Social Action, Responsibility and Heroism Bill

Debate between Lord Faulks and Lord Woolf

Monday 15th December 2014 Lords Chamber

[Lord Woolf]

I am grateful to the Minister for giving way. I still, I am afraid, cannot understand whether, where there are two defendants, one who can rely on this Clause 3, and one who cannot rely on it, he is saying there could be a situation where it would be proper for a judge to say that one defendant walks out of court scot-free, even though he caused the accident, and the other is found guilty.

[Lord Faulks]

The answer is yes. There are lots of different circumstances in which two defendants may find themselves sued. They may be sued on the basis that one is much more likely to be liable than the other. The other defendant may be sued because his insurance arrangements may be considered more satisfactory. There will be circumstances in which one defendant is much more likely to be culpable than the other—in which case very often there will be, pursuant to the 1970 civil liability Act, a division of responsibility between those two defendants. A judge will have to perform that process.

By the same token, a particular defendant in a factual scenario, where an accident is caused, might have, on a particular day, been wholly reckless about the cause of the accident insofar as that particular defendant is concerned. Another defendant might have been predominantly or generally extremely careful for the welfare of that individual. I am not saying that that is necessarily a likely scenario, but it is certainly one within the realms of the many possibilities of claims that the noble and learned Lord and I have been involved in, where a judge has to pick his way through a number of different defendants and try to find a fair answer on the facts. My answer to him is that that particular process, difficult though it is, performed by skilful judges, will not be made significantly more difficult by these provisions.

As I explained earlier, the approach that we have taken does not rewrite the law in detail, but it represents a change to the law in that it does not currently oblige a court to consider whether a person took a generally responsible approach to safety during the activity in question. We wish to ensure that the courts take a slightly broader view of the defendants’ conduct in these circumstances, by looking at whether his approach to safety, taking into account all that he did or did not do, was generally a responsible one. I suggest that that would very much tally with what a number of members of the public might think was fair. If a defendant was really predominantly doing all that he or she could reasonably be expected to do to look after the safety of an individual, why should there not be some reflection of that fact in the determination of liability? Why should it be ignored altogether? The court would be obliged to weigh it in the balance—that is all—when considering the ultimate question of whether the defendant met the required standard of care.

Criminal Justice and Courts Bill

Debate between Lord Faulks and Lord Woolf

Tuesday 9th December 2014 Lords Chamber

[Lord Woolf (CB)]

My Lords, it is always important to listen to what is said by the noble Baroness, Lady Campbell of Surbiton. She has an insight into these matters that Members of the House who come from a legal background, as I obviously do, do not have personal experience of. It is very apposite that she should have said what she just said. I hope that the House will heed her plea.

Knowing that the noble Lord, Lord Pannick, would have to go to Moscow, I am bound to say that I had prepared for him not to be here, and therefore had prepared a much longer speech than I am going to give. But I would like to add just one or two things. As I am sure your Lordships understand, this is a very important issue. If noble and learned Lords have any ability to assist and advise the House, then it was clear in the earlier stages of the Bill that this was something they thought was wrong. They gave their reasons, and I played a leading part in that. The reason we did so was that we thought it was going to be bad for justice, for the citizens of this country and for the reputation of this country as a leading adherent of the rule of law. Judicial review is all about the rule of law. Every application that has any prospect of succeeding initially has to prove that something happened which the Lord Chancellor and the judges would regard as being unlawful. So if you are refusing relief in this situation, you are doing it with regard to something which has been illegal, or is in a position where there could be illegality.

