Legal Systems: Rule of Law
Lord Woolf Excerpts(11 years, 4 months ago)
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Lord Woolf
That this House takes note of the contribution made by the legal systems of this country to the international standing of the United Kingdom and the observance of the rule of law in this country and abroad.
Lord Woolf (CB)
My Lords, I disclose my interests as in the register.
The title of the debate refers to legal systems. I emphasise that at the outset because, having fulfilled the role that I have, I would not want it to be thought that I was not conscious of the importance of the other legal systems within the United Kingdom.
I say at the outset that I am most grateful to my fellow Cross-Benchers who voted to select this topic for debate. I am even more grateful to each noble Lord and to the Minister and shadow Minister who have agreed to take part. They are all extremely well qualified to contribute and collectively they have an extraordinary record of service to the system of justice in this country. Their involvement in the debate is testimony to its importance.
It is uncontroversial that our legal systems have benefited many countries, as well as our own. They have made a unique contribution to improving the global observance of the rule of law. Other countries look to this country for guidance as to what needs to happen if they are to bring their country up to the standards required by the rule of law. With this leadership comes responsibility. However, I now have a concern that there is a real danger that we will not continue to set the example that we have in the past. If we do not, it will be extremely damaging to this county, as well as to other countries which could benefit from our experience.
Today, there is considerable debate about what constitutes British values. The previous debate has a very real relationship with this debate, as the noble Lord, Lord Alton, said. Whatever the right answer is to the question “What are British values?”, I am confident that hitherto those values would generally be regarded as including justice and fairness, which observing the rule of law requires. After all, this country fought the last world war to protect those values.
Since the end of the war, the importance of those values has increased immeasurably. Our legal system, based on observing the rule of law, is a major contributor to this country’s economic health. Internally, it is part of the essential infrastructure required for a healthy economy. Externally, it is now an important constituent of our global exports. The Bar, the Law Society and the Public Law Project prepared briefing papers for this debate. I refer noble Lords to each of those papers, as they provide very useful information on the background to this debate. Even a glance at them makes clear the importance of the contribution made by legal services to this country. We should be very proud of what has been achieved by our lawyers and legal system.
Why, then, my concerns? To understand them, you have to understand how our legal system developed. It is necessary to remember that our legal system, unlike those on the continent, was not the creation of a single code; nor is our legal system, like almost all other developed systems, protected by an entrenched written constitution which sets out explicitly the functions of the different entities of the state. Instead, there was the creation of the common law, which today is subservient to the will of a largely sovereign Parliament. It is also dependent on the Executive for its resources. This brings with it dangers for its independence, as was pointed out by my noble and learned friend Lord Browne-Wilkinson when he was vice-chancellor. He warned that as the Executive paid the piper, they would inevitably be tempted to call the tune. Fortunately, at least in relation to the role of the judiciary, the Executive have usually exercised commendable restraint. Despite its vulnerability, our system, without an entrenched and dependent common law, is not without virtues. It combines a considerable flexibility with a critical core of common-law values. This enabled the common law, during the expansion of our empire, to be absorbed into and to take root in more than a third of the countries around the globe, including the USA.
Common-law values are important in any legal system, whatever its source. This is because they are a basic requirement of any developed justice system, and closely allied to the values to be found in conventions such as those on human rights. They are also essential ingredients of any effective democracy. In the case of common-law countries, values have a long history, usually traced back to Magna Carta by members of the Commonwealth and the USA. I understand that another contributor may make reference to Magna Carta in that context, particularly as next year is its 800th anniversary. Although it has an ancient pedigree, the common law is still very much alive and kicking. A visit to any Commonwealth law conference will confirm that. Perhaps its values are incapable of being rigidly defined, though fortunately, before his untimely death, Lord Bingham of Cornhill was able to bring considerable clarity to the subject and his work is being continued by the Bingham Institute, under its director Sir Jeffrey Jowell. It has also received detailed attention in the World Justice Project, which has just published this year’s Rule of Law Index. This sets out four universal principles of the rule of law. The project also indexes the extent to which the rule of law is observed in 99 different jurisdictions. No country gets a perfect mark but I am rather disappointed that this country only manages to be the 14th most observant of those countries that form the 99.
Undoubtedly, there is still a very high regard globally for our legal system. This results in multiple benefits to this country. Our courts—especially the commercial court—are used by litigants from around the globe. Our lawyers and judges are universally admired and branches of our international law firms are prospering. Their integrity and ability is not open to question. Because of our judiciary’s reputation both before and after they retire, our judges are in great demand to assist other jurisdictions, which they do willingly. I hope that some of my judicial colleagues who are down to speak will inform the debate with their experience. I will not speak to mine, except to say that I cannot resist mentioning in the presence of the noble and learned Lord, Lord Phillips of Worth Matravers, that we were once called upon by President Chirac in Paris to give him advice, which we happily did. I have also sat in overseas courts.
While the position may look comfortable, at present we cannot assume that in the future it will take care of itself. It needs appropriate support and that support has not always been forthcoming as rapidly as it should. Instead, over the past decade, there have been a series of events that collectively suggest a lack of appreciation in government of the importance of ensuring that our legal system remains fit for purpose. This is a new era in which other jurisdictions wish to compete with us for the benefits that our legal system has already earned for us.
I referred to disturbing events. Let me mention what I have in mind. I have already indicated that we have no entrenched constitution. It is essential, therefore, that our constitutional arrangements include checks and balances to protect our rights and freedoms. Here, the historic office of the Lord Chancellor played an important role. His responsibilities included speaking up in Cabinet for the judiciary, of which he was a member, and for the legal system generally. The former Labour Administration attempted to change one aspect, also involving judicial review. It was vigorously opposed by the legal profession and the judiciary, and I am glad to say that it was withdrawn.
