Prisons: Population

Lord Woolf Excerpts

Thursday 12th January 2012 Lords Chamber

[Lord McNally]

Again, there are great nods from the Opposition. Apparently the reality of the necessity for cuts has reached the Leader of the Opposition, yet any specific cut is met with shakes of the head. The police are being asked, as are many others, to carry through efficiency programmes, but we remain confident that they will deliver in terms of public safety while carrying out the programmes that have been requested of them.

[Lord Woolf]

Does the Minister agree that more important than when a prisoner is released is whether, when he is released, enough has been done while he is in custody to ensure that he does not quickly return to prison by reoffending?

[Lord McNally]

That is exactly the point that my right honourable friend the Lord Chancellor made. It is the rehabilitation of offenders that we must look at. Yes, people who have committed serious crimes should be put in prison but, unless you are going to keep them in prison for ever, you are going to release them at some stage. Therefore, the policy aim must be to put in place programmes of rehabilitation to avoid reoffending wherever possible. It was put to me on a prison visit that the best chance of avoiding reoffending is for prisoners to have the prospect of a job, a place to live and a relationship. Those are difficult things to put in place but that is, and will continue to be, the thrust of our policy.

Legal Aid, Sentencing and Punishment of Offenders Bill

Lord Woolf Excerpts

Tuesday 10th January 2012 Lords Chamber

[Lord Walton of Detchant]

My Lords, I had not intended to speak on this issue, except to give brief support to the amendment that has been tabled by the noble Lord, Lord Beecham, which he expounded so very clearly. My own personal experience of giving expert witness in neurological cases over many years, not for a long time but many years ago, has led me to give warm support to this proposal. It is fair to say that we heard comments a moment ago about expert witnesses in the field of paediatric neurology. This is an extremely difficult and sensitive area, particularly in cases of alleged child abuse when views have been taken by different experts on very good scientific evidence who have come to totally opposing opinions about the nature of the problem.

On the other hand, looking back on personal experiences, I have to say that the mechanism that I was familiar with many years ago has not been explored sufficiently. When I was involved in giving expert evidence in cases of head injury in miners, I remember receiving letters jointly signed by the then National Coal Board and the National Union of Mineworkers, saying that they would accept my report as being binding on both parties. That kind of agreement in advance of court hearings in cases of alleged negligence or industrial injury could be used very much more readily.

[Lord Woolf]

My Lords, may I say a few words in support of this proposal? Expert evidence is an area in which the courts have had considerable difficulties in the past. However, following on from what the noble Lord, Lord Faulks, said, it is right to acknowledge that great progress has been made over recent years in the way in which expert evidence is used in the courts, but the amount of knowledge that is available for expert reports in connection with litigation is limited. I suggest no more than that a review of the sort suggested in the amendment is well needed.

[The Minister of State, Ministry of Justice (Lord McNally)]

My Lords, I am most grateful to all noble Lords who have contributed to the debate. It has gone slightly wider in the use of experts than the narrow interpretation given in the amendment, and in some respects has read into the amendment things that are not there, but I shall try to deal with the points raised and noble Lords may then understand better what I am saying.

On the point made by the noble Baroness, Lady Kennedy, we are not withdrawing funds for experts. Where the case has public funding under legal aid and funding for expert opinion is appropriate, funding will be made available. The Government are working with the Legal Services Commission to develop and put in place a robust client and provider strategy that both reflects the demands and requirements of the new legal aid market and obtains the maximum value from the ongoing structure developed in the legal aid market.

In the Government’s response to the legal aid reform consultation, we confirmed that we would not be considering contracting with or paying experts directly in the short term because of the administrative costs to the LSC. However, when we have had time to consider the family justice review final report, which came out just before Christmas, we will look at this matter again. At the moment, there is no plan for the LSC to take this on from the solicitors to whom the noble Lord, Lord Beecham, referred.

Amendment 5 seeks to impose a duty on the Lord Chancellor to review the accessibility and quality of expert witness advice for the purposes of civil proceedings, as well as a duty to maintain or improve such accessibility and quality following the commencement of Part 1 of the Bill. This is an entirely unworkable amendment, in our opinion. By definition, expert witnesses are highly qualified and experienced professional individuals in their normally very technical fields. As professionals, they will be subject to the standards required by their respective professional membership bodies. It is not within the Lord Chancellor’s gift, nor should it be, to determine the quality provided by any given expert witness. Principally, this would be inappropriate; the Lord Chancellor cannot be expected to be in a position to determine the quality of the expert evidence or advice given, not least because the requisite expertise would not be held to reach a credible determination.

