the huge transformation that has taken place in it since then. It has grown dramatically. I sometimes think that I entered the legal profession at a very good time as after the war years it was suffering from the fact that people could not afford to employ lawyers and more people were leaving the Bar than were going into it. They were leaving because they just could not make a living, especially if they had recently come out of the forces. Since then, largely thanks to the Legal Aid and Advice Act, the position has been transformed but, as must be clear to everybody in the House, in recent times it has been transformed again. It has changed from a profession that served the public well to one that is unable and not equipped to do so because of a lack of resources.
Having listened to the excellent speeches here, it is clear that this is a critical time for the administration and doing of justice in this country. It is vital that we avoid doing more damage to what was a good system but is at the moment in peril. It is in peril for the reasons that have already been heard in this debate—there is no need to stress them again.
In March 2014, our current Lord Chief Justice launched JUSTICE’s new strategy for the courts. He said:
“Some would say that with such dramatic reduction, our system will break. But that cannot be permitted. If it breaks we lose more than courts, tribunals, lawyers and judges. We lose our ability to function as a liberal democracy capable of prospering on the world stage, whilst securing the rule of law and prosperity at home … Our task is therefore to ensure that we uphold the rule of law by maintaining the fair and impartial administration of justice at a cost the State and litigants are prepared or able to meet. We can only do that by radically examining how we recast the justice system so that it is equally if not more efficient, and able to carry out its constitutional function”.
The Lord Chief Justice was taking on the responsibility, as he saw it, for protecting the justice system. That responsibility is not that of the judges’ alone; it is also that of Ministers. Indeed, the Lord Chancellor in his oath of office has to swear to do what is necessary in that regard and that is a matter of which he, rightly, should be extremely conscious and not neglect. At this time it is important that we focus on what can be done to make the justice system work more effectively. At least then if resources are not provided, there will be no excuse that they are not being used well. When you have a system of justice in the state that ours is at present, it will be no easy task to undo the damage that has been done. This damage has not been caused intentionally but is the unforeseen consequence of policies that were thought justified at the time but can perhaps be seen now as to have caused disproportionate damage to our society as well as to the justice system.
We have had two reports recently. One is JUSTICE’s report, Delivering Justice in an Age of Austerity, and the other is the report of the Low commission. Both set out programmes intended to alleviate the situation. I am conscious that the reforms I made to the system 20 years ago were meant to make it more efficient. They clearly have not achieved what I wished to achieve and there are two reasons for that. First, I designed a system to work with legal aid and we have heard what happened to that. Secondly, we were assured that we would get the IT that was critical to the successful implementation of those reforms. In view of what the Lord Chancellor said recently, I hope that that technology will now be provided. If it is not, we will never be able to achieve the aim which the Lord Chief Justice set out in the passage I quoted.
The Minister of State, Ministry of Justice (Lord Faulks) (Con)
My Lords, this has been an excellent debate, with significant contributions from a number of noble Lords, covering not just legal aid but our system of justice as a whole. I am afraid that in the time available to me I will not be able to cover all the issues but I will, I hope, at least respond to a number of the points that have been particularly highlighted.
I begin by joining in the tributes to the noble Lord, Lord Howarth, for introducing this debate so well. This is not the first time that he has decorated the House in debates of this nature. His knowledge is considerable and he approaches the subject with great passion.
I also join the noble Lord, Lord Bach, in expressing my, and the Government’s, commitment to the principles of maintaining and ensuring access to justice. I wish him and his colleagues good fortune and wisdom in their approach to their significant task, and we look forward to hearing the results of their endeavours. Of course, the Ministry of Justice remains receptive to all constructive and innovative ideas which can assist in providing access to justice. The noble Lord indicated the nature of those who might be joining him on that commission. I hope that he will also include members of the public and taxpayers, who may not have quite the same identity of interest as those with legal experience in this issue. I hope also that there will be no shirking from an analysis of the cost of any proposals, because it is vital that one does not consider these matters in the abstract. If, for example, the suggestion is that the Government—whatever Government—should spend £1 billion more on access to justice, that should be identified.
The noble Lord, Lord Marks, made a number of suggestions about improving access which did not restrict themselves entirely to simply increasing the cost of legal aid. Of course, they are all valuable, and indeed some of them were foreshadowed in the Liberal Democrat manifesto.
The LASPO changes were fundamental. They reduced the cost of legal aid from more than £2 billion to £1.6 billion a year—a significant reduction. Inevitably, some results will have been certainly less than optimal. However, the Government consider that legal aid remains a vital element in our justice system and, although these comparisons are difficult because of the different nature of justice systems, we believe that we have a generous system at £1.6 billion a year.
The challenges that the coalition Government faced when they came into power were considerable and, in their view, it was necessary to reduce the amount of spending. The country’s finances have, to a significant extent, been put back on course, although there is still a great deal to be done in that connection. We remain of the view that, if possible, cases should be diverted away from court and court proceedings, and sometimes away from lawyers, where suitable alternatives are available, and that court, although an important and indeed vital part of a civilised society, should be the last resort rather than the first. We do not shirk from the fact that we think that those who benefit from the civil legal aid scheme should have a strong connection to the United Kingdom. That is why we remain committed to the residence test and are now planning the next steps following the success of the Government in the challenge in the Court of Appeal. We welcome a great deal of the work done by the noble Lord, Lord Low, in his reports. They are of great assistance to policymakers, as I hope I have acknowledged in the past; I continue to do so. We recognise the importance of advice being available in all sorts of contexts.