The second thing to remember is that the procedure for judicial review is an exceptional procedure, designed initially by the judges, but then enacted in what was the Supreme Court Act and is now the Senior Courts Act 1981, in Section 31, which sets out the position as to the jurisdiction of the courts. That section makes it clear that heavy responsibilities are placed upon the judiciary with regard to its operation. The safeguards are there, because they have a very heavy responsibility of holding the balance. The amendment we are now considering is a small one. It is in relation to the first amendment, which I am addressing. As required by the Government, the judge—the word in question is— “must”. As required by the amendment, the word is “may”. The difference between us is “must” and “may”. As you have already heard, in the House of Commons—and I am going to come back to this—the Lord Chancellor misled the House. I have to say that. I am sure the Minister will accept it. He said to it that each of the amendments—

[Lord Faulks]

I am only interrupting to agree absolutely with what the noble and learned Lord said. The Minister has in fact written to say he was in error. The letter has, I believe, been placed in both Houses of Parliament, but there was a mistake and the noble and learned Lord is quite right to draw attention to that.

[Lord Woolf]

I am grateful to the Minister for making that clear. I was not aware that the Lord Chancellor had done so, and I thought it was very regrettable that he should have failed to do so. It is extremely important that the one Member of the lower House who has a statutory responsibility of a particular nature with regard to the rule of law and the administration of justice should have made that mistake, because he dealt very summarily and quickly with the position which was before this House in some detail. We have heard the relevant passages of what he said.

I recall that on, I think, 5 December—I have the reference to it if it is required—the Minister took care to say that there was a convention that the courts, Parliament and Government each respected each other and therefore did not unnecessarily criticise each other. I was well aware of that convention but I would suggest that it is much wider than that. It is a convention that, in respecting the other arms of government, each of them—I include the judiciary here as an arm of government—will not trespass on the other’s area of territory or a different part of the arm unless there are particular reasons for doing so. One can see why that should be so. In the courts, we are very particular indeed not to trespass on the privileges of this House and the other place—and they should be equally sensitive.

Knowing what had been done by this House, which appeared to me at any rate to be so clearly necessary, I read with great care what was said in the lower House. I must say that I was very concerned that the Lord Chancellor in the lower House had indicated the three reasons that noble Lords were told about by the noble Lord, Lord Beecham, when he read the speech, including one that clearly amounted to a reflection on the judiciary. I have heard many protestations that the Lord Chancellor greatly respects the independence of the judiciary. However, when he talked about its difficult task of administering judicial review, as it does, day in and day out—and the task of presiding over judicial review is allocated to earmarked judges, so we can be sure that the matter will be properly considered—he was concerned that it was never intended to put the courts above the elected Government in taking decisions over the essential interests of this country. That is one of the problems that the Chancellor was concerned about. I would gently suggest to the Lord Chancellor, if he is writing apologies, that that is another matter that certainly calls out for an apology. It is wholly inconsistent with his statutory responsibilities under the Constitutional Reform Act. That is something that, having been said, either persuades the House or does not. However, if the other place was misled as to the background, what is at first sight a very difficult decision to understand is explained. I suggest that, because the matter was not put fairly to the other place, that is another very good reason why the matter should be returned to it.

Criminal Justice and Courts Bill

Debate between Lord Faulks and Lord Woolf

Monday 27th October 2014 Lords Chamber

[Lord Woolf]

I am grateful to the Minister for giving way. Is he suggesting that Clause 79(1) would not as a matter of practice be applied in the case of Part 4?

[Lord Faulks]

No, I am simply saying that it is not exclusively directed at Part 4. It is to do with any provision in the Bill; it is a general provision for implementation. It would include it, but it would include anything else that came within the scope of Clause 79.

I explained in Committee the narrow construction given to such powers. The noble Lord, Lord Pannick, said that this was an extraordinary provision. The noble Lord, Lord Beecham, however, acknowledged that it found its way into other Acts of Parliament—apparently without demur from the Opposition, including the Coroners and Justice Act 2009, which, as the noble Lord will appreciate, was before this Government came to power. The suggestion that it is somehow the Conservatives or this Conservative-led coalition who have form for introducing such provisions is simply not correct. The Legal Aid, Sentencing and Punishment of Offenders Act and the Offender Rehabilitation Act contain powers to make supplementary as well as consequential and incidental provision. There are recent similar examples within the responsibility of other departments. Those cannot be levelled against the Lord Chancellor, who has been demonised in our debates. They include the Pensions Act, the Local Audit and Accountability Act and the Infrastructure Bill currently before Parliament.