The costs of establishing a mechanism to assess credibly the quality of expert witnesses would also be prohibitive. Even if resources were unlimited, we have severe doubts as to the viability of such a mechanism. Disputes as to the accuracy or otherwise of expert evidence can be the subject of extensive debate and even litigation.

Legal Aid, Sentencing and Punishment of Offenders Bill

Lord Woolf Excerpts

Tuesday 10th January 2012 Lords Chamber

[Lord Pannick]

My Lords, this amendment is in my name and those of the noble and learned Lord, Lord Woolf, and the noble Lords, Lord Faulks and Lord Hart of Chilton. The amendment arises out of a concern expressed by your Lordships’ Constitution Committee, of which I am a member, and it relates to Clause 4, which will transfer responsibility for the allocation of legal aid from the independent Legal Services Commission to the Lord Chancellor’s Department. Decisions on legal aid in individual cases will henceforth be taken by a civil servant, who will be designated by the Lord Chancellor as the director of legal aid casework.

At paragraph 15 of the Constitution Committee’s report, we expressed a concern as to whether there are sufficient guarantees of independence in the Bill for the director of legal aid casework. The Constitution Committee also noted with concern that Clause 4 says nothing about the qualifications and experience required for such a post. The Joint Committee on Human Rights has, in its report, similarly expressed concern about institutional independence from the Government so as to prevent an appearance of a conflict of interest when decisions are taken about the availability of legal aid and the Government’s decisions may be challenged.

Given the central importance of the functions that will be conferred on this director, it is, I suggest, appropriate, and indeed necessary, to include in Clause 4 provisions that recognise the need for the Lord Chancellor to focus his mind on these issues of qualification and independence. Amendment 13 is not prescriptive as to the details; it leaves the detail to the Lord Chancellor. However, it is essential that this important issue of principle is addressed in the Bill. I beg to move.

[Lord Woolf]

My Lords, as is always the case, the noble Lord, Lord Pannick, has summarised the arguments in support of the amendment with admirable clarity. There is very little that I can add but, looking at these provisions, I should have thought that the Minister—although he may prove me completely wrong—would say, “Of course, that’s exactly what I will do. I will see that the person appointed as director has the qualifications that I consider necessary. How could I do otherwise?”. Likewise, I should have thought that he would say that of course the director must be independent. However, I urge the Minister not to be led astray by some argument on those lines. It is significant that the committees have expressed the concern to which the noble Lord, Lord Pannick, referred with the view that the position should be clearer. I say respectfully that the committees were right to take that view. We are concerned here with access to justice, which is a fundamental constitutional right. Where a right of that sort is involved, it is appropriate that the position is dealt with clearly.

The issue of what sort of civil servant would be appropriate to fill a particular role is always difficult. I remember a time when it was automatically assumed that any Permanent Secretary in what became the Lord Chancellor’s Department would be a qualified member of the Bar or a qualified solicitor. That no longer happens; the days when a barrister or solicitor would perform that role are past.

It is a different type of task that the director will perform. He will have the say-so in determining who is given access to justice—because without legal aid there may be no access to justice, and we all know that that would be a very worrying situation. Therefore, perhaps the Minister will recognise that, irrespective of the good intentions of an officeholder, sometimes it is of benefit if the person concerned is familiar with the subject involved. The experience of senior civil servants filling roles of this sort is that often departments do not feel comfortable with the independence of one of their civil servants who has been—if I may put it this way—seconded for a time to fill an office such as the one about which we are talking. In that situation it is very easy for a department to start giving instructions to “one of their own”—a civil servant whom they see as belonging to the department.

I hope that the Minister will forgive me if I give an example that occurred just before Christmas in connection with the Bill and which caused me to write to him on behalf of two of my noble friends who, with me, wanted to get the assistance of the chief executive of the NHSLA, Steve Walker. A later amendment suggests that there should be a process and a safety net to ensure that, where there might be a claim for medical negligence, a medical report should be obtained prior to litigation being started. We wished to have the advantage of the great experience of that official but were told politely and courteously that he would not be able to give us that assistance because the subject was too political for him to become involved with. I was very surprised and I am now glad that the Minister has properly responded to my concerns—although I have not received his letter—and that the position has been rectified. However, it illustrates how easy it is, when a senior civil servant is on attachment in a role such as that of the director, for those who are experienced in a department not to appreciate how important it is not to interfere with the independent way in which the individual performs their functions. Therefore, these amendments are sensible and I hope that the Minister will feel able to accept them.