Criminal legal aid has undoubtedly suffered in terms of remuneration for lawyers. The Government are well aware of the concerns expressed by the noble and learned Lord, Lord Judge, about the possible damage to careers and the prospect, in due course, of a reduction in the quality of criminal judges. I acknowledge that. In fact, there is no reduction in the availability of legal aid to defendants, but I think the issue was that the career structure is so unattractive that this will diminish in the long term the quality of those involved in what is, I agree with the noble and learned Lord, Lord Brown, probably the most important part of the legal system. However, the Bar cannot be entirely immune from the need to reduce legal aid expenditure, but the Government remain committed to maintaining a vibrant and independent Bar and decided in June 2015 not to proceed with the planned reduction in advocacy fees, as we made clear in a Written Ministerial Statement.
Changes in the criminal process, which were heralded by the report from Lord Justice Leveson and the observations by Sir Bill Jeffrey, will, I hope, result in greater efficiency and a reduction in the costs of court processes generally, without diminishing in any way—enhancing, indeed—what we recognise as criminal justice. As for civil legal aid, the result of LASPO has undoubtedly been an increase in the number of litigants in person, but litigants in person have always been a feature, to some extent, of the legal system. The question of employment tribunal fees was specifically raised by the noble Lord, Lord Low. A review of employment tribunal fees was announced in June last year and will be published in due course. It will consider how effective the introduction of the fees has been in meeting what was the original objective, which was to deter inappropriate and frivolous claims. It is important that those who have genuine disputes should be able to bring them to court.
The noble Baroness, Lady Dean, and the noble Earl, Lord Sandwich, mentioned the question of exceptional funding. Over time, the Legal Aid Agency has, in fact, granted ever more applications for exceptional funding. In fact, these have increased every quarter. I accept that the forms were originally probably less than clear: they have been changed. In the most recent quarter for which we have data there was a grant rate of 35%, a considerable increase on the figure mentioned by the noble Baroness and the highest number since the scheme began. Mr Justice Collins decided that the existing scheme as it was administered was unlawful; that is subject to appeal. However, in the mean time the Government brought forward a statutory instrument to amend the provisions, which makes it much easier to obtain exceptional funding.
The main burden of the debate could be said to be that it is time the Government looked again at the fall-out from LASPO. We committed to look at those results within three to five years. Noble Lords may be aware of what the Permanent Secretary at the Ministry of Justice said to the Justice Committee on Tuesday 13 October, which was that we were enjoined to do a post-implementation review of LASPO and that we would do it at the front end of the period rather than the latter end. Discussions are going on as to whether to run the various reviews together.
He also wrote to tell the committee about three projects being undertaken in respect of civil legal aid. One, Varying Paths to Justice, was a large-scale qualitative research project examining how people seek to resolve civil, administrative and family justice problems. The second, a survey of not-for-profit legal advice providers in England and Wales, will provide an indication of how advice providers in the sector have been affected by legal aid—a number of noble Lords mentioned the importance of the not-for-profit sector; I entirely accept that. The third is the initial findings from the legal problems resolution survey on the prevalence of civil justice problems in England and Wales, which will be published early in 2016.
I hope that we will be able to provide a response—assisted, no doubt, by the commission of the noble Lord, Lord Bach, although the timings may not precisely coincide—to some of the matters that have arisen from LASPO. The purpose of LASPO was, of course, to reduce the cost of legal aid and to try to focus legal aid where it was most needed, in the most important cases. The noble Lord, Lord Bach, has been a consistent critic of the effect of the lack of legal aid in social welfare cases and I understand this concern, but I think he and the House would agree that not all problems that come from social welfare difficulties— particularly debt, for example—are best approached by lawyers. That is not to undervalue the lawyers’ contribution, but lawyers, at whatever hourly rate they charge, may not be the best people to sort out, for example, the many debt problems that beset those people who have social welfare problems.
A number of noble Lords mentioned the question of the process for solicitors’ legal aid contracts. There was criticism from the noble Lords, Lord Marks and Lord Cotter, of the whole process by which such contracts are obtained. This process is the subject both of litigation in respect of the procurement process itself and also judicial review in respect of those contracts. It would not be appropriate for me to go into much detail about that, save to say that the Ministry of Justice, as I have said previously from this Dispatch Box, is satisfied that the process was fair and will maintain that in court. The noble Lord, Lord Cotter, returned to an issue he has raised in this House before about a geographical problem with solicitors being outside of a necessary area. I can tell him and the House that bidders would be required to have, or commit to have, an office in the relevant area where the work was delivered. That would be a matter taken into account.
The Law Society acknowledged that there was a need for some consolidation. Fortunately, the crime rate has dropped and the process was undertaken in a way that we think was appropriate to make sure that taxpayers’ money was well spent but that, nevertheless, there could be access to the duty solicitor scheme. Of course, solicitors will still be able to have the own-client system and they will be able to provide, as agency providers, services that they have hitherto provided.
Litigants in person are undoubtedly a feature of the current system, but a number of initiatives have been undertaken; and not simply pro bono, although I entirely endorse the importance of the pro bono sector and the valuable work done by solicitors and barristers in this connection. There is support taking place across England and Wales; for example, the LawWorks clinics network, which provides a local face-to-face and telephone advice service for litigants in person, predominantly in the area of social welfare law. The network has continued to grow and has 220 legal advice clinics in England and Wales, supported by volunteer solicitors, barristers, trainees and law students. That is just one example of the strategy in action across England and Wales to support litigants in person. There is also a national campaign launched this autumn to raise awareness of the help available to litigants. Postcards and posters will be distributed widely.
The strategy is not of course the only answer. There are numerous schemes going on nationally and also at a local level. I heard about some of these developments at the Civil Justice Council’s fourth National Forum on Access to Justice for Litigants in Person, which I attended last Friday. It was well attended by representatives from across the justice system and I was struck by the level of expertise, experience and enthusiasm shown by delegates to maintain the momentum that has been building for litigants in person.