The former Labour Administration also attempted to change our constitution by altering overnight the status of the Lord Chancellor. As a result we now have a situation where there is a Minister in the Commons who combines the roles of Lord Chancellor and Minister of Justice. He is not a lawyer and he has different and wider responsibilities than those of his predecessors. Inevitably this affects his relationship with the judiciary, the profession and our legal system. The Constitutional Reform Act 2005 says he should “be qualified by experience” but so far I am not sure of the precise form that that experience took. This is no doubt a handicap for him, and I commend him for establishing excellent personal relations with the senior judiciary. I hope that he will forgive me, however, if I say that it would be natural for there to be suspicions. Unlike the old-style Lord Chancellor, he sees his current role as being only one more step in what will no doubt be a glittering political career. This is not what the profession and the judiciary expect from a holder of this still high office. I am sure that he recognises that at times the impression he could give is of a politician in a great hurry, which will not make it easier for him to obtain agreement that would facilitate the changes he is anxious to make.
Our lack of an entrenched constitution supported by a constitutional court means that we require an effective legal mechanism for ensuring that public bodies do not exceed or otherwise abuse their powers. This need has become much greater as society has become more complex. The judges responded by developing a streamlined procedure of judicial review which gives judges wide discretion to hold the balance between the Executive and the citizen. As the citizen requires judicial review to protect his position, it is essential that he has a right of access to the courts to achieve this. The procedure is one where the involvement of lawyers is particularly important but the availability of legal aid has been drastically cut, and that interferes with the ability of some litigants to appear before the court. What is more, the Lord Chancellor is now proposing in legislation to interfere with areas of judicial discretion which were working perfectly satisfactorily and were so regarded by everyone concerned.
I know that the Minister will pray in aid the need for austerity. But even if savings could be achieved by what is proposed, which is highly doubtful, they would be modest. Part 4 of the Criminal Justice and Courts Bill discloses a failure to attach sufficient significance to the importance of ensuring that justice is done in an area playing a vital role in achieving the balance to which I have been referring.
Judicial review may at times be inconvenient to the Government but it achieves better administration, which benefits the Government. It is their task to accept that it is a critical part of our society. The changes are being made contrary to the wishes of the senior judiciary. They show signs of being ill considered and rushed. While reforms to judicial review are perfectly proper this is not the way they should be made.
I turn to the area of criminal justice, where I fear that the unintended consequences resulting from government action could be grave indeed. The quality of our judges is dependent on the quality of the legal profession from which they are drawn. As a result of the changes being made in funding, it would be difficult today for any responsible person to advise a youngster coming into the profession to take up a criminal practice. It is essential that standards do not fall, because if they do the effect will be serious. Moreover, the position is not confined to newcomers. We also have problems with the heaviest cases, which are well known, so I will just draw attention to what was said by Lord Justice Levinson when giving a wise judgment.
These are some of the concerns, and I look forward to the other contributions to the debate.
Lord Woolf
My Lords, it is a pleasure to be able to say that this debate has exceeded all my expectations. This is because of the quality and spirit in which contributions have been made. It is not for me now to take up the time of the House by going over the various contributions, but I think that your Lordships will forgive me if I echo one or two points that have been made.
First, I particularly thank those who are not lawyers who have taken part in this debate. Their contributions were of huge value and the debate would have been the lesser without them. I also congratulate those noble Lords who managed to take part in two debates this afternoon and made very distinguished contributions to each. I was much moved by the idea of this being a picnic, and I was wondering what we could bring as presents for people to take away from the picnic after it is over. I am very glad that the Minister was able to provide us with something to take away—I will certainly regard it as an important contribution, as I know will many other noble Lords here—in his assurance that the Government have no intention to either repeal or amend the Human Rights Act.
I think that both the spokesman for the Opposition and the Minister also deserve to be congratulated on the way that they have tackled the issues before us in this debate. I agree with the Minister that there is a lot left to argue over, which will no doubt occur within this Chamber in the future. I do not think that there will be reference again to the days when I was a student so long ago in University College London, when I had the huge advantage of having the noble Baroness, Lady Flather, as a fellow student. I am bound to say, and know only too well, that she has weathered over the years so much better than I have.
Criminal Justice and Courts Bill
Lord Woolf Excerpts(11 years, 5 months ago)
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Lord Woolf (CB)
My Lords, when I was a relatively young judge, a long time ago, and I had to travel on judicial business, it was suggested by the then Lord Chancellor’s Department that I should travel under a nom de plume for my safety. It was suggested that Mr Sheep would be an appropriate name. I am afraid that I have reluctantly come to the conclusion that, as regards the rule of law, the Lord Chancellor, Mr Grayling, is showing signs of becoming a wolf, so far as clothing is concerned, rather than a Lord Chancellor. The judiciary, I fear, may be the sheep. I hope that he is not doing this deliberately. I believe that he is sincere in his many protestations that he is seeking to fulfil his oath and his special statutory responsibilities, but he has to be judged by his actions, to some of which I am about to refer, as well as his words.
Of course, if the Minister were able to drop Part 4 from the Bill, I could compete—just—with the noble Lord, Lord Black, but there is no sign of that yet. I should make it clear that there are aspects of the Bill that I welcome. There are others about which I have reservations, but it is Parts 4 and 5 that I am really concerned about. They have to be considered against the role of judicial review in our judicial system. I therefore disclose my joint editorship of De Smith’s Judicial Review and Zamir Woolf on declaratory relief. Both volumes make it clear why what is being proposed is contrary to the rule of law. It has been suggested that what is proposed would undermine confidence in the judges and that it might be inspired for that purpose. Again, I hope that that is not the case. However, that might be understood if I explain judicial review in a little more detail than has happened hitherto. I have had a unique opportunity to be involved in the procedure.
The procedures—not the task of a judge scrutinising the Acts or the Executive—go back to 1978, when I had just become a High Court judge after being the “Treasury Devil”, as my noble and learned friend Lord Brown was subsequently. Chief Justice Widgery gave me, together with others, the task of devising a new procedure of judicial review. A handful of nominated judges, of whom I was one, were given the responsibility of hearing these cases in accord with the new procedure. Judging by the number of cases heard, it was a great success. As Lord Widgery said, if you provide a motorway, the public will use it. The old procedure did have advantages until it was swamped. It provided protection for the Executive as well as the public, but a new procedure was desperately needed. The advantages for the public were that judicial review was a means by which their rights could be vindicated, but there was also protection for the Executive. This was due primarily to the requirement for leave to bring prerogative writs, which was adopted into judicial review, and to its discretionary nature, which gave judges powers to mould the procedure so that it would fit the needs of different cases.