[Lord Faulks]

My Lords, I, too, support the amendments. I will be brief, as the reasons were so admirably summarised by the noble Lord, Lord Pannick, and by the noble and learned Lord, Lord Woolf. The post of director will be critical for the preservation of whatever is left of legal aid. The concern of the committees was that there was at least the potential for conflict, as has been outlined, because the director might seek to follow the direction of the Lord Chancellor and not be suitably independent.

May I give your Lordships an example of how important the director’s powers may be and of how important it is that he or she should be seen to be independent? He will have to determine whether a case falls in the so-called exceptional cases category under Clause 9. I understand that the Minister may well be telling us in due course that this category and the availability of legal aid for exceptional cases is an effective answer or partly an answer to the apparent deprivation of access in relation to clinical negligence. I think that some of your Lordships may need some satisfying in this regard, but that I believe is one of the answers to the apparent lacuna.

Whether a case falls within the exceptional case category is bound to be somewhat controversial. Even the current decision-making exercised by the LSC is not short of critics. However, if a director is seen simply as doing the bidding of the Lord Chancellor at the relevant time, confidence in his independence will be significantly undermined. If a Lord Chancellor—not this Lord Chancellor, of course—were to decide that too many claims were being brought against government departments or the NHS, he could, at least in theory, give some rather firm guidance to the director on the process of determining such exceptional cases. Therefore, I suggest that it is vital that decision-making about the availability of legal aid should be seen not to have even the appearance of being at the whim of the Lord Chancellor or Cabinet colleagues but rather to be the proper determination by a suitably qualified director on grounds not of political expediency.

I dare say that this is very much what the Government’s true understanding of the director’s role is, in fact, to be, in which case I hope and expect the Minister to welcome these amendments, which set out, I hope in clear terms, what may be the underlying intention of the Government about the role of the director and his or her independence.

--- Later in debate ---

[Lord Thomas of Gresford]

My Lords, I wish to speak to Amendment 96 in my name. We take the view that the appeal to the First-tier Tribunal against a refusal of legal aid is a little excessive. However, we take the point that was made by the noble Lord, Lord Bach, a moment ago that the European convention requires that there should be an appeal process. We note that in Clause 11, headed “Determinations”, there is a provision in subsection (5) that regulations,

“must make provision establishing procedures for the review of determinations … and of the withdrawal of such determinations”.

That is fine, but we do not think that the review should be carried out by someone else within that executive agency about which I was talking a moment ago. We believe that an appeal should be made to an independent panel.

Your Lordships will recall that on Second Reading or on the first day of Committee I was involved in a clash over who had the longest involvement in legal aid. I recall that legal aid applications and appeals were very well dealt with by an independent panel of local solicitors within the area. It was all devolved. You did not have to come to London or attend a First-tier Tribunal in whatever building that tribunal sat. The matter was dealt with locally by people who understood the locality and probably knew the solicitor who was appearing before them to make an appeal, and had some idea how far they could trust that individual and how experienced he was.

[Lord Woolf]

As someone who was a member of such a committee, I should say that it also included members of the Bar. In view of what is happening to legal aid, members of the Bar may well be interested in performing this function.

[Lord Thomas of Gresford]

These events occurred long ago when I was in my solicitor phase. I was called “Mr” in those days. It was only when I became a barrister that I became “Esquire”, and later I became “learned”. These are the progressions one makes within the profession. Looking back to my early days, I think that the noble and learned Lord, Lord Woolf, is quite right: barristers were members of the panel that considered these applications. It was a perfectly satisfactory method of appeal, which was independent of the Government who were providing the funds. I envisage an independent panel to review the director’s decision, not an in-house person but people who could be referred to more cheaply than the First-tier Tribunal to which the noble Lord, Lord Bach, referred. I commend that process as opposed to the one put forward by Her Majesty’s Opposition.

Public Bodies Bill [HL]

Lord Woolf Excerpts

Wednesday 23rd November 2011 Lords Chamber

[Lord McNally]

I am happy to take that suggestion back. It sounds a reasonable idea although I do not know what the cost would be. All I can promise my noble friend is that I will take it back and let him know, via a letter that I can put in the Library of the House, what the reaction is to that. The AJTC’s budget for the 2010-11 financial year was £1.3 million, compared with the Civil Justice Council’s budget of a relatively modest £312,000. That reflects the fact that AJTC members are paid while CJC members are not.

