Right to Die

Debate between Lord Falconer of Thoroton and Lord Faulks

Thursday 14th July 2016 Lords Chamber

[Lord Faulks]

I am grateful for that suggestion. There are different views about whether it is appropriate for the Supreme Court to instruct Parliament to do anything. A lot of academic lawyers consider that Parliament is much better equipped to decide these issues. Judges and courts will inevitably consider the matter on a case-by-case basis as opposed to the polycentric view that Parliament will be able to bring to it. I respectfully submit that it is a matter for Parliament.

[Lord Falconer of Thoroton (Lab)]

My Lords, there are significant issues about end of life: palliative care, which everyone wants to see better and more widespread; the assisted dying issues which the noble Baroness, Lady Meacher, referred to; and also how end-of-life decisions are taken with people who are dying, which is nothing to do with the assisted dying issue. With a new Government and with genuine concern about this issue, what would the Minister think about a royal commission or a similar body being set up to address the issues of end-of-life care, including assisted dying?

[Lord Faulks]

The noble and learned Lord will not be surprised that I am not able to give any announcement to the effect that there should be some sort of commission at this stage, but clearly there remains great concern. This is a very difficult issue. Polling indicates a move towards the approach exemplified by the noble and learned Lord’s Bill. No doubt any Government, of whatever hue, will have in mind what the public want.

Queen’s Speech

Debate between Lord Falconer of Thoroton and Lord Faulks

Tuesday 24th May 2016 Lords Chamber

[Lord Faulks]

The noble Lord will know that both Houses of Parliament have had a chance to consider this issue on more than one occasion. The House of Commons has decided by a significant margin that it does not wish prisoners to have the vote, and that remains the position.

As I indicated, the Government have a clear mandate, but I want to address some worries that have been raised and talk about what our proposals will not do. Our reforms are not about eroding people’s human rights. They are not about walking away from the list of fundamental rights set out in the European Convention on Human Rights. The Government are and will remain committed to the protection of those rights.

The problems that have been highlighted by many—all over this House and in the other place—about the way in which human rights have been applied are not to do with the text of the convention itself. Rather, they are to do with its interpretation, which has been extended far beyond what those who drafted it ever planned.

[Lord Falconer of Thoroton (Lab)]

Can we take it from that incredibly encouraging part of the Minister’s speech that the Human Rights Act as currently in our law will continue to reflect in its wording that of the European Convention on Human Rights?

[Lord Faulks]

What I in fact said was that the Bill when it emerges will reflect all the rights contained in the European convention, not the Human Rights Act. The Human Rights Act indeed reflects the convention. The way in which the convention has been interpreted is our quarrel with the Human Rights Act, not the contents of the convention itself.

We have seen claims brought by people who have themselves shown a flagrant disregard for the human rights of others. Even where claims are unsuccessful, the fact that they can be brought at all serves to undermine public confidence in the Act. So we will bring forward proposals for a Bill of Rights to replace the Human Rights Act. We want our Bill to protect fundamental human rights but also prevent their abuse and restore some common sense to the system. Our proposals will focus on the expansionist approach to human rights taken by the Strasbourg court. These are of course matters of great importance and there will be passionate views on different sides of the debate, but I hope that noble Lords will approach our proposals with open minds when they are brought forward for detailed consultation.

In that context, I was disappointed to read that Alistair Carmichael MP, the Liberal Democrats’ home affairs spokesman, said last week of the Bill of Rights:

“We will try to torpedo this plan in the Commons and Lords”.

First, we have not yet published our proposals, so it is a somewhat premature observation. Secondly, it is a clear manifesto commitment. Surely scrutiny, rather than destruction, is appropriate in the circumstances. Thirdly, if a torpedo is to be fired, the Liberal Democrat numbers mean that its arsenal is located here in Your Lordships’ House, the unelected House. I wonder whether the noble Lord, Lord Marks, when he comes to wind up for his party, would reassure your Lordships that, however rigorous the scrutiny of our proposals might be, it will not amount to an attempt at wholesale destruction. The public who elected this Government surely deserve better than that.