Much has been done in this process. A simple rule change—rule 3.1A—is helping in this regard. The noble and learned Lord, Lord Woolf, was unfair to himself in suggesting that the CPR had not been a total success. In many ways it improved a great deal the system which prevailed under the rules of the Supreme Court—the predecessor of the civil procedure rule. With respect, he is right that it has not prevented disputes being very expensive. Certainly, the reforms that we intend to bring forward in our civil justice system, using the increasing availability of technology and reducing the number of court hearings, will build on those reforms. Rule 3.1A, on “case management—unrepresented parties” will encourage judges when dealing with litigants in person to use language and a way of dealing with them which is wholly different from the way it was used before. Simple illustrations were given at the meeting to which I went that the terminology is mysterious. What is an appellant? What is a respondent? Ordinary language will help. In the new climate that we live in it was encouraging to see so many judges attending this civil justice forum who deal with litigants—
Lord Woolf
I am very grateful for the comments made by the noble Lord. What about Latin?
Lord Faulks
We are very much discouraged from using Latin in any context now, although I do not know whether the noble and learned Lord would agree that it is remarkable that when you are told not to use Latin, it becomes almost irresistible to use it and somehow will only serve as the correct way. It is very much a thing of the past, I think.
Prosecution of Offences Act 1985 (Criminal Courts Charge) Regulations 2015
Lord Woolf Excerpts(8 years, 7 months ago)
Lords ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Lord Ponsonby of Shulbrede (Lab)
My Lords, my contribution concerns both practicalities and the principle of the courts charge. I remind the House that I sit as a lay magistrate in central London. I agree with everything that has been said by the previous speakers. I shall avoid going over examples already given but shall walk through two simple sentencing exercises that illustrate the points with which we are dealing.
If an offender pleads guilty to a summary offence in a magistrates’ court, a band A fine is given. If he is on average income, that fine will be £150. That is at the discretion of magistrates. In addition, there are CPS costs of £85, the imposition of which is, again, discretionary. After that, there is the government surcharge or the victim surcharge of £20, which is mandatory. Then there is the new courts charge of £150, which is mandatory. The total is £405. In this example, 37% is the fine and 37% is the courts charge.
In the same circumstances, if the offender is on benefits the balance changes. The fine is £40, the CPS cost is £85, the government surcharge is £20 and the courts charge is again £150. The total is £295. In this example the fine for an offender on benefits is 14% of the total figure but the courts charge is half. This is a common type of fine given in the magistrates’ courts. The courts charge is clearly unjust on this consideration alone.
We have heard how unhappy magistrates are and we have heard about the resignations and retirements—and I personally know a couple of magistrates who have retired. However, it is not unusual for magistrates, and I am sure judges as well, to combine competing principles when they make decisions on sentences. We have the principle of totality when we are making a sentence—that is, what is the bottom line? Of course, we have to come up with a total sentence that is fair in all circumstances. But the competing principle is the advice that we get from our justices’ clerks, who are in turn advised by the Justices’ Clerks’ Society, whose advice to us is that we should sentence and then, after the sentence, add in an administrative charge, which is the courts charge. Clearly those two pieces of advice are in contradiction but, in the privacy of the retiring room, magistrates may look at the matters over which they have discretion. I was disturbed to hear about the case in the Independent this morning, where magistrates said that they actually reduced compensation. I believe that that is absolutely wrong, but it is within the power of the magistrates to reduce compensation to reflect the totality of the sentence that they are giving. When the Minister comes to wind up, I am sure that he will remind the House that it is open to magistrates to give an absolute discharge or “one day deemed served”. I and all magistrates in exceptional circumstances use those types of sentences, but it is absolutely wrong to use them as a way in which to circumnavigate the courts charge.
Noble Lords have spoken about the possibility of people changing their plea to guilty to avoid the courts charge. I understand that it is early to get a statistical basis for that, even though a number of anecdotes say that that is what defendants are doing. But it is worth reminding the House of the totality of the situation. We have already heard that the sentence itself can be reduced by up to 30% if somebody pleads guilty at the first opportunity. In addition, the costs asked for by the CPS will be much lower if somebody pleads guilty at the first opportunity, rather than going through trial. Admittedly, this is a discretionary amount, but the amount asked for will be much lower on behalf of the CPS. On top of that, you have the mandatory courts charge, which we have heard so much about, of up to £1,000 for a conviction on an either-way matter in a magistrates’ court. Putting those elements together could encourage people to plead guilty when they believe that they are not guilty.
On the principle of the courts charge it is worth reflecting that, when we debated this matter on the then Criminal Justice and Courts Bill last year, we did not know the level of the courts charge, and the briefings that we received—from the Magistrates’ Association, for example—set the courts charge at the same level as that of the victim surcharge, because they did not know any better at the time. So the debate at that time was on the principle of the courts charge, not the proportionality, because the figure is so much higher than we expected when considering the matter last year.
The Government have always justified this matter by saying that criminals should pay their way, and the previous speakers have accepted that principle, but I am not sure that I do accept it. The court system, right up until last year, was an independent administrator of the law, in which judges, magistrates and jurors had no interest in the outcome of a case, their only duty being to administer the law and come to a just outcome. Surely it is wrong that the court system has a financial interest in the outcome of a trial. I am not for a moment saying that any judge or magistrate would be swayed by that consideration, but from the defendant’s point of view and the public perception there is an institutional, built-in benefit to the court system on the result of a trial. On that alone, I oppose the principle of the courts charge.