So it is for reasons of efficiency, economy and effectiveness that the Government are not seeking to modify any of these proposals. There is no other public body that could easily take on the functions of the CJC, which is why we retain it. However, I insist that the reasons for abolishing the AJTC are as sound now as they were when this House took that decision some months ago. Although I am grateful to my noble friend Lord Newton for offering us the wriggle room, it is not wriggle room that the Lord Chancellor wishes to take advantage of. He wishes for this House to confirm the decision that it initially took and proceed as soon as possible with the abolition of the AJTC. I hope that is of help to noble Lords in the contributions that they want to make to this debate.

[Lord Woolf]

My Lords, I wonder if I might add my support to each of the points made by my friend, the noble Lord, Lord Newton. With the greatest respect, the Government have misunderstood why his latest proposal would be very positive indeed. The approach that has been developed over the period for which I have been concerned with administrative law in different capacities is to see that access to and the administration of justice are both significantly influenced by what happens in tribunals. Therefore, there has been a policy of ensuring that there is no geological gap between what the tribunals and other bodies of that sort, including the ombudsmen, do and what the courts do.

At various levels and in various parts of the administrative justice system to which the noble Lord, Lord Newton, and the Minister referred, there are now judges in place who play a leading role either directly or indirectly. They play it indirectly through the increasing incidence of direct appeals to the Court of Appeal from certain bodies and, where that is not possible, through judicial review. It is important to the rule of law that these bodies should be doing what is required of them.

What we have found is that both the criminal and civil courts need a council of the sort that the Civil Justice Council provides—one that brings together those who have personal and direct experience of the sharp end of running these bodies as chairmen, deputy chairmen or in some other such capacity, and very experienced practitioners. They should provide a brains trust, which could feed back from these bodies into the justice system as a whole. They can then perform their immediate responsibilities of improving the criminal or civil law, taking into account the position of these other bodies, and of improving the quality of what happens in the bodies to which I have referred,

The Minister made a case that all this could be done by the Ministry of Justice. No one has greater affection or admiration for the Ministry of Justice than I have, but I have to admit that there are certain fields in which practitioners have a greater insight than the ministry has. In the field of criminal justice, which is very important, and in the field of civil justice generally, which is equally important, it is now accepted that there should be a council, in addition to what the ministry can provide, to provide this extra insight into the subject. It is no answer to say that this insight can be achieved by the Ministry of Justice because such a body would supplement the ministry’s task and shine a light on this important area of providing justice that would otherwise not be available.

There has been a great improvement in the Bill—thanks to the debates on it—regarding the ability of the Ministry of Justice to listen. Having listened in turn to what the Minister had to say, I would to say to him, with the greatest deference and respect, that although there has been listening there has been no understanding of the nature of the body being put forward by the noble Lord, Lord Newton. For the reasons that he gave, I urge caution before deciding that this body should receive the chop. It should not be a sacrificial lamb.

Legal Aid, Sentencing and Punishment of Offenders Bill

Lord Woolf Excerpts

Monday 21st November 2011 Lords Chamber

[Lord Woolf]

My Lords, it has been a privilege to be able to hear this debate so far. If my arithmetic is correct, I have heard 14 speeches, and I am in the happy position of saying that there is nothing which has been said so far with which I disagree. I include in that the speech for the Government introducing this Bill, by the noble Lord, Lord McNally, in case it is thought that there was an implied exception.

I have two reasons for saying that this Bill has special relevance to me, with regard to the two inquiries which I carried out when I was a serving judge. The first inquiry related to access to justice, a subject about which we have heard quite a considerable amount so far. The second was the inquiry into riots in our prison system caused by overcrowding, a problem which, alas, is still with us today.

The inquiry into access to justice was over a decade ago, and it is not surprising that it should need looking at again after this period. I for one was very pleased when the Master of the Rolls invited Lord Justice Jackson to make his report. I do not think anyone can doubt that this difficult task was undertaken by Lord Justice Jackson, as the noble Lord, Lord Hunt, has indicated, in an exemplary manner. He had a huge amount of material to marshal, and he did so and made recommendations of which, I suggest, on the whole this House could make favourable use.

The inquiry was needed not only because more than a decade had elapsed since my attempts to improve the situation, but also because it was clear that reforms which were made, for which I bear no responsibility, were causing the system to become unbalanced. The conditional fee—for which the noble and learned Lord, Lord Mackay, is rightly to be congratulated—initially helped to obtain access to justice for those who were not able to use the court because they were neither poor enough to qualify for legal aid, nor wealthy enough to dine at the Ritz. That section of the community, which was a large section, at the time of my report was not receiving access as was necessary. However, while those changes initially worked well, the noble and learned Lord, Lord Irvine, thought, rightly or wrongly, that further changes were needed if the conditional fee arrangements were to work as hoped. The problem was that there were doubts as to whether they gave lawyers enough assistance to take on the really difficult cases because of the need for payment of an uplift fee, which it was hoped could be smaller than ultimately proved to be the case.