I shall now address the Government’s priorities on matters of home affairs. First, I turn to the Investigatory Powers Bill, which will govern the use of those powers by law enforcement, the Armed Forces, security and intelligence agencies and other public authorities. The Bill responds to three independent reviews of investigatory powers, including the statutory review conducted by the Independent Reviewer of Terrorism Legislation, David Anderson QC. The two other independent reviews, conducted by the Intelligence and Security Committee of Parliament and the panel convened by the Royal United Services Institute, have also been carefully considered.

Last autumn, a draft Bill was scrutinised by three parliamentary committees, which received a significant body of written evidence and heard from government and many other groups. The revised Bill, along with further explanatory material, reflected the majority of the recommendations of all the committees and reviews.

I reassure noble Lords that the Government appreciate that these powers, which have an impact on privacy, must be used with great sensitivity. Privacy is at the heart of this Bill, as it provides for greater protections and safeguards for existing powers and ensures that any misuse is punished. Powers are necessary to uphold the security that allows the public to enjoy that privacy. In the revised Bill we made privacy safeguards stronger and clearer, incorporating additional protections for journalists and statutory protections for lawyers. We have provided the time needed for a full parliamentary passage to ensure that Parliament gives the Bill the scrutiny that such an important piece of legislation deserves.

I am sure that noble Lords will agree that our pluralistic values make Britain a civilised country in which to live, but extremists with dangerous views try to undermine those values. We cannot tolerate this promotion of hatred and intolerance, which divides communities and sets people against each other. People in Britain today should never have to suffer hatred and violence because of their race, religion or sexuality; women should not be denied equal access to rights; and children should never be taught to despise the values that we all hold dear. We have delivered the counterextremism strategy to defeat all forms of extremism. As part of this strategy, we will bring forward new legislation to ensure that we are equipped to confront extremists and protect the public.

The gracious Speech also includes the Policing and Crime Bill, which will continue our reforms of the police. Since 2010, a radical programme of police reform has been under way. It has seen the introduction of directly elected police and crime commissioners to ensure greater accountability and transparency in policing. I pause there to congratulate the noble Lord, Lord Bach—not currently in his place—who was recently elected a PCC for Leicestershire. Although I am not sure that the party opposite wholly welcomes police and crime commissioners, it is good to see that they are joining in the system and embracing it fully.

The programme of reform has driven through efficiencies of £1.5 billion in cash terms. Crime has fallen by more than a quarter since 2010, with 2.9 million fewer crimes a year, according to the independent Crime Survey for England and Wales. The Bill will make the police more efficient and effective, enhance democratic accountability, build public confidence and ensure that the right balance is struck between the powers of the police and the rights of individuals. By providing police and crime commissioners with the ability to create more collaboration between police and fire services, the Bill also enables both emergency services to make significant savings in the delivery of their back-office functions.

The gracious Speech includes a Bill to introduce important changes to the way that this country tackles money laundering. This country has a robust anti-money laundering regime, but we must ensure that we can tackle the increasingly complex mechanisms used to launder illicit funds in order to allow our law enforcement agencies to identify and seize criminal assets. These changes will result in greater disruption of money laundering and activities that finance terrorism, as well as the prosecution of those responsible and the recovery of the proceeds of crime.

The gracious Speech sets out measures on how power is to be distributed across the UK and how decisions are taken. The Government are committed to establishing a secure settlement for the constitutional arrangements across our country—arrangements that provide the different nations of the United Kingdom with the space to pursue different domestic policies should they wish to do so, while protecting and preserving the benefits of being part of the bigger United Kingdom family of nations.

We said we would move quickly to implement the further devolution that all parties agreed for Wales and Scotland and deliver the Stormont House agreement in Northern Ireland. That is what we are doing. The Wales Bill would make the devolution settlement in Wales clearer by introducing a reserved powers model, like the system already in place for Scotland. The National Assembly for Wales will be able to legislate on any subject unless specifically reserved to Parliament. This Bill will also reflect the permanence of the Assembly and the Welsh Government in statute.

Crown Court (Recording) Order 2016

Debate between Lord Falconer of Thoroton and Lord Faulks

Wednesday 27th April 2016 Grand Committee

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

My Lords, the draft order removes the prohibition on recording court proceedings to the extent necessary to enable a judge’s sentencing remarks in the Crown Court to be recorded on a not-for-broadcast basis for the purposes of a test. Before setting out details of the order, I will briefly explain some background to the policy.