The procedure was expeditious because it did away with the need for oral evidence; a case could be dealt with on the papers. Discovery was usually unnecessary because at every stage the procedure gives judges a wide discretion. That is needed. The judge can tailor the procedure to meet the case. It is a remedy of last resort and it cannot be used if there is another alternative. If an application serves no purpose, it is dismissed at the outset. It has been admired by many jurisdictions, but not widely adopted because a requirement of leave would be regarded by many of them as being unconstitutional. In these respects, judicial review has always been tilted against the citizen in a way that other litigation is not. This was done deliberately because of the recognition of the need to protect the Executive. After all, it is the Government’s job to govern.
I have no doubt that if judicial review had not been such a success, there would have been a much stronger movement in this country for an entrenched constitution. It is the discretion of the judges which means that judicial review is at the very heart of the rule of law in this country. This does not mean that the procedure cannot be amended. Of course it can, and it has been amended regularly over the years, including amendments for which I should take some responsibility, and others for which the noble and learned Lord, Lord Brown, should take responsibility. However, it means that if you are going to interfere with the procedure, you must be sure that you understand the danger of the unintended consequences that could result from your actions.
I draw attention here to what has recently happened to legal aid for judicial review, which we have already heard about. If the Government had understood judicial review, they could not possibly have brought in the changes to judicial review legal aid that they have. It is a procedure that is designed to be used by lawyers; it is not one that is designed to be dealt with by individuals acting in person. I fear that judicial review will be less efficient and more expensive because of the action the Government have taken in regard to the provision of legal aid.
I come to the proposals set out in the Bill. They interfere with the ability of a judge to provide, so far as is practicable, a level playing field. So far as it is practicable, the needs of the Executive and of the public are served. There are conflicts, and it is therefore essential that judges should hold the ring. It is quite impossible to anticipate what the cases that come before the courts will require, but the procedure is both wide and flexible. I find it very difficult to understand what possible reason there is that is capable of being substantiated to justify what is set out in Part 4 of the Bill. I fear that it is due to ignorance. That is not an excuse, but it underlines the importance of the need to understand what you are doing. Changes are being made with regard to cuts in legal aid because it is now appreciated that they will not work. I hope that there will be second thoughts on Part 4.
I turn briefly to the statutory provisions. Clause 64 states that the judge “must” refuse leave. That is wholly inconsistent with the requirements of discretion. The present law uses “may”, and there is a world of difference. Under Clause 64, information on financial resources has to be provided by applicants. That is a totally novel idea. As far as I am aware, in no other area is such an imposition put on an application for judicial review. It is just unacceptable. It is a barrier that is out of accord with the rule of law.
Clauses 66 and 67 deal with costs where a party intervenes. Sometimes, but not in many cases, it is very useful for there to be interveners. Under the provisions here, you will not be able to receive any assistance from interveners.
Clauses 68 and 69 deal with capping the liability of an unsuccessful litigant to pay costs. These provisions have been explained very ably by the noble Lord, Lord Pannick, and others. Again, it is an effort by the judges to obtain a level playing field. It is known that applications for judicial review that should be heard in the public interest will simply not be heard and will not come before the courts, to the disadvantage of the public, if litigants have to pay costs they cannot afford. The courts look into the matter and put a restriction on the level of costs for which a litigant is liable so that they have confidence to move forward. However, to do that after the permission stage is pointless because it will never get to that stage. I am at a loss to understand how that could have been suggested.
One of the reasons that has been put forward as a justification for the provisions to which I have referred is that too many cases are going to judicial review. I have to tell the Minister that the number of cases is due largely to incompetence on the part of the Executive and other public bodies. If they did their job properly, there would be no need for judicial review. One of the great virtues of judicial review is that it sets standards. Public servants have to realise that they cannot take short cuts. There was a time, when I was directly involved in these matters, when the standards of the government legal service were exemplary. I am afraid that those standards have dropped through lack of resources and because, unfortunately, civil servants are moved too frequently. In the old Lord Chancellor’s Department, they would remain for the duration of their career. That may not be appropriate for other departments, but it had considerable virtue in the Lord Chancellor’s Department.
I suggest that there is really only one action that the Government can properly take in this case. They should take Part 4 away and look at it again. It should cease to be part of the Bill. If it remains, it will be a blot on the reputation of this Government in terms of their commitment to the rule of law. They should realise that. They should realise that these provisions have been strongly criticised by the judiciary and in this House. Part 4 really is not something that should grace the statute book.
Lord Faulks
My answer to that is that the hypothetical Mr Justice Beecham on a busy list is told that there might be an intervention of one sort. He may not be able to anticipate the level of the intervention that is then forthcoming in terms of its size and the number of others who intervene. The noble Lord scowls, but I am endeavouring to answer his question so perhaps he should not do so. Then, in due course, a hearing takes place by which time an enormous amount of material can be provided and the scope of the case can expand. This is not an evil, but it ought to be controlled. It is difficult without continuity of the judges involved in this to control it in the way that it should be.
Lord Woolf
Does the Minister accept that it is very important to look at the situation again with regard to these matters of management after the burden of immigration and asylum cases has been removed from High Court judges? They were struggling to keep abreast of those cases and they were deprived of the time that they should now have to look after the proper management of these cases.
Lord Faulks
I absolutely understand what the noble and learned Lord is saying about that. Such was the volume of their work that it may have been difficult to make the decisions that having more time available would have allowed them to make. I take that point. As I have indicated, the Government are listening on the question of interveners. There is merit behind the Government’s provision and we are looking for the best way of reflecting that in any amendment that finally finds its way on to the statute book.
Lord Woolf
I make one further point, if the Minister will be patient—I apologise for interrupting him again. Are these matters not best dealt with by discussions through the usual channels between the Ministry of Justice and the judiciary, rather than by going to litigation, which removes the judge’s discretion? I urge the Minister to think about whether this could be achieved in that way.