Since Committee, we have considered carefully whether it would be sufficient to rely on that part of the power which is undisturbed by the amendment. Of course, the power is quite wide even without the supplementary provision. It is right to acknowledge, as I did in Committee, that there is a degree of overlap between the various concepts used and adjectives deployed. The fact that the existing powers agreed by Parliament included the power to make supplementary provision suggests that the overlap is not complete. For that reason, we think that the right course is not to amend the provision—with the reassurance as to the possible use of the power, which I mentioned. In other words, this will not be construed as giving any Minister the opportunity to make provisions which are not in the Bill—what he might have liked to have been in the Bill in retrospect—but construed very much in the way that such provisions are customarily construed.

Criminal Justice and Courts Bill

Debate between Lord Faulks and Lord Woolf

Monday 20th October 2014 Lords Chamber

[Lord Woolf (CB)]

My Lords, I disclose that I am the chairman of the Prison Reform Trust, which, as the noble Lord, Lord Beecham, has already pointed out, has circulated a paper that expresses concerns which he has adopted, very admirably, in the submissions he has just made to the House. I urge the Minister to think about those submissions very carefully. Whereas I, of all people, would like to think that I am a supporter of any procedure that cuts the costs of the administration of justice, at this stage the matter has not been detailed enough. Perhaps it would be better to find another instrument to which this very late amendment can be attached, but some such machinery to deal with this is urgently required.

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

My Lords, I thank the noble Lord, Lord Beecham, and the noble and learned Lord, Lord Woolf, for their contributions to this short debate. I will take this opportunity to explain to the House in a little more detail the context and reasons for the Government’s amendment, which will enable the Secretary of State to appoint “recall adjudicators”, before going on to explain the nature and purpose of those amendments. I will then turn to the amendment the noble Lords have tabled to Clause 3, and to their Amendment 9A, which seeks to insert a new clause.

When your Lordships last debated the provisions in Part 1, concern was raised about the burden that some of the provisions would place upon the Parole Board, particularly given the increased demand for oral hearings following the Supreme Court judgment in the case of Osborn, Booth and Reilly. At the time I explained what the Parole Board and the Ministry of Justice were doing in response to that demand, and indicated that we were considering whether there may be other options to alleviate the pressure on the board.

I hope that these government amendments demonstrate to the House our commitment to supporting the board and will serve to alleviate some of the concerns that have been expressed. They will allow the board to focus its resources where they are most needed. It is only recently that it has become possible to contemplate amending the legislation in the way that we now propose, and I hope that this answers the criticisms made by the noble Lord, Lord Beecham, of the amendment and its lateness.

In July, a Supreme Court judgment was handed down in the case of Whiston v the Secretary of State for Justice. This dealt with the question of whether an offender who is subject to home detention curfew and is recalled to prison for breaching his licence conditions is entitled, under Article 5.4 of the European Convention on Human Rights, to have his detention reviewed by a court-like body—the Parole Board. The Supreme Court found that there was no such entitlement and that for all determinate sentenced offenders further detention during the licence period was satisfied, in Article 5 terms, by the original sentence imposed by the court. Therefore this does not depend on any party-political interpretation of the European Convention but on the decision of the Supreme Court.

Last week I chaired an all-party meeting in which we discussed these changes—which, of course, I accept have come late in the day. I hope that I was able to explain during the meeting to those noble Lords present the reason behind this change and why it was late, in order to give Peers an opportunity to understand what we were doing. The Whiston case is a significant change to previously established domestic case law on which the current provisions in the Criminal Justice Act 2003 are founded. Under the 2003 Act, determinate sentence recalled prisoners are entitled to have their cases referred to the Parole Board. This was to satisfy their Article 5 rights to a court-like review of their detention.