As noble Lords may be aware, the recording and broadcast of proceedings in courts, other than the Supreme Court and the Court of Appeal, is prohibited by Section 41 of the Criminal Justice Act 1925 and Section 9 of the Contempt of Court Act 1981. Section 32 of the Crime and Courts Act 2013, which received Royal Assent in April 2013, enables the Lord Chancellor, with the agreement of the Lord Chief Justice, to make an order specifying circumstances in which the prohibitions on recording and broadcasting may be lifted. The Crown Court (Recording) Order 2016 is the second order to be made under that power.

Why are the Government doing this? There is evidence to suggest that the more informed people are about the justice system, the more confidence they will have in it. Of course, few people have direct experience of court proceedings, and public understanding of the way the justice system works is inevitably limited. In principle at least, our courts are open to all members of the public who wish to attend, but in practice very few people have the time or opportunity to attend and see what happens in person. We believe that we should make our courts more accessible and make it easier for the public to understand court proceedings. Increasingly, people rely on television and the internet for access to news and current affairs. It is right to respond to changes in technology and society, and therefore to allow cameras into our courts.

While it is important for justice to be seen to be done, this cannot be at the expense of the proper administration of justice, the integrity of the trial process or the reputation of the courts. The courts deal with very serious matters that can affect the liberty, livelihood and reputation of all parties involved. The proposed test period at the Crown Court venues agreed with the Lord Chief Justice provides the opportunity to examine how we can film in our courts in a way that protects the individuals involved and preserves the dignity of the courts and the trial processes.

I am conscious that there will be concerns about the welfare of victims and witnesses, and the potential for court broadcasting to have a detrimental effect on their experiences in court. In the event that a victim or witness is present in court during the recording of a judge’s sentencing remarks, there are a number of safeguards in place designed to minimise any potential impact that the recording might have. The order does not permit the filming of victims or witnesses, or indeed any other court user, including staff, members of the public, defendants and advocates. It will be a matter for the judge to decide whether or not filming of a particular case should be allowed and they will take into account the interests of victims and witnesses when considering this. In addition, existing reporting restrictions will continue to apply, and Section 32(3) of the Crime and Courts Act 2013 provides that the court may stop or suspend filming in the interests of justice, or to prevent prejudice to any person. Any breach of the terms of the order may amount to a contempt of court.

None of the cases recorded during the test will be available for broadcast to the public. Recorded material will be used only by the judiciary, Her Majesty’s Courts & Tribunals Service and the Ministry of Justice for the purposes of the test, including assessing whether or not it has been successful.

The Government are committed to increasing transparency and providing the public with information on the operation of public services, and the justice system is no exception. To many people, the law remains mysterious. Public understanding of how the courts work, and sentencing in particular, is critical to maintaining confidence in the system and ensuring that justice is seen to be done. We believe that the order before your Lordships today is an appropriate step forward in testing how we allow for greater visibility of what goes on in our courts without undermining the quality and reputation of our justice system.

At the end of the test period the lessons learned will be considered by the Lord Chancellor and the Lord Chief Justice to help inform their decision on whether or not broadcasting of judges’ sentencing remarks in the Crown Court should be permitted in future. If they agree, we will return to the House with a third order to allow broadcasting of recorded material to commence. I commend the draft order to noble Lords and I beg to move.

[Lord Falconer of Thoroton (Lab)]

I am grateful to the Minister for introducing this very interesting and important order, which my party and I support. I will ask a number of questions about the order itself and the policy underlying it, but before I do so, I will set out our position in relation to this. In principle, more broadcasting and recording of courts is a good thing because it increases public understanding of the court system and allows transparency in one of the important institutions of state.

I accept what is implicit in what the noble Lord, Lord Faulks, said, which is that any movement towards broadcasting of courts has to be done carefully. It has to protect witnesses, jurors, claimants, defendants and members of the public—children in particular—from any problems that may arise from the recording of court proceedings. In particular, one is conscious that being a witness in a criminal or civil trial is an anxiety-inducingin any event and one does not want to make people more anxious by having it filmed or recorded. But in principle we consider that there should be much more openness and broadcasting of what goes on in court.