Lord Faulks
I am grateful for that advice and, if I may, will perhaps respond no further at this stage.
The information about financial resources is also a matter that will be probed in some detail, although time does not permit me to go into a detailed response on that now. I have heard the arguments that have been raised, and there will no doubt be profitable scrutiny of those provisions.
Judicial review is important but it is not a vase that would be caused to crack by simply touching it. We need to look carefully at the remedy but, none the less, it is one where change should be made.
I said at the outset that I could not cover everything. I have covered, I hope, some of the points that have been made and I look forward to dealing with them all in Committee—if, of course, your Lordships are prepared to give this matter a Second Reading. I conclude my speech by asking the House to give the Bill a Second Reading.
Women: Custodial Sentences
Lord Woolf Excerpts(11 years, 5 months ago)
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Lord Woolf (CB)
My Lords, I join the chorus of congratulations for the noble Baroness, Lady Healy, in achieving this very valuable discussion. Most of the ground has already been covered in the preceding speeches. I do not resent this in any way; they were ably saying what I would have tried to do on the subject.
I declare my interest as chairman of the Prison Reform Trust, a post I am extremely proud to hold. One of the recent achievements of the trust was contributing to the campaign to get general recognition in legislation that women prisoners are different and need special consideration. I am very glad to say that, as a result, and with the Government’s acceptance, Section 10 of the Offender Rehabilitation Act now makes that clear. I will use my limited time to say why that could now be the catalyst which is needed for what should have been achieved so long ago, in consequence of the excellent reports there have been. I am sure there is truth in what the noble Lord, Lord Ramsbotham, said about the lack of an individual to drive a programme of reform. However, I am happy that Section 10 gives hope to those who want a special programme for women offenders.
Things are already happening which could be significant for the future. First, there is the Prison Reform Trust’s three-year programme involving a number of those operating in this field, particularly the Pilgrim Trust, with the sole aim of reducing the imprisonment of women. It focuses on the particular difficulties that women in prison undoubtedly have, and I am sure that it will lead to beneficial results. I also refer to another, more recently initiated, programme which is spearheaded by the Mayor of London, the Prison Reform Trust and others. This focuses on finding out what really works, over time, for women prisoners in London. There is potential funding for this programme from lottery sources. If these funds could be made available, this could transform the situation. If the lottery makes this one of its primary targets—as I hope it will—it would be just the sort of initiative which is needed. I am sure the Government will respond positively to any of its recommendations and give it their backing.
Those who have ever had anything to do with prisons know that there are particular problems both because of the needs of women prisoners and because the female prison population is small, relative to the male one. The very small number of women who should be in custody need to have sentences which allow them to maintain connections with their children and the locality to which they will return after they complete their sentence.
Somehow we must recognise that fulfilling the requirement of Section 10 means that the sort of centres that have been talked about today are the obvious option. Where we must imprison women, we should do so in small centres in the locality so that they can maintain, as far as possible, the links with their family. I very much hope that when we come back to this subject—as we will, almost certainly—we will find we are progressing along that path.
Prisons: Education and Training
Lord Woolf Excerpts(11 years, 7 months ago)
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Lord Faulks
I well remember the debate and the prominent part which the noble Lord played in it. He will also recall the response that I gave him, which was that there was a considerable, co-ordinated effort to ensure that those IPP prisoners were enabled to engage in appropriate activities which would increase the likelihood of, although not guarantee, their release after hearing before the Parole Board. That is happening, and the Prison Service is well aware of the problem.
Lord Woolf (CB)
My Lords, on 1 April 24 years ago, if my recollection is correct, the British prison system was subject to a series of riots. A Conservative Home Secretary, now the noble Lord, Lord Waddington, asked me to make a report. Another Conservative Home Secretary, the noble Lord, Lord Baker, received that report and the House of Commons, with one exception, indicated that it accepted the recommendations, limited to 12, in that report. I am very pleased that a Government of whom the Conservatives are part have now focused on the importance of rehabilitation. Does the Minister agree that if you are going to have rehabilitation, it is very important, first, to control the numbers in prison and, secondly, to have the staff needed to cope with that number of prisons, for the reasons identified by the noble Lord, Lord Ramsbotham?
Lord Faulks
The noble and learned Lord is referring to the Strangeways report. I entirely accept that rehabilitation should be a key part of prison. The noble and learned Lord will recall that the transforming rehabilitation reforms mean that those serving short sentences for the first time will now be able to obtain support after leaving prison and will be enabled by means of resettlement prisons to have some continuity in the support that they receive inside and outside. I accept his general observations. It is a matter very much to be borne in mind.
Social Welfare Law
Lord Woolf Excerpts(11 years, 9 months ago)
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Lord Woolf (CB)
My Lords, I thank the noble Lord, Lord Low, for arranging this debate and I join in the chorus of congratulations to the noble Lord and his fellow commissioners on their excellent report. I am not surprised that the report should be excellent; I use that word in referring to it because, having regard to the commission’s membership, about which comment has already been made, I expected no less.
The person whom I wish to single out is Amanda Finlay. Not only was she vice-chairman of the commission, she was a most valued member of the team which worked on my report on access to justice in 1998. I hope your Lordships will forgive me if I make a comment or two about the relevance of my report in the context of the report by the noble Lord, Lord Low, because there are similarities. His report covers some of the same ground, although my report was primarily concerned with the procedures in courts that were making it difficult for the majority of litigants to obtain the access to justice to which they were entitled if they were going to be engaged in litigation. The Low commission’s concerns, as we have heard, were much wider. It was concerned with courts and tribunals, but I think that was a minority part of its report.
The Low commission’s main concern, as we have heard from the noble Lord, Lord Low, is the stressed position of those who need assistance in obtaining the help that they are entitled to under the welfare provisions of the law. As we have heard, it is a section of the community in the greatest need of help, and the state is under a fundamental and basic obligation to ensure that, so far as possible, its needs are met. As we have heard, the people in this group have been doubly disadvantaged: first, because of the pressures that have made them resort to the state to provide them with the means of meeting their basic needs; and, secondly, because their ability to receive the assistance that is necessary to ensure that they obtain the benefits to which they are entitled in law has been substantially reduced because of the cuts in legal aid and the reduction in funding that has occurred due to the need for austerity.