But the Whiston judgment means that the review of determinate sentence recall cases no longer has to be conducted by the board because Article 5 is not engaged. We are therefore seizing this opportunity to build into the statutory framework a new, flexible way of working which will provide for this category of case to be diverted away from the board. That is what these amendments are designed to do.

Amendment 9 inserts new Section 239A into the Criminal Justice Act 2003. This will create a power that enables the Secretary of State to appoint “recall adjudicators”. It is these adjudicators who will take on the functions relating to the release of recalled determinate sentence prisoners currently performed by the Parole Board. The Secretary of State will be able to appoint the Parole Board as a recall adjudicator to allow the board to continue to review these cases if necessary, but also to appoint other persons.

Much of the detail of how the recall adjudicator model will operate—including exactly who will be appointed and the nature of those appointments—will be the subject of further detailed development. As I indicated during the meeting, and do again in the House, the appointments will be filled by those with significant criminal justice experience. I apologise if at this stage I cannot provide noble Lords with the level of detail for which they might normally wish. I acknowledge, of course, that the as yet unknown detail about the precise operation, impact and cost of the new model is what lies behind the noble Lord’s amendment to insert a sunset or sunrise clause into these provisions. I will return to that when I respond to the amendments.

First, I shall explain to your Lordships the main features of the provisions as well as the safeguards that will make sure the system for reviewing the detention of recalled prisoners will remain fair, robust and efficient and—importantly—that risk assessment and public protection will continue to be of paramount importance in any release discussion. While the review of detention need not be undertaken independently by a court-like body or process, it will have to satisfy the common-law requirements of impartiality and procedural fairness in line with the Osborn judgment. This means that oral hearings will still be required if they are necessary in the interests of fairness to the prisoner in the particular case and it will be necessary to interpret that requirement consistent with the Osborn decision.

Your Lordships have already agreed that Clause 8 should stand part of the Bill. This introduces a new test for the release of determinate sentence recalled prisoners. The test requires consideration to be given to whether the offender needs to be detained for the protection of the public but also whether the offender would be highly likely to breach their licence again if released. Recall adjudicators will be required to apply that test—that is, they will be under a statutory duty to consider both public protection and the risk of further non-compliance in reaching their release decisions.

A consistent and robust process will be followed by recall adjudicators. To ensure that this is the case, these amendments provide a power for the Secretary of State to issue procedural rules. Of course—this is important—there will be an opportunity for further parliamentary scrutiny, as these rules will be made by statutory instrument, subject to the negative procedure.

The Secretary of State will also have the power to appoint a chief recall adjudicator. The chief recall adjudicator, who must also be appointed as a recall adjudicator, will oversee the activities of these adjudicators and bring coherence and co-ordination to their work. To assist in this role, provision is also made for the chief adjudicator to issue guidance. Recall adjudicators will be required to carry out their functions in accordance with that guidance.

The Secretary of State will be responsible for making decisions on appointments and the termination of appointments, although the chief recall adjudicator will be able to make recommendations to the Secretary of State about the termination of appointments.

The other amendments that we have tabled in this group all flow from and are consequential to the provisions in Amendment 9 to allow for the appointment of recall adjudicators.

I hope that your Lordships will agree that these amendments will not only help to alleviate pressure on the Parole Board but will give us the opportunity to look afresh at an alternative model for reviewing the detention of determinate sentence prisoners when they are recalled to custody. In short, if these cases do not need to be dealt with by the board, we believe that they should not be. The recall adjudicator provisions will give us the flexibility that we need to put such a system in place. This is the package of government amendments that I commend to the House.

Before I sit down, I turn to the amendments tabled by the noble Lords, Lord Beecham and Lord Kennedy. The Government cannot support these amendments. Amendment 1 places a statutory duty on the Secretary of State to consult the Parole Board and to lay a report before Parliament about the resources that the board requires before the provisions in Clause 3 are implemented.