There is a bit more to it than that—and I refer to some research sent to me about how people perceive how they are treated in court. It is not merely a question of the legal and constitutional rights that they receive but about what they believe to be the fairness of the whole system. There is growing evidence in America and the UK that if people are convicted and believe that they have been fairly treated, they are more likely to comply with the sentence and the sentence itself is likely to have a better outcome. This is a profound observation, which puts an onus on the court system to treat all parties fairly and an onus on treating convicted offenders in such a way that they think they have had a fair crack of the whip, so that they are more likely to comply with the sentence when it is given.
I urge the Government to bring forward a reconsideration of this matter. It is something which, in my 10 years as a magistrate sitting on the Bench, I have found people feel most strongly about.
Lord Woolf (CB)
My Lords, what we are discussing concerns what happens in magistrates’ courts up and down the country and, from time to time, in the Crown Court, where for reasons that can be good or bad, cases go to be heard. I fear that these regulations indicate that the Government have paid less attention to what they are doing because it concerns magistrates and the cases that come before them, and other cases that are not the most serious. I see no other reason why the Government could come to the conclusion that it is right and proper to do what these regulations seek to do. I suggest that this House should regard justice in the magistrates’ courts as every bit as important as every other court in the land. It is a total disgrace that we should put on to the statute book provisions that have the consequence that magistrates are so appalled about what they are required to do that they feel it necessary to resign. I regard that as shocking, and the only explanation that I can suggest is the one I have given: that insufficient consideration was given to what has been done.
Now that the matter has been brought to the attention of a new Minister of Justice and Lord Chancellor, he should look at it very carefully, as quickly as possible and, as he has been shown to have the courage to do, take his own decision and come to the right conclusion. I wish to put it on the record that I have been very pleased by the general approach of our new Minister of Justice and Lord Chancellor. It seems to me that he considers the facts; he may not always come to the decision I would want him to come to, but he comes to a fresh decision, as required by the circumstances as he sees them. I make no objection to the fact that he may take a different view from that which judges and retired judges would have come to. What is wrong here, though—this is the explanation—is that there was no proper consultation. I believe that if there had been proper consultation that had been objectively considered, these regulations would not have seen the light of day.
Office of Lord Chancellor (Constitution Committee Report)
Lord Woolf Excerpts(8 years, 10 months ago)
Lords ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Lord Woolf (CB)
My Lords, it is very difficult to follow three such distinguished speeches on this subject. I listened to what the noble Lord, Lord Lang, had to say, followed by my fellow Geordie, the noble Lord, Lord Beecham, who showed huge generosity to a rather more junior Geordie in the matters we are talking about in the political area. Finally, we heard from the noble Lord, Lord Lester, who sometimes describes himself as my kinsman. I am very glad that he feels that relationship with me. I am not sure that it is fully justified, but there we go.
I should declare an interest not only in my capacity as a former judge but because for five years before I became a judge I was the holder of the strange office, which I am glad to say still exists, known as the Treasury Devil. The Treasury Devil has the unique responsibility, under the guidance and on the direction of the Attorney-General, of appearing across the board for government departments in the courts and giving advice to the Government on difficult issues—such advice being traditionally regarded as of considerable importance.
I mention that interest because it gave me a unique opportunity to observe how the lawyers in government work to uphold the rule of law. My experience was that they were quite exceptional in their skills and in their knowledge of many of the issues on which I had to depend on them. They had the advantage, particularly if they were in what was the Lord Chancellor’s Department, of normally holding their position for much longer than the majority of civil servants do today. One of the matters I mentioned in my evidence to the committee was my concern, to which reference has already been made, that we have lost something because of the frequency with which officials are moved around within the system so that they do not acquire the benefits of considerable experience in their work. Such experience meant that, perhaps uniquely in the European Community, where I was also required to appear from time to time, our civil servants would take this attitude, “If in doubt, don’t”. Elsewhere, the approach appeared to be, “If in doubt, do, and see if somebody stops you”. This was very significant in relation to questions of the rule of law and in my view reflects the culture that had grown up within government, which was of great benefit to our constitution.
As we heard in the previous speeches, there are differences of emphasis, some of them significant, between the response of the Government and what the committee recommended. I will say two things with regard to that. First, I agree entirely with what was recommended by the committee and with what has been said in prior speeches today. I mention that because in this area it is important to see that we are concerned with a topic that not only is difficult but about which there is really no certainty as to its limits. It is a topic where an understanding of the subject is critical. There is concern about that because, historically, and I would say even today, the Lord Chancellor plays a critical role in maintaining the rule of law—or perhaps I should say, bearing in mind certain criticisms that the House has heard, should play a critical role with regard to the rule of law.
It is an area where appearances are important. We have to remember that it is not only in this country that those appearances are considered but in many other countries—most importantly of all, within the Commonwealth, where this country still has a leadership role. What the committee said, which will strengthen the situation, is something to which the greatest attention should be paid.
In particular, I go to a matter that has already been referred to: the splitting up of responsibilities in respect of the constitution. The differences brought about by the constitutional changes of 2005 contained in the Constitutional Reform Act mean that already the ability of the Lord Chancellor to perform what has historically been his role is made at least more difficult. If that be the situation, why is it important to give two members of the Cabinet the responsibility of dealing with an area? Are we not going to obtain a better, comprehensive approach to the important constitutional issues at stake if it rests clearly in the hands of one member of the Government? I ask the Government to think again about that particular difficulty.
Clearly, the concern has been appreciated about the position of the senior civil servants in what was the Lord Chancellor’s Department and in the Ministry of Justice. I certainly welcome the fact that we now have a Permanent Secretary in that department who has a legal background. If the Lord Chancellor has no practical experience of the working of the courts and the justice system, it is a hugely difficult task for him to adjust to the responsibilities of his office. He really will be dependent, at least initially, on what he is told by his advisers. In that situation, it is most important that the advisers should be aware of the culture that exists.