However, I agree with the noble Lord, Lord Bach, that when one looks at the contents of the report as a whole, although it reveals an extremely worrying situation, there are signs of good news. Those signs confirm what I believe to be the case—that if we take a broad, holistic view of the situation, there are ways in which the effect of the deficit in assistance, which is inevitable in view of the cuts that have been made, can be mitigated by appropriate action. The noble Lord, Lord Low, has referred to the type of action that is required. Of course, we have heard the clamour in the media over food banks. That has vividly demonstrated that the conferring of rights on members of the public is of little value if those rights are not complied with in a way that enables them to receive the benefits to which the law entitles them.
I hope that I can claim that, to an extent, the problems in the courts to which I have referred were mitigated by the steps taken in consequence of my report. They included a change in culture on the part of the judiciary and the legal profession over the past few years, which has meant that the needs of the less fortunate members of the community are taken care of in a way that was not always so obvious in the past.
I suggest that the Low commission’s report gives the Government an opportunity to secure a substantial improvement in the situation regarding welfare benefits. Even in these days of austerity, they should be able to take advantage of that opportunity in a way that will benefit the section of the public to which I have been referring. If that is to be done, it is essential that we take advantage of all the new methods of communication that now exist. Those methods enable an amazing amount of information to be provided, which could be very helpful to those who seek the benefits to which they are entitled.
In different areas of the country there have been experiments that have demonstrated beyond doubt what can be achieved. They are set out in the Low commission’s report and are prominent in the 100 recommendations the commission makes. The core of the majority of those recommendations is that they are designed to meet the need for advice. I have no doubt that the national advice helpline that the commission recommends would be of value, as is the kiosk that exists in Cambridge, which was used by 65,000 people in 12 months. Those sorts of initiatives have got to be extended. I hope that, in setting out these various trials, the report will help the Government with what surely must be the objective of any Government—namely, to do what they can to ease the problems of those members of the community most in need of assistance.
The commission also stresses the importance of education. Increasing the use of education will not change the situation overnight, but in the long term that must be very important as well. I suggest that the position is extremely urgent; no delay should be allowed to occur. The report deserves, and should receive, an immediate and strong endorsement by those in charge today. The present Government cannot hide behind the fact that there is going to be an election in a few months’ time. Action can start to be taken now and plans can be made. That applies to the Opposition as well as to the Government. I look forward to the responses from both the opposition spokesman and the Minister to what we are hearing this evening. Like other noble Lords, I, too, very much look forward to the maiden speech of the right reverend Prelate the Bishop of Peterborough.
Legal Aid
Lord Woolf Excerpts(11 years, 9 months ago)
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Lord Faulks
I can update the noble Lord by saying that in fact the total number of applications received is now 1,030, and the number granted is 31. I agree that it is a small percentage. It was difficult for the Government to predict exactly how many applications would be received. In fact, in some areas, including the area in which I practised, that of clinical negligence, there have been virtually none when it was expected that there would be very many. Trying to anticipate what might or might not be considered to be a violation of Article 6 has confounded many courts, not only in this country but also in Strasbourg.
Lord Woolf (CB)
My Lords, perhaps what the Minister has just said indicates that I may have been right when I differed as a judge from my distinguished predecessor, Lord Bingham. He took a narrow view of the word “exceptional” while I took a very broad view of it. I regard it as a word which should be used to ensure justice in all cases where justice is required. Does the noble Lord agree with my approach?
Lord Faulks
The answer to the noble and learned Lord is that it depends very much on the context in which “exceptional” is used. The context in which it is used in this particular section is by specific reference to the European Convention on Human Rights.
Costs in Criminal Cases (Legal Costs) (Exceptions) Regulations 2013
Lord Woolf Excerpts(11 years, 10 months ago)
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Lord Woolf (CB)
My Lords, we have heard powerful arguments advanced, and I shall try to avoid repeating those arguments. I commence by first thanking the noble Lord, Lord Bach, for bringing his Motion of Regret in respect of civil legal aid regulations. I strongly support those arguments. I also echo the support that has been given already to his remarks specifically in welcoming the noble Lord, Lord Faulks, to his new responsibilities. Those members of the judiciary on whose behalf I shall say a few words on this matter, because I think that they are particularly affected, would all welcome the fact that a leading counsel of his distinction is now a member of the government team dealing with justice matters—and they are justice matters that I want to speak about.
Our justice system is of course based on the common law. For many years I was a common law judge, who has a special responsibility that does not apply to the same extent to the civil legal system in clarifying and developing the law from which we all benefit. I differ from the Minister in his approach, which was ably addressed a few minutes ago by the noble Baroness, Lady Lister, in her useful remarks. The law is not there for one section of the community; it is there for us all. We all benefit from the protections that it provides and the setting that it provides for all our activities. The judiciary is concerned that all of the public should have access to justice. That must mean a justice system that is fit for the age in which we live and has developed in accordance with the way in which a common law system can develop, singularly because of the use of precedent, which is such an important part of our system. When the noble Lord, Lord Faulks, opened his case for approving these regulations, I was not clear whether he was saying that there would be any discretion to grant legal aid in the case of an issue which was obviously important for the courts to decide, but which would need the assistance of able counsel in order to decide the case. Sometimes that can be self-evident. The cases we are primarily talking about are dealing with points of law. In the case of points of law, it is particularly important that the courts should have the assistance of appropriate counsel to deal with the type of case before them.
In our system we now have a limited number of judicial assistants to help us in our work of doing justice, but they are very much a limited assistance. Our system does not compare with systems such as that in the United States, or even the system in Canada, because there they hear the appellate judges, who will normally have the responsibility of dealing with the developments in the law to which I have referred and are given much more assistance by very experienced young lawyers than is available in our courts.