In addition, it was found that insurance was necessary. This is because the costs for a claimant if he was unsuccessful could be very substantial, and so we had the after-the-event insurance. This, from one point of view, was beneficial; but it had the effect that a claimant who had paid the after-the-event insurance premium was left substantially out of pocket. Therefore, it was ordered, first, that the uplift to which I referred should be paid by an unsuccessful defendant; and secondly, that the premium to which I referred should also be paid by an unsuccessful defendant. The practical consequence was that a defendant who was unsuccessful could end up paying four sets of costs: first, the costs he incurred himself; secondly, the costs of the claimant who won; thirdly, the uplift, which could be up to 100 per cent; and, fourthly, the insurance premium. I say to the House with absolute confidence that there were many defendants who regarded the total burden as wholly inappropriate, to the extent that they had no option other than not to contest cases that they otherwise would have.

Since I ceased to be Chief Justice, I have earned a living—here I declare an interest—by conducting mediations on occasion. I have found that some defendants reach settlements in the course of mediation that they would not otherwise have done because of the deterrent effects of the combination of four sets of costs. While one was very anxious that justice should be done for claimants, it must also be done for defendants in the same position. This is something that requires attention. In due course we will have to consider whether the proposals made in that regard will get us back to a situation where there is a fair balance between both parties in litigation.

I emphasise what was drawn to our attention by my noble friend Lord Faulks: namely, the fact that Lord Justice Jackson was not directly involved with the question of legal aid. He was not asked to report on it. I suggest that if the system is to be amended in the way proposed by the Bill, it is regrettable that he did not have an opportunity to look at the matter objectively and independently in the way that was needed. I fear that his report could be a victim, as I consider I was because I was only shown part of the picture of where change will take place.

In the Cambridge lecture of 5 September last to which my noble friend Lord Faulks referred, which I read with interest, Lord Justice Jackson gave an indication of his views on the matter. He said:

“Let me make it plain that the cutbacks in legal aid are contrary”—

and I emphasise “contrary”—

“to the recommendations made in my report”.

Again, I encourage the House to accept that view. Lord Justice Jackson went on to state that if the position were to remain as is now proposed, an additional exception should be made to the cuts in legal aid. He said:

“On the assumption that it is decided not to maintain civil legal aid at present levels, the question may possibly arise as to whether any particular area of civil legal aid is particularly important and should be salvaged from the present cuts. My answer to that question is that of all the proposed cutbacks in legal aid, the removal of legal aid from clinical negligence is the most unfortunate”.

I hope that the House will pay attention to that remark. I see the time that I have already taken and I apologise for speaking for two or three minutes more. I would like to say something else with regard to Part 3.

I am the chairman of the Prison Reform Trust and I am grateful to my noble friend Lady Howe for her comments, which are based on research done by that trust, and which deserve considerable attention. There are matters on which the Government are to be congratulated. They have been mentioned by other Members of the House and there is no need for me to go over the same ground.

However, I submit that when we now know the problem with IPPs, it is extraordinary that the House should be asked to accept a more modified form of IPP. The one thing we want to avoid is people being in custody longer than they should be. Although the Bill repeals IPPs, it is, understandably, not retrospective. We have a deplorable situation in our prisons today, where thousands of prisoners who might be able to be safely returned to the community cannot be, because unfortunately the Parole Board is not in a position to deal with their cases due to the resources available to it. That will continue for some time. Surely it would be possible to change the procedures for those prisoners to obtain release? There is nothing in the Bill about that.

With that indulgence from the House, I conclude my remarks. I hope that there will be many amendments with which I can be associated that will improve this Bill in the spirit identified by the noble Lord, Lord Faulks.

Justice: North Liverpool Community Justice Centre

Lord Woolf Excerpts

Tuesday 21st June 2011 Lords Chamber

[Lord McNally]

It certainly is part of the appraisal. One factor that has played very heavily is the fact that the centre is in a deprived community and has a permanent judge of very high rank who is able to hear a wide range of cases. These factors come into effect, but we also have to weigh other factors. The study so far does not show a great impact on reoffending rates, but that has to be a factor. The overall cost of the facility also has to be taken into account in present circumstances. However, we are looking across the board and later in the summer we will be able to draw lessons from the study.