First, the Act allows the lifting of the prohibition on recording what goes on in court, which is prevented by the Criminal Justice Act 1925. If the ban on recording is lifted, is it assumed that live broadcasting can take place or is it envisaged that all that can occur is a subsequent broadcast? I ask because the prohibiting word is “recording”. I respectfully suggest that the right course is that there should be the possibility of near-live broadcasting, subject to a very minimal delay, of what goes on in court but subject to the issues that I have identified.

Secondly, as the Minister said, two orders have been made under the Act: the Court of Appeal order and the sentencing remarks order. Is there a plan that will lead to maximum openness, assuming the process works, subject to the sorts of protections I have identified? That is, you do not want to film jurors, witnesses and victims. Is there a plan? It feels a bit random. We have had a Court of Appeal order in 2013 or 2014 and now a sentencing remarks order. Can the Minister please tell us what the overall plan is?

Thirdly, I understand that the Court of Appeal order has been considered, by which I mean that some review of it has taken place. Can the Minister tell us what the outcome of that review was? For example, what did the judicial participants in the Court of Appeal process think about it? Secondly, to what extent was it thought that there were changes in behaviour in court? I think I am right, although I may be corrected, that in the Court of Appeal the judges and advocates are now filmed as a matter of course. Do the Court of Appeal or the advocates—I hope that the advocates were consulted as well—think that their behaviour has changed as a result? Does it mean that things take more or less time?

I was very grateful for the very clear explanation of this order by the noble Lord, Lord Faulks. I read it in exactly the way that he read it, which is that it allows for the filming only of the judge himself and nobody else in court is filmed. It is for the judge himself, under Section 32, to decide whether or not a particular set of sentencing remarks will be broadcast. I do not see any time limit in the order but I assume that a timescale is envisaged. I am not asking for a time limit, but can the Minister say what time limit is envisaged?

The Minister indicated that the only people who would be assessing this would be judges and people in the Ministry of Justice. I recognise and accept that none of this is for broadcast, but I strongly urge the Minister that the group of people assessing the process should be much wider, obviously subject to appropriate confidentiality and to not allowing the not-for-broadcast test to be broadcast. We need much more, in all honesty, than simply the judges and the excellent Ministry of Justice officials; there needs to be a much wider group, subject to confidentiality, to look at it.

Finally, I have just come from the Hillsborough inquest. It is the most appalling shame that the conclusions of that inquest were not recorded, for either live or near-to-live broadcast. What are the proposals in relation to inquests? It would have been so good if what the jury concluded could have been readily available—for example, on the 1 pm, 6 pm and 10 pm news. You would not need to film the jury, you would have needed only to film the coroner setting out what the remarks were.

I am very supportive of this order but I am terribly anxious that things are going much too slowly. Although I completely agree about the need for care and thought about this, this is the second order after two and a half years with no apparent plan. Perhaps something a bit more focused is required, but we support this order.

[Lord Faulks]

My Lords, I am very grateful for the noble and learned Lord’s constructive comments and questions about this order and I am grateful, of course, for the Opposition’s support of it.

The overall purpose is, as I indicated, to ensure that the public have a clearer idea of what goes on in courts. The noble and learned Lord is right to say that progress is slow, but there are, I respectfully suggest, reasons to go slowly. Great care, as he acknowledges, has to be shown in how we develop it; care has to be shown for all those people potentially affected, including witnesses, as he said. Children are being excluded from this experiment, or test, altogether; clearly, we would be most concerned that children, in so far as they are allowed into court at all, would potentially be affected by expanding the scope of this order.

Of course, the Court of Appeal has been progressing with its own broadcasting and those who are disposed to find such things interesting can see a live feed of the Supreme Court. There is only a limited take-up, but I do not think there is any suggestion that it has adversely affected the way that the judges or advocates behave. Likewise, the judiciary considers the Court of Appeal experiment to have been successful and it has not noted any change of behaviour. I suspect that what happens is that people forget after a bit that the cameras are there.

Office of Lord Chancellor (Constitution Committee Report)

Debate between Lord Falconer of Thoroton and Lord Faulks

Tuesday 7th July 2015 Lords Chamber

[Lord Faulks]

I am speaking for the present Government.

On the question of whether the Lord Chancellor is adequately advised by lawyers, I say that the quality of the lawyers remains extremely high. I take the point made by the noble and learned Lord, Lord Woolf, with his experience of the old Lord Chancellor’s Department and the quality of the lawyers there, but there is a great deal of continuity within the Ministry of Justice now.