Our courts depend on the judges themselves doing the research with the assistance of counsel. If they do not have before them counsel of the necessary ability to deal with this very small number of extremely difficult cases, the quality of those judgments will suffer. It is in that area that the quality of arms, to which reference has already been made, is of singular significance. I wonder, and doubt whether, the Government have appreciated—because of the justification which they have advanced for this change—the importance of the courts having the assistance of advocates of the ability needed to ensure that the arguments on both sides of a case are properly deployed when the case is one of those peculiarly difficult cases, so that it is impossible, perhaps on both sides, to say what the prospects of success are. These are therefore the cases which would very much come within the small group which these regulations could affect.
For that reason I ask the Minister, new to his responsibilities, at least to give the House an assurance that the matter will be considered from the point of view of the judiciary. If ways are not found to assist in this small number of cases, I have fear for the quality of justice in this country.
If a case is one where a lot of money is at stake, where large awards of damages will be available, then it is possible to come to arrangements whereby litigants can be spared the burden of carrying the weight of the costs involved in conducting the litigation themselves. Funders are available now. However, in the small group of cases about which we are talking no such funding is available. There is nothing which the funders would gain because there will be no judgment from which they can benefit at the end of the day.
In that situation, I say that one should look at the matter and ask oneself whether this is a case where the wrong target has been drawn in order to try to achieve noble objectives. If it has, it is very important, even though it is late in the day, that action is taken to ensure that the system of justice in this country does not suffer in consequence.
Lord Phillips of Sudbury (LD)
My Lords, I do not propose to go over the ground that has been so ably ploughed by the speakers thus far. I am afraid that I am not going to lend my noble friend the Minister any solace, because I fear that I, too, am strongly of the view that the measure that deals with borderline cases—the merits criteria statutory instrument—is flawed, and it is flawed in a profound cultural way. As others have rightly said, justice is not like most other forms of government expenditure; it goes to the very heart of our society.
As I said, I shall not replough old ground, although I should like to remind the House that in the consultation, which lasted for only two months, there were 16,000 written submissions, which is quite extraordinary. The vast majority of them were, as the noble Lord, Lord Bach, has already said, against these provisions. I simply want to quote paragraph 234 of the report of the Joint Committee on Human Rights issued on the 13th of last month. It is the seventh report of the Session and it deals with the matters that we are talking about tonight. In referring to the present situation—the status quo—it says:
“We were told by our witnesses that the Legal Aid Agency scrutinises the merits of borderline cases closely, and funds very few borderline cases, in effect exceptional cases”.
That is the point. Only 100 or so cases are involved, and I think that the sum of legal aid estimated to be at stake is around £1 million. Therefore, they are already exceptional cases and we must realise that they reverberate throughout the system. As the noble and learned Lord, Lord Woolf, has just reminded us, under the common law system of precedent, one of these cases can affect thousands of cases, which will not be brought as a result. Therefore, there is that to consider.
My other point is that the Joint Committee report is absolutely unequivocal about these borderline cases. It is worth reading—and I am sure that most noble Lords here tonight have read—the fourth chapter and the three conclusions at paragraphs 43 to 45 of the final recommendations and conclusions. I urge the Minister—perhaps he will refer to this in summing up—to give an undertaking to the House that the Government will not wait the three to five years allowed for under the LASPO Act for a review of the whole of that vital piece of legislation. However, if they persist in pushing forward with these measures—which I hope very much they will not—I hope that they will make a special case of borderline cases and review early the impact of what they are doing, not least in terms of access to justice and the cost of justice.
As the charity Justice, in its report on this matter, rightly pointed out, the cost to the Exchequer of depriving many of these borderline cases of legal support and the resulting wastage could far exceed the £1 million or so of savings that we are talking about here due to the length of cases, because there are so many more litigants in person, and so on. I hope that my noble friend may be able to say to the House tonight that there will be a special review of these borderline cases in the light of the criticisms made here and in the Joint Committee report and the criticisms made by many others.
Criminal Defence Service (Very High Cost Cases) (Funding) Order 2013
Lord Woolf Excerpts(11 years, 11 months ago)
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Lord Woolf (CB)
My Lords, I must start by making a disclosure about my judicial career, my career at the Bar and the fact that, since I retired as a judge, I have been a non-resident member of a barristers’ chamber. Of course, in accordance with the rules within this jurisdiction, a retired judge cannot go back to the Bar.
I congratulate the noble Lord, Lord Carlile, on bringing this Motion and on the way he presented it. I draw significance from the fact that the House has heard two speeches from people who, in very different ways, are able to talk about the issues before us, which have been rightly described as highly relevant to the administration of justice and the rule of law.
Having said that, I should make it clear that I also support what the noble Baroness, Lady Deech, has said from a different aspect, except that I would draw a different view from hers as to the benefits of merely postponing the date of implementation. I suggest that that would merely be sticking plaster on a very gangrenous wound. Something much more is required of the Government if they are to recognise the responsibilities that they have to the rule of law, and to which I know that the Minister attaches great importance.
Equally, I understand why the Government felt that there was a need to take action to curb the costs of the cases with which we are concerned. However, in considering whether the action taken is appropriate, I suggest that we have to ask ourselves three questions. First, will the action proposed achieve its purpose—that being to save money? Secondly, is this action disproportionate in the way that it affects a particular section of the legal profession? Thirdly, does it create a serious risk of damaging severely the criminal justice system of this country? I suggest to the House that, judged by those questions, this proposal fails all three of the matters that I have referred to as requirements.
It is the third effect with which I am primarily concerned, although indirectly that involves consideration of the first and second questions that I have identified as well. We are considering here the most eminent practitioners in the field of criminal law in this country. The noble Lord, Lord Carlile, has painted a vivid picture of the sort of cases that we are involved in. It is vital for this country’s justice system that those most difficult and demanding cases are properly tried. If they are not properly tried the whole of our criminal justice system will be under a dark shadow, which this Government will have created without proper consideration of the information available, to the extent to which consultation has taken place. I say that having been in practice at a time when the Bar would, to fulfil what it saw as its obligation to justice, take on cases up and down the country for the princely fee of two pounds four shillings and sixpence, irrespective of your seniority. Eminent counsel took those cases and took their share of responsibility for that. From what I know of the Bar standards today, I have no doubt that they would do it today if they had to.