[Lord Woolf]

My Lords, does the Minister appreciate that this initiative followed one that happened in the United States? There, it has been an immense success. I disclose an interest not only because of my chairmanship of the Prison Reform Trust but because I was responsible for recommending to Ministers in the previous Administration that they should look at what was happening in the States and introduce this experiment here. They did so and were very impressed. The experiment provides a solution where other systems do not. Above all, it can tackle repeated offending, which is so important.

[Lord McNally]

My Lords, most certainly this followed a similar experiment in the United States, although I think that I am right in saying that the experiment was not repeated across the United States. It is one of a number of pilots initiated by the previous Administration. We are trying to draw the best lessons that we can from these pilots, including lessons about reoffending and cost effectiveness. That is partly why we are conducting the review and trying to learn lessons from other pilots that are being conducted in other parts of the country.

Public Bodies Bill [HL]

Lord Woolf Excerpts

Monday 28th March 2011 Lords Chamber

[The Earl of Listowel]

I echo the many tributes paid in Committee to the Minister and his colleague, Crispin Blunt, for the Government’s overall policy in this area. I strongly support and welcome the amendments from my noble friend Lord Ramsbotham and the noble Lord, Lord Warner. I fear that in this area I am forced to disagree with the Government’s direction of travel.

On the matter raised by my noble friend about strategic leadership in this area, the children involved have very complex needs. As vice-chair of the All-Party Parliamentary Group on Children and Young People in Care, I am well aware that a quarter of these children will have come out of local authority care. Indeed, 50 per cent of the girls have been in local authority care. With the reduction in numbers of children coming into custody, we are left with a hard core of young people with even more complex and challenging needs. I should also say that I am a patron of Voice, an advocacy charity for young people, which goes into secure training centres and young offender institutions.

I was glad to hear of the discussions that have taken place since the Committee stage. The Government will be bearing in mind the contributions of the noble Lord, Lord Newton of Braintree, and the noble Viscount, Lord Eccles. We heard in Committee that more than 1,000 fewer young people have been taken into custody in the past three years. To keep a young person in a young offender institution costs £120,000 a year; to keep a young person in a secure training centre costs £160,000 a year; and to keep a young person in a local authority secure children’s home costs more than £200,000. Therefore, many hundreds of thousands of pounds are saved by the successful regime of the Youth Justice Board in reducing the numbers of children in custody.

That money is being reinvested in making the secure estate more effective at rehabilitating young offenders. I recently visited the Wetherby young offender institution and was particularly interested to see its Keppel unit, which is for the most vulnerable young people. I see the right reverend Prelate nodding to indicate his knowledge of the unit. There, for instance, the boys have showers in their own rooms. Normally there are collective showers, but that easily gives rise to bullying and intimidating behaviour. The boys are extremely proud to have a shower of their own; they arrange their shampoos of various kinds. They also have a very good relationship with the prison officers because the ratio of prison officers—so often criticised by my noble friend when he was chief inspector in previous reports on prisons for young people, with a large number of young people for a few prison officers—has been turned around at Keppel. That is so important to the rehabilitation of those young people.

I fear that I am speaking for too long, but the issue has been raised of the need for strategic leadership in this area. Secretaries of State and Ministers have too much to do to give full attention to that needy group of young people and to make the difference in their lives. The chairman of the Youth Justice Board can do just that and has been doing so. She invited the children's directors and chief executives of the local authorities in the north-east of England, in Manchester, Stockport, Rochdale and Wigan, to visit the young offender institutions to see for themselves what happens there. I spoke to one of the deputy chief executives following his visit. He could now see clearly his responsibility as the leader of a local authority to help resettle those young people, because the holy grail of success in this area is what happens when young people leave custody. They need to be found appropriate accommodation. Following the Youth Justice Board chairman’s work, there is now a consortium in the north-east; those local authorities are working together. They have hired the charity Catch 22 to supervise proper accommodation for those young people.

I strongly support the amendments and hope that the Minister will consider accepting them today.

[Lord Woolf]

My Lords, I hope that your Lordships will forgive me, because I have not spoken to the amendment at earlier stages; it was not possible for me to do so.

I echo what has already been said about the care which the Government have taken to reconsider other parts of the Bill and to take into account comments made by those who have had certain experience in the area. I am sad indeed—because I thought that the result might be otherwise—that, so far, the Government have not felt able to change their approach towards the Youth Justice Board.

I speak from personal experience in various capacities, which perhaps I should declare. One is from my concern with criminal justice as, first, a barrister and then a judge. The second is because I have recently become chairman of the Prison Reform Trust. The third, and most important in this context, is because I was involved in—indeed, I led—the Strangeways investigation and report. I have over many years been so disappointed that initiatives which have proved themselves to be successful have not been able to grow and develop to fulfil their full possibilities. My experience goes back to the time before the Youth Justice Board’s creation and before its leadership by the noble Lord, Lord Warner.