The Government are committed to ensuring that the Parole Board is always adequately resourced to fulfil its important responsibilities. The amendments that I have spoken to, which are designed to alleviate pressure on the board and to free up its resources, underline that commitment. I assure your Lordships that any future pressures on the board arising from the implementation of other provisions in the Bill will be discussed with the board so as to ensure that the necessary arrangements and resources are in place. I can confirm to noble Lords that there have been discussions with the Parole Board, the Lord Chief Justice and the senior presiding judge about the appointment of recall adjudicators.

Clause 3 adds a small number of additional terrorist-related offences to Schedule 15B to the 2003 Act, and the impact of this on the board will be minimal. We do not believe that a duty to consult the board or to lay a report before Parliament is appropriate or necessary. With respect, and as I said in Committee, such a duty would not be a practicable approach to these provisions. Changes to the workload of an arm’s-length body are commonplace. There are governance structures in place to ensure that new pressures on the Parole Board are taken account of. As noble Lords will be aware, the Ministry of Justice is accountable to Parliament for the discharge of its responsibilities. Putting such an obligation on the face of the legislation would, I suggest, be an undue burden on Parliament.

That brings me to the other amendment tabled by the noble Lords, which would insert a sunset clause into the recall adjudicator provisions, suspending them two years after the date of commencement. Prior to this, within 18 months of commencement the Secretary of State would be required to lay before Parliament a report on the impact of these provisions. Having done so, the Secretary of State would be able to make regulations for the continuation of the provisions—those regulations to be made by statutory instrument and subject to affirmative resolution of both Houses. In effect, Parliament would have to review the impact and agree to the continuation of the provisions to avoid their suspension after two years.

I understand the concern of noble Lords that the introduction of recall adjudicators is a new and, as yet, untested concept. It is critical that we get this right, and I appreciate the recommendation by the noble Lords for greater scrutiny by this House and the other place. However, I do not believe that it would be either appropriate or helpful to have a sunset provision of this sort. I can assure your Lordships that we will continue to work closely with the board and others on the development of the recall adjudicator model, making sure that it delivers the efficiencies and benefits that we expect while we maintain, as we are obliged to do, a robust and fair process for recalled prisoners.

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[Lord Woolf]

Before the noble Lord sits down, I wonder whether he can help me on one matter. Does he accept that a shortage of resources, either in the Parole Board or within the Prison Service, in providing courses for persons in the category that my noble and learned friend Lord Lloyd has identified has caused an unintended consequence in that—possibly; one cannot say it with certainty—these prisoners have been detained for far longer than they should have been, and that, equally, there is going to be further delay before their cases can be fully considered?

[Lord Faulks]

I accept that there have been certain delays in providing all the courses that might have been provided. Indeed, that has been the subject of quite widespread litigation, when individual prisoners have received compensation. Sometimes the compensation has been a higher figure if the court has thought that it would have made a difference and sometimes a lower figure if the court has thought that it would have made no difference. However, the test remains the same, regardless of cases, as I said a little earlier. The Parole Board has of course had a number of pressures, as I described earlier, not least caused by the Osborn, Booth and Reilly case. As I also indicated, increased resources have been provided financially, and there is a general awareness in the Parole Board—an arm’s-length body but under the Ministry of Justice—of the need to provide hearings as soon as practicable. However, I have responded by pointing out the fact that all these prisoners have had their cases reviewed by the Parole Board, and we believe that the system is working satisfactorily.

Criminal Justice and Courts Bill

Debate between Lord Faulks and Lord Woolf

Wednesday 30th July 2014 Lords Chamber

[Lord Woolf]

Is the Minister saying that the powers the court has now would not have enabled it to obtain information about who was behind the shell company to which he referred and if need be to make an exceptional order for costs against the persons supporting it?

[Lord Faulks]

These clauses will require the court to go through the processes described in them. It is true that a particularly inquisitive court might have been able to find out more than—

[Lord Woolf]

Could an application not have been made by the Crown saying it was seeking orders for costs and asking the court to make the appropriate orders?