I know that it can be said that there is a terrible danger of conservatism with a small “c” if you get lawyers to appear in that role. My contention is that if one looks at what happened in the past, Lord Chancellors who were lawyers and who were advised by Permanent Secretaries who were lawyers were not slow in introducing reforms that they were satisfied were necessary. That is one of the most important recommendations of the committee that should be looked at again. There are other matters that I could speak about, but in comparison to the one on which I have focused, they are of lesser importance, so I shall say no more.
Queen’s Speech
Lord Woolf Excerpts(8 years, 11 months ago)
Lords ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Lord Woolf (CB)
My Lords, I have heard some excellent speeches today, particularly from the three new Members of this House who made their maiden speeches. I am also conscious that this is the first time that I have to consider the situation that arises from having a second Lord Chancellor who is not in this House and not a lawyer. From that point of view I welcome the fact that the new Lord Chancellor decided to invite further consultation on a matter of great importance to not only this country but all other truly democratic countries around the world—that is, the suggestion that we should take drastic action about the result of the remarkably successful achievement of the introduction into our domestic law of the European Convention on Human Rights.
That was achieved by the 1998 Act, with considerable success in practice. It was a huge step for this jurisdiction to take, because although we played a part in drafting the convention, it was also very much influenced by jurisdictions whose legal traditions were very different from our own. We always focus on the contribution we made to its drafting, but I am bound to say that if this discussion were taking place in France, they would be claiming equal credit and responsibility. That document was hugely influenced by not only a common law jurisdiction, but a jurisdiction different from ours—a civil tradition that was adopted around the globe, in the same way as ours had been. The provision was implemented by a short Act of Parliament, at a fairly late stage in its career compared with the situation on the continent, where many jurisdictions had been dealing with the convention directly, and we had to face up to the same problems as they had faced and dealt with very well.
One of the reasons why judges welcomed the Act when it came into force was the situation that existed in our legal system before that Act. In fact, we had two systems. Our citizens could be involved in litigation going before the European Court of Human Rights without those cases going through our courts at all, so their progress and outcome were not influenced by the contribution this jurisdiction’s judiciary could make. We did a very good job of absorbing that convention and getting the benefit it could provide: there was now one system whereby, before someone went to the European Court, they had to satisfy it that they had exhausted the domestic remedies through which our judges and lawyers could make a contribution.
The jurisprudence that came out of this country and out of the European Court show that both were benefiting from the process. Not all the decisions were ideal, and I, as a judge in this jurisdiction, could easily identify for the House certain ones in Europe that I thought were wrong. Equally, I was aware that, in its approach to the convention, this jurisdiction benefited considerably from the fact that, in dealing with human rights—fundamental rights of a global, rather than domestic, nature—different techniques were required. Here, I pray in aid what the noble and learned Lord, Lord Hope of Craighead, said in his admirable speech. He pointed out that since 1998, a great deal of water has flowed under the bridge and the process of consolidating the European convention and our own common law has gone hand in hand. One surprising thing about the European Court of Human Rights is that, in many ways, it is a common law court that approaches cases according to the facts, rather than the principle. It comes to a conclusion based on the facts and does not mind moving forward stage by stage, evolving the law in the way this jurisdiction does, which is one of the great strengths of the common law.
The fact that I am speaking so favourably about the European Court and the European convention does not mean that I am against the idea of a British Bill of Rights in principle. Like the noble and learned Lord, Lord Mackay of Clashfern, I can see nothing wrong in principle in having such a Bill. But if a British Bill of Rights is not currently necessary, and if I am right in saying that having two systems did not work, let us not go back on what we achieved through the 1998 Act unless there is very good reason to do so. I have been following as closely as I can the arguments in favour of a British Bill of Rights, which involve pointing out the shortcomings that are said to exist with the European Court’s judgments. I can only say that in my view, the case has not been made to justify taking the risks involved in starting again, when we have made so much progress since 1998.
That is why I very much welcome the wise decision that was taken to have further consultation. I listened to what the noble and learned Lord, Lord Falconer of Thoroton, said about what happened last Thursday in the other place, and I have read the relevant Hansard. I see no reason why this House should not think that, when it is said that consultation will take place, that means meaningful consultation, and that is what I urge. It could take many forms, but let us have meaningful consultation. If we do not, we will let down not only the citizens of this country but the citizens of the many countries that depend on our influence and that look to us when considering how to deal with the big issues we face today, many of which have at their heart the observance of the rule of law and the convention on human rights.
Inquiries Act 2005 (Select Committee Report)
Lord Woolf Excerpts(9 years, 1 month ago)
Lords ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Lord Woolf (CB)
My Lords, I begin by disclosing the matters in the register, particularly those with regard to my having conducted inquiries. I also echo as warmly as I can the comments made about my noble friend Lord Tenby. Both when I was Lord Chief Justice and made only very occasional visits to this House, and since I have retired and so have been able to spend more time here, I have found him a great source of wise advice. I always found him willing and generous with his time to give that advice. I know how many of the Members of the House, like me, will miss him as a result of his retirement. I would like publicly to give him my very best wishes.
I also join in the things said about our chairman in respect of this inquiry, which was a rewarding experience to be part of. As the register shows, I was previously involved in another inquiry into inquiries. This recent inquiry was a model of its sort. The first inquiry in which I was involved is coming up to its 25th birthday on 1 April. That was the Strangeways inquiry, which is perhaps worth mentioning only to the extent that it involved prisoners and prison staff from six prisons across the country—indicating the sort of problems that can arise in an inquiry—and the fact that inquiries are of very great importance to satisfy public concerns. They may not always get it right but they are certainly a way in which the public can be involved in the process of achieving justice, which enables many people to feel that justice has been done.