I can only say to the House, as sincerely and as emphatically as I can, that this initiative has been wholly salutary. It managed to change the whole approach to a part of the criminal justice system—and, if I may say so, perhaps one of the most difficult and important parts of the criminal justice system—in a way which gave new hope to all those who were concerned for this area of our justice system. The best test of the innovation is to ask, “Did it work?”. I would not say that it was always perfect—no change would be—but the balance sheet would show a huge improvement as a result of the Youth Justice Board.

I would urge as strongly as I can that the House consider the importance of this matter, as I am sure that the Government intend to do. However, it would be sacrilege if, whatever the motives put forward, we took out of the criminal justice system something that works, and introduced something that has not worked and has not been tried. I therefore hope that before such a result is brought about, there will be at least the pause for which the noble Lord, Lord Ramsbotham, has asked, to see how matters are dealt with in the Green Paper. I have to say that it really would be sacrilege to rush in and do something which is untried when the experience indicates that we cannot afford to do without the positive influence of the Youth Justice Board.

Public Bodies Bill [HL]

Lord Woolf Excerpts

Tuesday 11th January 2011 Lords Chamber

[Lord Woolf]

My Lords, it is a while since I first addressed the House with regard to this Bill. I start my present remarks by saying that I acknowledge that the Government have made a significant improvement to the Bill in the action that they have taken. I congratulate the Minister and his team on the attention that they have given, particularly to the bodies associated with the courts that had been in Schedule 7. I feel much more comfortable with the Bill in consequence of the changes that have been made. However, I have to say that this Bill, which is sometimes referred to as achieving a bonfire of quangos, would in my view be further improved if there was to be a bonfire of Schedule 7. I hope that the further consideration of the Bill, which I believe is still continuing, will bring about that result.

I listened with great care to what the noble Lord, Lord Hunt, said about the provisions that are the subject of his amendments. I do not think that I can usefully add anything to that, apart from saying that when the boards were introduced—I was Lord Chief Justice at the time—arrangements were made for a senior judge, one no less distinguished than the present Lord Chief Justice, to serve on that board to express the views of the judiciary. However, I think that things have moved on since then, so the topic is much more debatable than it would have been some time ago. The arrangements for consultation between the judiciary and the departments with which they are particularly concerned are in general working smoothly, so the boards are no longer as important as they were in the early days of the unified criminal justice system.

On the inspectorate, I would urge that the speech that we have just heard from the noble Lord, Lord Ramsbotham, who probably knows more about inspectorates than anybody else in the country, should be listened to with care. The inspectorate for the courts system was not, if my recollection is correct, a proposal about which the judiciary jumped with joy when it was first suggested. It was thought—I would say with good reason—that there could be insuperable problems over the independence of the courts system if an outside inspectorate was to look in at what the courts were doing. All that I can say is that, in practice, the inspectorate has worked remarkably well, as have all the inspectorates, of each of which I am a fan. The inspectorates make a significant contribution to the proper functioning of the administration in the areas in which they operate. I do not think that it was intended to be suggested—and if it was, I would not agree with the suggestion—that the inspectorate should act as a sort of court of appeal. If the inspectorate keeps to administration, it can perform a useful function. That function will still have to be performed even if the inspectorate does not exist and, if the inspectorate is abolished, proper arrangements will need to be made to ensure that that happens.

[Lord Lester of Herne Hill]

My Lords, I apologise to the noble Lord, Lord Hunt, that I was not able to be here to hear his speech. I was upstairs in the Joint Committee on Human Rights, which has authorised me to ask the Minister whether, as we were given to understand, we will receive the human rights memorandum from the Cabinet Office so that our committee can do its job properly. That memorandum has still not been received and we want to finalise our report by next Tuesday. I hope that the Minister can tell us in his reply that what was promised many weeks ago will happen.

My second point in general support of the amendments is that, although it is admirable that some bodies of a judicial nature may be removed from the schedules by other amendments, if Amendment 175 in my name and in the name of the noble Lord, Lord Pannick—a paving amendment for which was approved by the House on the first day in Committee—is accepted by the Government and not sought to be reversed in the other place, the provisions in Amendment 175 will be relevant to our discussions today and hereafter. It is unsatisfactory that we are having this debate without knowing whether Amendment 175 will stand. Importantly, Amendment 175 would apply not only to courts but to any body—whether a court or not—that performs a judicial function and it would deal with the issue of independence raised by the noble Lord, Lord Ramsbotham.