I return to the role of the Lord Chancellor and deal briefly with the point of whether combining the role with another Cabinet position helps strengthen his or her position in government. Experience shows that both can be successfully carried out by the same person. I echo the views of the previous Government: we welcome the committee’s agreement that combining the role of Lord Chancellor with that of Secretary of State for Justice does, indeed, strengthen the office. I also welcome the committee’s view that it is not essential for the Lord Chancellor to have a legal background. The last two Lord Chancellors did not, but I suppose I hope that it does not become a disqualification for office if you happen to be legally qualified. The committee instead focuses on the necessary gravitas and status that the incumbent who undertakes the role must have, which does not require specific legal experience.

It may be useful to the House if I set out the current policy remit of the Lord Chancellor and Secretary of State for Justice, which I think helps illustrate the benefits of combining the two roles. The Lord Chancellor has responsibility for matters relating to the judiciary, courts and tribunals, coroners, civil, family and administrative law, legal aid, legal services and the legal professions, public records and the Crown Dependencies. The Secretary of State for Justice’s policy responsibilities include prisons and probation, criminal law, sentencing policy, human rights, data protection and freedom of information. It is evident that having one person who is responsible for the effective and efficient delivery of that system combining the functions is of great benefit. It helps give him the necessary clout in Cabinet—or, as the noble and learned Lord, Lord Hope, said in evidence before the committee, makes sure that he is not at the,

“far end of the table”.

I touched on the Lord Chancellor’s responsibility for ensuring the proper administration of HM Courts & Tribunals Service. I want to say a little more about this as it is an important example of how upholding judicial independence is critical to the successful delivery of that service. The Lord Chancellor discharges his responsibility for the courts and tribunals in partnership with the Lord Chief Justice and the Senior President of Tribunals. He has a statutory duty to provide the support necessary for the judiciary to perform its functions and to ensure that there is an efficient and effective system to support the business of the courts. This duty is discharged in conjunction with the senior judiciary, as laid out in the HM Courts & Tribunals Service Framework Document of 2014, which reflects the partnership arrangement between the Lord Chancellor, the Lord Chief Justice and the Senior President of Tribunals in relation to the effective governance, financing and operation of HM Courts & Tribunals Service. It is very much a joint venture.

The final point I want to address—and it is a very important point—is the committee’s concern that:

“There is no clear focus within Government for oversight of the constitution”.

[Lord Falconer of Thoroton]

Before the Minister moves on to that, can he identify whether he accepts the central recommendation of the Constitution Committee that the Lord Chancellor has an especial role in protecting the rule of law, or does he, like Mr Grayling, think that the Lord Chancellor has no special role that is any way different from that of the Secretary of State for Health or the Secretary of State for Education?

[Lord Faulks]

The Lord Chancellor’s role and his oath, as the noble and learned Lord said, is defined by the Constitutional Reform Act 2005. Clearly, his role is the same as other Ministers’ but must be larger than theirs. Its precise ambit may be a question of some debate but clearly he would regard, as indeed he said in the Legatum Institute talk, that he has a greater and particularly specific role in relation to the rule of law.

I was dealing with the oversight of the constitution. The committee recommended that, “a senior Cabinet minister”—in its view, most appropriately the Lord Chancellor—should have responsibility,

“for oversight of the constitution as a whole, even if other ministers have responsibility for specific constitutional reforms”.

The Prime Minister, of course, has overall responsibility for the constitution. The Cabinet Office has oversight of constitutional policy and has done since 2010. The Chancellor of the Duchy of Lancaster, Oliver Letwin, oversees co-ordination of the Government’s constitutional reform programme and is supported by two Ministers and officials from the Cabinet Office constitution group. The Chancellor of the Duchy of Lancaster works in close collaboration with the Prime Minister and other relevant Cabinet Ministers, including the Lord Chancellor, the Attorney-General, the Leaders of the House of Commons and the House of Lords, and the Secretaries of State for Scotland, Wales and Northern Ireland. This senior ministerial oversight reflects the importance that the Government attach to their constitutional reform programme.

In answer to the noble and learned Lord, I am not aware of any precise protocol, but it is clear that there is a great concentration within the Cabinet Office, in close collaboration with the other offices.