However, you cannot expect people to go into a profession, rise to its top and be treated to the imposition of an arbitrary cut of the scale proposed here without damaging the reputation of that profession. These people are not only those on whom we rely to conduct the most difficult cases at present; they are also those we rely on to be our great criminal judges of the future. We also rely on them, by the way they conduct their practice, to ensure that the Bar gets in its recruitment programme among the brightest and the most able youngsters going through our universities today. Each of the Inns of Court has programmes whereby the senior members of the Bar—the sort of members of the Bar I am talking about—visit universities and talk to the students who want to know whether they should come to the Bar and, if they do, what sort of work they should do. They want to know whether they should take the risk of coming to the Bar in the present circumstances.
Certainly, when I was doing that, I was always able to say to them, “You will have a profession which demands a tremendous amount from you, but you will have the satisfaction of knowing that you are involved in a profession where the public at large respect what you do and which contributes to producing a quality of criminal justice that is admired around the globe”. In those circumstances, they have continued to come to the Bar. Who, however, will be able to tell people to come to the Bar when they know that they will be dependent on a Government who apparently consider it appropriate to impose a cut retrospectively, as the noble Baroness, Lady Deech, indicated, on the profession? How can you do so, as a person who has the well-being of these youngsters who are thinking of coming to the profession at heart—I speak as the father of three sons who have come into the law—if you know that what we have heard about will be on the cards when it comes to their career?
There is very real reason for the Government to reconsider their approach in this matter. It is very important that they do so. If they do not, they will unintentionally cause serious harm to a profession that it will take years, if not generations, to undo. What is at present a profession that the brightest and most able want to enter, will be one that they will feel they cannot possibly enter because the risks of doing so are so great.
I have read, of course, the report of the statutory instruments committee. I note what it says about the Government thinking it will be possible to get people not out of the top drawer but from a lower drawer to do these cases. The Government may be right in saying that, but what will be the calibre and quality of those persons? I can say, on the basis of my judicial career, that, as the judiciary works in this country, it is dependent on the Bar. It is dependent on the Bar not only for recruits but for the help it gives to the judiciary to do justice. You do not save money just by fiddling with fees. If there is the need to create savings that the Government say there is, they should have taken action before to ensure that judges have the benefit of barristers who are paid not by the hour or by the day, but on a more sensible basis in respect of cases so that they have the same incentive as the justice has that cases should be disposed of expeditiously and not in the way that sometimes happens because of how our fees are structured. Reforms were possible. Cases require management, but it has to be possible for the management to take place economically.
Offender Rehabilitation Bill [HL]
Lord Woolf Excerpts(12 years, 4 months ago)
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The Minister of State, Ministry of Justice (Lord McNally)
My Lords, I am pleased to move Amendment 1 which seeks to recognise the needs of female offenders and put them firmly in the Bill. It requires the Secretary of State to ensure that arrangements for the supervision and rehabilitation of offenders state that, in making those arrangements, he has complied with the public sector duty under Section 149 of the Equality Act 2010 as it relates to female offenders. The arrangements must also identify any provision that is intended to meet the particular needs of female offenders. It applies both to the contract with private providers and services provided by the public sector probation service.
I pay tribute to those noble Lords who have argued for such statutory safeguards for female offenders. I am particularly grateful to the noble and learned Lord, Lord Woolf, for his earlier amendments and for his constructive discussions with me about this amendment. I am delighted that he has agreed to put his name to the amendment today. I likewise thank my noble friend Lord Marks and the noble Lord, Lord Beecham, for adding their names.
The amendment inserts a new subsection in Section 3 of the Offender Management Act 2007, which relates to making arrangements for the provision of probation services. Under the first part of the amendment, arrangements for the provision of supervision or rehabilitation services must state that the Secretary of State has complied with the public sector equality duty at Section 149 of the Equality Act 2010. This means that the Secretary of State must consider evidence on the particular needs of female offenders where they differ from those of men, and consider whether any adjustments or special provision for female offenders is necessary to address these needs. Where a particular need is identified, this will be reflected in the contractual or other arrangements, which will include outputs specific to female offenders.
In order to win contracts, service providers will be required to demonstrate that they understand and will respond to the particular needs of female offenders where these differ from those of men. This will include, for example, taking account of women’s family and caring responsibilities. We will be looking for providers to come up with innovative ways to deliver gender-specific services that are responsive to local needs, and we will expect them to make links with partner agencies to provide a holistic service at a local level.
As I have mentioned to the House on previous occasions, service providers will be supported by guidance on working with female offenders and the sorts of provision that are known to be effective, which is being prepared in collaboration with members of the new advisory board on female offenders. Once bids have been through a robust evaluation process to ensure that potential providers are offering innovative and effective services to female offenders, the second part of the amendment requires contracts and other arrangements to identify anything in the arrangement that is intended to meet the particular needs of female offenders. Noble Lords will also be pleased to hear that, in the spirit of transparency, details of contracts and service level agreements will be published. This will mean that people can see what provision is being made to meet the needs of female offenders and hold us to account. Contract managers within the Ministry of Justice will also monitor service delivery to ensure that key outputs for female offenders are being delivered.
I hope that noble Lords will welcome and support Amendment 1, which I firmly believe will provide the recognition and safeguards for female offenders that the House has been seeking. I beg to move.
Lord Woolf
My Lords, I should remind the House, particularly in view of the generous way in which the Minister introduced the amendment, and his references to myself, that I am the chairman of the Prison Reform Trust, and received considerable help in putting forward the matter from that trust in that capacity.
This is a considerable step forward in the way in which we treat criminal offenders who are female. It has been well recognised that their needs are different, and it is certainly time that those who are responsible for meeting those needs should have responsibility clearly set out in statute. I am particularly grateful that the Minister and his advisers found ways in which that could be done in the shape of this Bill. The amendment is not as clear as I would have liked but it has to be recognised that what we are achieving is being done by using three pieces of legislation, which is not the ideal way to legislate, but it achieves a purpose. I am very conscious that we are told that we must not look a gift horse in the mouth when it is offered, but I have to confess that this gift horse, if that is an appropriate description, was examined most carefully.