If we are to continue to perform that process, it is very important indeed that the process continually evolves. It is very easy for an inquiry to go wrong on the process—the way in which the matter is handled. That is why I particularly recommend that we pay the closest attention to the idea of having a specialist unit within the Courts and Tribunals Service that will be a repository of the critical information that one inquiry can provide for later inquiries. I can say only that I would have valued that in the Strangeways inquiry. Irrespective of what has happened since, I do not believe that any proper machinery has yet been devised to perform that purpose which has been put into practice by any Government.
The important thing about the proposal in the report in that regard is that it would enable the running of inquiries to appear to be separate from government. Many inquiries involve government, and the difficulty with the Cabinet Office being the repository is, first, that the functioning of the Inquiries Act is a matter of very small importance to the Cabinet Office, although I suggest that it should be high in a table of significance, and, secondly, it means that the inquiry has a link in its management to something absolutely at the heart of government: the Cabinet Office. That differs, of course, from the decision whether there should be an inquiry, which is a matter I fully accept that the Government must be involved in, but the running and management of inquiries is a different matter.
The quality of the Courts and Tribunals Service is that it is used to being attached to an independent body, which is a separate part of government: namely, the Courts Service. The Courts Service is a peculiar service within the Civil Service. We should build on the advantage that we have in having it as a possible repository. Because of that, the noble Lord, Lord Shutt, appropriately inquired whether the courts would be happy to take on that responsibility. Subject, of course, to their being properly financed to do so, they recognised that that is something that they should do. With respect, I say that that is a matter that the Government, or a Government, should look at again, because it would help to give credibility to the inquiry.
I do not want to take up too long a time, but I would like to touch on one or two other recommendations. From my experience, I regard counsel to an inquiry as critical. The great thing about counsel to the inquiry is that he can help to shorten the process. I know of at least one inquiry taking place at this time where the absence of counsel to the inquiry may be very significant in the delays that have occurred.
I should also like to say a word about Salmon letters. One of the witnesses from whom we heard with regard to Salmon letters made it clear that they have a place to play in inquiries, but we do not want rigid rules that they have to be served in all circumstances. In many situations, it is an unnecessary additional procedure to impose upon inquiries to have Salmon letters. Where they help to achieve justice, they have to be served, but where there is no special reason for serving them, in the ordinary process of legal proceedings we do not have Salmon letters, and I can see no reason why we should have them in inquiries unless, if they were not sent, there would be an injustice in relation to a particular witness. Otherwise, we are just prolonging the process of the inquiry.
There is also a danger of not taking advantage of the full use that inquiries can provide to future legal proceedings. There is a recommendation in the report that the evidence at an inquiry and its inclusion should in effect be admissible in subsequent legal proceedings. I confess that it is a great advantage to be followed later by the noble and learned Lord, Lord Cullen of Whitekirk, who probably has the most unique experience of conducting inquiries. He gave evidence before us on that matter and I suggest that he can speak to that matter as well.
Finally, the way we use inquiries in this jurisdiction is exceptional. Other common-law jurisdictions are nervous about the deployment of the judiciary, because that seems to be outside their normal process. We should recognise that our approach, which has worked so well in the past, is going through a particularly difficult period at the moment, but that the value of inquiries is immense and that we should continue to build on what we have learnt already.
Criminal Justice and Courts Bill
Lord Woolf Excerpts(9 years, 3 months ago)
Lords ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Lord Elton (Con)
Having erupted with virtually no notice into the final stage of the Bill in this House, I repeat the apology that I made to my noble friend after that for your Lordships to hear it. I have not changed my view of the proposals, but I very warmly welcome the wise concession that my noble friend has extracted from the Secretary of State and the department that this will be reviewed again before it becomes law. If it is to come to us again, I would ask your Lordships to study the issue in as much detail as they can and to read the debates which have already taken place on it.
I realise that, in addressing my noble friend, I am technically addressing the Secretary of State and the cohort of civil servants who are advising him. It is they who need to be persuaded that the enlightened and successful way of treating young people in these difficulties is along the lines suggested by the noble Lord, Lord Ramsbotham, and not according to the rather ancient, I am afraid, guidelines against which I remember struggling when I was a Minister the department back in the 1980s. I am most grateful for this concession, which I think gives the House an opportunity to be extremely effective in the next Parliament if this proposal recurs.
Lord Woolf (CB)
My Lords, I will just indicate, first, that I am very much in agreement with those who have praised the Minister on the concession that he has obtained and, secondly, that I am very much in favour of, and support, the words of caution that have been said on the desirability of reconsidering this proposal.
Lord Horam (Con)
I would like to comment on the remarks of the noble Lord, Lord Pannick. He said that this has been something of a saga. It has indeed been a saga, albeit, as I think he would agree, a highly intelligent and rationally argued one on all sides. The reason it has been a saga is that there is a real issue here: on the one hand we value the role of judicial review, which, as he rightly says, is a protection for the citizen against illegal and wrong actions by the Government, and it is important that that is kept in place, but on the other hand, unfortunately, in recent years an abuse of judicial review has crept in in many areas. We have heard at some length the sort of examples where that has taken place. To give one example, the noble Lord, Lord Adonis, had tremendous difficulties with the introduction of the academy programme when he was Minister for Education in the previous Government, because of the judicial reviews that were brought in against that particular idea, and it took him some years for that all to be sorted out.