In a sense, we are putting the cart before the horse because a failure to insert into the Bill the criteria against which all these decisions can be measured means that we are having to proceed piecemeal, body by body, at enormous and appalling length in the Committee process. I respectfully urge the Government to accept these amendments for all the reasons that have been given so far but to deal with the system of the Bill as a whole by indicating at an early stage that Amendment 175 or a similar provision will bind Ministers when they exercise their delegated powers. That is the price that Ministers must pay if they are not to proceed by way of primary legislation. There need to be constitutional limits on the powers exercised by Ministers, as Committees of this House have indicated in the past.

Referendums: Constitution Committee Report

Lord Woolf Excerpts

Tuesday 12th October 2010 Lords Chamber

[Lord Woolf]

My Lords, I, too, was a member of the Constitution Committee at the time it was considering this issue, but of course I am no longer a member. I thought the fact that the committee selected the issue of referendums, or referenda, as an appropriate subject for its consideration was indicative of the importance that the part of the Constitution Committee plays within the workings of this House. We should take satisfaction from the fact that there are committees which are prepared to tackle extraordinarily difficult topics in a way which is helpful to the consideration of important issues. It was a privilege to be a part of that committee under the chairmanship of the noble Lord, Lord Goodlad. It is clear from the admirable way in which the committee’s report was opened to the House by the noble Baroness, Lady Jay, that the noble Lord’s successor meets the calibre that the Constitution Committee requires if it is to be properly chaired. We had a masterly, if I may use that term, laying before us of the contents of the report.

The thrust of the report, read as a whole, is clear. It says not that a referendum can never play a proper constitutional part in the workings of our unwritten and unentrenched constitution, but that those occasions should be strictly limited to where it can be done appropriately. If that be the situation, it is inevitable that political considerations will influence the Government of the day when they think that there should be a referendum. All that it is possible to do is develop conventions one by one which ensure that, in espousing a referendum on a particular occasion, we are not further undermining the strength of parliamentary representative democracy, the fundamental basis of which has been that the citizens of this country express their views by voting into power Members of Parliament and, through them, the Government of the day. Each time that people decide that there is a need for a referendum, they are to some extent undermining the commitment of this country to representative parliamentary democracy. For that reason alone, I suggest that we should use it only where we are satisfied that it will contribute to the proper governance of this country to do so.

What are the tests? The committee made it clear that there was no satisfactory single test. It was identified that the obvious situation where referendums may be able to play a part is where significant or fundamental constitutional change is proposed. However, as has been pointed out more than once during this debate, the definition of fundamental constitutional change is an issue on which views can differ. I do not need to remind this House, which will in due course be addressed by the noble and learned Lord, Lord Falconer, on behalf of Her Majesty’s Opposition, that Governments can make deplorable mistakes as to what is a fundamental constitutional change. The Government of which he was a Minister thought that to change the role of the Lord Chancellor was not a matter that involved a fundamental constitutional change, albeit that subsequent events have shown beyond peradventure that it involved reconsidering and redefining the relationship between the judiciary, the legislature and the Government, all three arms being critical to the proper working of the constitution.

So we should heed the message of the report. If we are to adopt the referendum as part of our constitutional practice, we should ensure that it plays no more part than it should, having regard to the circumstances when it can supplement our basic approach to the governance of this country.

Supreme Court: Retirement Age

Lord Woolf Excerpts

Monday 12th July 2010 Lords Chamber

[Lord McNally]

One thing that the Lord Chancellor told me when I joined him in the Ministry of Justice is that the politicians and the judiciary kept well apart. I intend to follow that advice.

[Lord Woolf]

My Lords, further to a point that has already been made, may I remind the Minister that age is not the only consideration that must be borne in mind when finding a replacement for one of the Justices of the Supreme Court? In particular, there are members of that court who have a special expertise that is very difficult to replace. Although we have not mentioned his name, the member of the Supreme Court who is due to retire next May, and will then have been there less than two years, is probably the outstanding private international lawyer in the judiciary as a whole. The argument about keeping people there while holding up others does not apply when it comes to replacing that sort of expertise.

[Lord McNally]

My Lords, I hear entirely what the noble and learned Lord says. Without prejudging the issue to which he referred, dare I say that hard cases make bad law? However, there is a wider issue about our Supreme Court. It would perhaps be revolutionary to get our second woman and our first ethnic minority representative in the Supreme Court. A lot of work has to be done if we are to have a Supreme Court that reflects Britain in the 21st century but there is clearly room for 58 year-olds in it as well.