I am particularly grateful for the way in which the Minister introduced this amendment. He stressed the importance of clarity and transparency with regard to various connected matters, so that it achieves the purpose he identified. During debates at the earlier stages of the Bill, the Minister indicated that there would be an annual statement of progress so we can all see that it is moving forward as we would hope. Does he not agree that this is one matter that can be dealt with that way?
It is possible that, when three pieces of legislation are involved—as in this case—the time will come when they are initially disconnected. If this does occur, I believe—and I am sure the Minister will confirm this—that the department will ensure that no prejudice is caused to female offenders as a result of any gap in time. I repeat my gratitude for this amendment and would strongly recommend it to the House.
Offender Rehabilitation Bill [HL]
Lord Woolf Excerpts(12 years, 5 months ago)
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Lord Ponsonby of Shulbrede
My Lords, I support the noble Baroness, Lady Linklater, in the general thrust of her amendments. Her introduction made clear the vulnerability of this group of young people and its importance in terms of their being very likely to reoffend. She also made the point very forcibly about the excellent work done by the youth offending teams, and that is something which I see very often.
It is my understanding that currently the youth offending teams can agree to continue working with any young person who turns 18 while they are sentenced. They will make that decision based on how well they know the young person. In my experience, if they know them even relatively superficially, they will commit to carrying on working with them for the very reasons that the noble Baroness, Lady Linklater, has given, such as the benefits of continuity and continuity of supervision.
Perhaps inevitably, I ask myself whether members of the youth offending team should be obliged to work with these young people if they hardly know them. I came across a case quite recently where a young man pleaded guilty to robbery with a knife and was looking at a two-year sentence. He had been in London for only a relatively brief time and was pretty much unknown to the YOT which had the responsibility for him. Is it right that the members of the team should have no discretion in whether they have continuity of supervising this young man when they do not know him? That is a practical problem. I agree with the noble Baroness’s general points that if there can be continuity it is preferable. We need to give discretion to the professionals involved. My experience is that they certainly will want to continue supervision if at all possible.
The noble Baroness, Lady Linklater, described Amendment 15, which gives the YJB responsibility up until the age of 21, as “whistling in the wind”. Here again, I agree with the sentiments behind this, but can see a number of practical problems, not least that parents or responsible adults are very often encouraged to be part of the sentence process. That may well not be appropriate for somebody who is over 18 but under 21. One would have to look at the sentences if one were to make that amendment.
There is a very serious piece of work to be done looking at the outcomes of YOTs versus the outcomes of adult probation providers for the 18 to 21 year-old group, because they have a different approach. I would say that the YOTs have a more caring approach, if I can use that word, to the people they deal with. The noble Baroness has raised a very profound question regarding people in the 18 to 21 age group and I agree with the general thrust of what she is saying. I presume she is not moving to a vote, so I leave it at that with my general support.
Lord Woolf
My Lords, I would like to express my general support for what the noble Baroness, Lady Linklater, has proposed and said and also for that which has been said by the noble Lord, Lord Ponsonby. I venture to suggest that anyone who has experience of dealing with young offenders in the courts would come to exactly the same conclusions as they have expressed. They have very good reasons to advance their comments. The position of those aged 15-plus to 18 is a particularly difficult area which has been neglected largely by the approach of the criminal justice system until now. I particularly urge that what the noble Lord, Lord Ponsonby, has said about that group is taken into account.
Lord Ramsbotham
My Lords, I, too, support the amendments so comprehensively spoken to by the noble Baroness, Lady Linklater. One reflection on what she has been saying about consistency and continuity has come to me about the involvement of the probation service with the supervision of young adults which it admittedly has not been very good with in recent years.
One thing that worries me about the thought of the professional probation service in future being responsible only for high-risk offenders is that young probation officers are not going to have the chance to cut their teeth on the low and medium-risk offenders on which they build up the expertise which they can then go on to apply to the higher risk offenders. One of the cases that is frequently quoted against the probation service is the case of a man called Sonnex who murdered while he was on probation supervision. He was under the supervision of a very young and inexperienced probation officer who should not have been put in charge of so serious an offender. I hope that the Minister will reflect on this and on the importance of career development for the National Probation Service, particularly for those who have to deal with this very important group of young adults.
Lord Woolf
“(7A) The Secretary of State must have regard to the particular needs of women when determining the requirements that should be specified by him under this section.”
Lord Woolf
My Lords, Amendment 5 is grouped with Amendment 18, and I hope that I shall be in order in addressing my remarks to both of them. Amendment 5 is in my name, and Amendment 18 is also in the names of the noble Lords, Lord Beecham and Lord Ponsonby. The two amendments deal with the particular position of female offenders, and are designed to give effect to an understanding that I hope is now generally accepted—that women offenders undoubtedly have particular needs. They are—to echo the words just used by the noble Lord, Lord Ahmad—a special group, who need particular attention. I hope that the Minister will feel that the amendments acknowledge what he has said previously during the progress of the Bill about his concern about female offenders in custody. He has expressed that concern eloquently, and I endorse what he has said. I hope that he, in turn, has now come to accept that it would be a significant move forward if a recognition emphasising the requirements of female offenders were included in the Bill, which takes a novel approach to dealing with the problem of reoffending.
Baroness Howe of Idlicote
My Lords, despite that important announcement, I want to say a very few words in support of the amendments of the noble and learned Lord, Lord Woolf. When we are taking into consideration the special needs of women and the fact that they might have been subject to domestic violence and have all sorts of other problems that need special attention, we should also remember the damage that imprisonment is likely to do to their family and the potential damage to future generations of children, who are much more likely to offend. I did not intend to take up time; I just wanted to remind. The Minister might like to remember those points when addressing the points that he has told us he is going to address.
Lord Woolf
My Lords, in view of what the Minister has said, which I take as a very positive indication to the House and to me, I do not propose to press the amendment further at this stage.