At the moment these problems are concerned not so much with education or issues of that kind but with development. Many schemes up and down the country to provide more houses, roads, commercial opportunities, schools and hospitals are held up by judicial reviews that are usually—indeed, very often—almost without merit and are brought forward on tiny issues of procedure. These judicial reviews are used as a weapon of delay, which is something that any Government, Labour, Conservative or coalition, should be concerned about.
There has been an issue of getting the right balance between on the one hand protecting the legitimate and longstanding use of judicial review, and on the other avoiding this abuse of judicial review, particularly using it as a weapon of delay for infrastructure development. This is an important issue, so important that not only are the Government concerned about it but the Opposition are using their day tomorrow to talk about the need for more infrastructure development. It is a common cause for all Governments, frankly, that we get infrastructure development—I am sorry that that is such an ugly phrase, but the House knows what I mean—going with some speed, because we are falling behind. We are 24th in the world league for infrastructure development, whereas we are fifth in the economic league, so we are well behind where we should be in terms of building roads, houses and all the rest of it, and we need to move that on. The truth is that judicial review has sometimes been used in a very unfortunate way to delay that sort of development.
My noble friend has had the difficult task of getting some sort of balance into this debate, and that it why it has taken some time for this House and the other House to reach a conclusion. A conclusion has, I hope, now been reached, and that reflects good will on all sides of the House. I hope that what has been achieved will be of value and do some good. When we pass legislation in the House, we unfortunately never know exactly what effect it will have, but I hope this will have some effect and I therefore pray that the effort that has gone into it on all sides of the House and at the other end of the corridor will be of good value.
Lord Woolf
I also share the hope expressed by the noble Lord, Lord Horam, that what has been achieved will be worth while. However, I am bound to say that my view originally was that these proposals to restrict the court’s powers in relation to judicial review were unnecessary and misplaced. On the points made by the noble Lord, Lord Horam, I should point out that these amendments would not have assisted in any way whatever. What has assisted is the fact that the courts, aware that there are problems in some areas of judicial review, and of their own motion, put in place a specialist way of dealing with the questions of development to which the noble Lord referred. That is quite independent of these amendments. None the less, the changes that have been achieved to the original proposals enable me, like the noble Lord, Lord Pannick, to accept that this can be accepted, although with reluctance.
Lord Beecham
My Lords, it is a pleasure to follow the noble Lord, Lord Pannick, in his customary forensic and formidable critique of the decisions made, and the manner in which they are made, by the Lord Chancellor. As we have heard, the House has secured an amendment to the “highly likely” test. The courts will be able to allow a case to be brought or to grant relief where they deem there is an exceptional public interest, notwithstanding that it would be highly likely that the defect in procedure would not have affected the outcome.
It is, however, somewhat unclear what is meant by “exceptional public interest”. The Richard III case attracted more public interest than any judicial review case that I can recall, and certainly more interest from the Lord Chancellor, who constantly relies on that one case to justify his assault on judicial review. Would such exceptional interest have allowed the court to deal with that case if it had been demonstrated that it would have failed the “highly likely” test? If not, will the Minister give us some examples, given that the courts are now directed that they must strike down a claim unless such exceptional public interest exists? Further, if judicial discretion remains, it would surely have been better not to substitute “must” for “may” in the injunction to apply the test contained in the amendment.
The final government amendment deals with financial information to be supplied by those contributing to the funding of judicial review applications; and again under pressure from this House, and again, no doubt, with the advice of the Minister, the Government have moved, in this case to promising a consultation on the limits beyond which disclosure would be required. That is, of course, welcome, although it is not clear whether Parliament will have an opportunity to debate the outcome of such a consultation before the rule committee makes its decisions. Perhaps the Minister will give me an indication about that.
I have always acknowledged the need to get behind the facade which can be erected via a shell company or other device, such as was used in the Richard III case, partisan supporter of that much maligned monarch though I am, but it is a pity that the Government have not sought to consult on how to do that, rather than come forward with what originally certainly looked like a device which could have a chilling effect on genuine supporters of a claim for review. Nevertheless the change embodied in the amendment, as far as it goes, is welcome.
It has been striking, as this Bill has gone through both Houses, how little support it has attracted from government Back-Benchers in either Chamber, with the notable exception of the noble Lord, Lord Horam. In the last round of ping-pong in the Commons three Conservative lawyers—Geoffrey Cox QC; the former and widely lamented Attorney-General, Dominic Grieve, and the former Solicitor-General, Sir Edward Garnier—all voiced stringent criticisms. We are, however, where we are, and thanks to deliberations in this House, and, I suspect, to the wise counsels of the Minister, it is a better place than we might have been. I only hope that after the general election we will have, whoever forms the next Government, a Lord Chancellor and Secretary of State for Justice who, if not judicial, will at least be judicious.
Criminal Bar: Funding
Lord Woolf Excerpts(9 years, 3 months ago)
Grand CommitteeRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Lord Woolf (CB)
My Lords, like other members of my former profession who have addressed the Committee today, I speak from long experience. I congratulate the noble and learned Lord, Lord Morris of Aberavon, on obtaining this debate.
This is a very appropriate time for us to discuss these matters. I was very pleased to read in my Times today Frances Gibb’s article about what is being done to provide technology for the courts, and I am very glad to be able to say that I am pleased about what is happening. I emphasise that this is very much needed, and it is about time that it was provided. I say that it is about time because I am very conscious that in the report published in the mid-1990s into access to justice for which I was responsible, I emphasised the importance of that technology being provided. Many of my report’s recommendations were accepted. When I delivered my report we were assured by those responsible in the then Lord Chancellor’s department—which was the equivalent of the Ministry of Justice—that this technology would be forthcoming. Alas, it was not, and some of the problems of the justice system today are because of that delay in provision. None the less, it is important that it should be provided now. I suggest to the Committee that the message to draw from those who have spoken already in this debate is that we are now in a situation in which positive action is needed to improve the position of the criminal Bar in particular, not in the interest of the criminal Bar but in the interest of the public. As has been made clear by those who have already addressed your Lordships, there is a real need for an efficient and effective criminal Bar if this country is to continue to ensure the high standards of justice which are so much a part of this country.
We are all still reeling from the events that took place so recently in Paris. I suggest to the Committee that one cause of disaffection of a country’s young is that they feel that the society in which they live is not just. Fortunately, in this country most people who have been brought up here can rejoice in the fact that they live in a society that can say it provides justice for its citizens, but unless something is done to arrest the present decline of the criminal Bar, I believe that that will not continue.
Although the criminal Bar is the subject of this debate, as the noble Lord, Lord Thomas, made clear, it is not only the criminal Bar; the civil solicitors who provide legal advice and assistance up and down the country are also critically affected. When somebody is faced with a criminal charge he needs to have ready access to someone who can give him, or her, the advice that they need. A situation cannot be allowed to arise in which that is no longer the position. It cannot be allowed to arise because of those who are entitled to and need advice, but also because an efficient system—one that makes the best use of the limited resources available—is made so difficult if those who appear before the court are not of the quality that is required.
The problem, which is why I suggest that this is such a critical time, is that once we have a slide of the sort described it is so much more difficult to restore the position that was once there. Things can be done with the resources available now which will at least arrest the decline. I think that when the Minister comes to reply he should show that the Ministry of Justice is aware of the extent of the problem and that something more than sticking plaster is required. There needs to be a rethink of the approach to the funding of a profession which is of vital importance to this country and to every citizen in it.
Social Action, Responsibility and Heroism Bill
Lord Woolf Excerpts(9 years, 4 months ago)
Lords ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Lord Goldsmith (Lab)
My Lords, I support what has been said by my noble friend Lord Beecham and by the noble Lord, Lord Pannick. As a practising lawyer, the idea of having to bring this into effect and applying it in the context of an actual case fills me with horror. I do not know how one would start to go about it. I do not see the benefit the clause brings and I see grave dangers in its application. I was particularly taken by the comment of my noble friend Lord Beecham that this does not even necessarily apply to cases of personal injury or injury of that sort—it can apply to economic loss and to many other sorts of cases. I do not see how this sort of drafting can conceivably be appropriate for such cases.
Lord Woolf (CB)
Will the Minister, when he comes to reply, assist me? I do not see how this clause will apply if there are two defendants, one of whom has shown a generally responsible approach towards protecting the safety or other interests of others and the other who has not exercised that approach. It seems to me to be very worrying from that point of view. I always understood that it is not your general behaviour that the court has to look at in order to find whether you are negligent but your behaviour on the particular occasion when you are said to have committed a tort. If one is going to look at the person’s general behaviour in deciding actions for tort, these are going to take a lot longer to resolve than they have hitherto.
Lord Brown of Eaton-under-Heywood (CB)
My Lords, I, too, support this amendment. The Bill as a whole is manifestly directed—all the earlier debates have indicated this—to encouraging people to volunteer and take part in generally beneficial activities. As the noble Lord, Lord Beecham, made plain, this clause would apply if you have a claim against your accountant. Perhaps he is a wonderful accountant and has looked after everybody else enormously skilfully over the years, but on this particular occasion when he is looking after your affairs, Homer nods, falls fast asleep and costs you an enormous amount of money, for whatever reason—perhaps he was going through a messy divorce at the time. He is insured. Is it really to be suggested that what he has done for everybody else is relevant and can deprive you of your claim? It is absurd.
Lord Woolf
I am grateful to the Minister for giving way. I still, I am afraid, cannot understand whether, where there are two defendants, one who can rely on this Clause 3, and one who cannot rely on it, he is saying there could be a situation where it would be proper for a judge to say that one defendant walks out of court scot-free, even though he caused the accident, and the other is found guilty.
Lord Faulks
The answer is yes. There are lots of different circumstances in which two defendants may find themselves sued. They may be sued on the basis that one is much more likely to be liable than the other. The other defendant may be sued because his insurance arrangements may be considered more satisfactory. There will be circumstances in which one defendant is much more likely to be culpable than the other—in which case very often there will be, pursuant to the 1970 civil liability Act, a division of responsibility between those two defendants. A judge will have to perform that process.
By the same token, a particular defendant in a factual scenario, where an accident is caused, might have, on a particular day, been wholly reckless about the cause of the accident insofar as that particular defendant is concerned. Another defendant might have been predominantly or generally extremely careful for the welfare of that individual. I am not saying that that is necessarily a likely scenario, but it is certainly one within the realms of the many possibilities of claims that the noble and learned Lord and I have been involved in, where a judge has to pick his way through a number of different defendants and try to find a fair answer on the facts. My answer to him is that that particular process, difficult though it is, performed by skilful judges, will not be made significantly more difficult by these provisions.
As I explained earlier, the approach that we have taken does not rewrite the law in detail, but it represents a change to the law in that it does not currently oblige a court to consider whether a person took a generally responsible approach to safety during the activity in question. We wish to ensure that the courts take a slightly broader view of the defendants’ conduct in these circumstances, by looking at whether his approach to safety, taking into account all that he did or did not do, was generally a responsible one. I suggest that that would very much tally with what a number of members of the public might think was fair. If a defendant was really predominantly doing all that he or she could reasonably be expected to do to look after the safety of an individual, why should there not be some reflection of that fact in the determination of liability? Why should it be ignored altogether? The court would be obliged to weigh it in the balance—that is all—when considering the ultimate question of whether the defendant met the required standard of care.