[Lord Faulks]

The problem was that there was nobody to enforce an order for costs against, effectively. That was the disadvantage that accrued to the taxpayer. Clause 65, which was welcomed by the senior judiciary, provides for information about financial resources to be provided and for that information to be used. The problem was that that case proceeded and there was no way of recovering the costs when it concluded.

[Lord Faulks]

The court certainly has power to make orders against non-parties in appropriate circumstances under the existing law. It is not normally the case that that is happening. The purpose of these clauses is to provide a statutory framework in which the court can find the information and use it if it thinks appropriate while retaining the discretion.

[Lord Woolf]

I really must press the Minister. I know he will forgive me rising again. If we do not want to increase the costs of the ordinary application for judicial review, is it not very important that where you have a special case, such as the one to which the noble and learned Lord, Lord Mackay, referred in his recent speech and the case we are looking at now with the particular circumstances relating to Richard’s burial, applications arise to deal with the particular case rather than putting matters on the general body of applicants for judicial review who receive assistance?

[Lord Faulks]

In many cases, this will be a fairly straightforward procedure, whereas in the Richard III case it would have been a rather unusual, more searching procedure. I am afraid that I cannot depart from the Government’s position that these clauses will put in statute an important process which has not always been adequately undertaken by judges, and which was welcomed by the senior judiciary, in order, in some circumstances—

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[Lord Faulks]

Quite so, but I thought that the inference was that some full disclosure of all financial circumstances was going to be required of third parties, and that is not what the rules suggest.

We suggest that these clauses are not making a radical change in the existing law. They are not, in fact, removing the capacity of those who should be able to bring claims for judicial review; they are simply placing on the statute book what some of the senior judiciary wanted, which was a degree of transparency to stop those rare cases where the taxpayer is having to pay for judicial reviews in circumstances where the true funders are managing to obscure the position in a way that no one in this Committee would like.

[Lord Woolf]

I am sorry once again to interrupt the Minister in his closing address, but does he agree that it is absolutely essential, if the purpose of these provisions is the limited one that he identified, that those who are preparing proceedings for an application for judicial review, who want to know what they have to do because of the provisions of Clause 65 on funding, need to be told that there will be no requirement in that sort of situation to provide particulars of the resources—to take the example we were given—of all the people in a small village who are making a contribution? Some of them may be wealthy and some may be poor, but someone who is wealthy may have a significant obligation.

[Lord Faulks]

The answer, I think, to the noble and learned Lord’s question is that Clause 65(1)(b) states that the information will be specified in the rules of court. The anxieties expressed in the Committee and by those who have provided briefings and written articles are clearly matters that will be taken into consideration, and we do not want to stifle proper judicial reviews or make people feel anxious about small contributions. These matters will be taken into account. However, for the reasons that have also been outlined in argument, we cannot specify in this statute every single, precise situation.

I hope that I have gone some way to reassure those who have sought—

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[Lord Woolf]

Clause 67 has created a particular type of party, namely a “relevant party”. The relevant party is defined in subsection (8). I have no problem with that definition. However, in his closing remarks the Minister said that if, of course, a person is invited to intervene, as Justice could be invited to intervene, in effect this would not apply. The words are, of course, very specific, because of the presence of the word “must”. I draw attention to the fact that the court could invite people to intervene who are not a relevant party. Would he bear that in mind?

[Lord Faulks]

I shall deal with those interventions in reverse order, I am very grateful for what the noble and learned Lord, Lord Woolf, said. I will bear that in mind and, rather than answer from the Dispatch Box, I will consider it carefully. Similarly, I will answer the noble Baroness, Lady Lister, in writing with details.

As to the remarks of the noble Baroness, Lady Kennedy, I obviously would not comment on the appropriateness of particular interventions in particular cases. However, I am not sure that I would entirely agree with, or that I apprehend, her thrust, which was that litigation belongs to the parties, and there are disputes—whether civil disputes or judicial review, which involves public law—where interventions may be helpful in deciding between the parties. Where I may differ from her is the approach whereby an organisation of which all of us, I suspect, would approve should nevertheless use judicial review as part of a process. There are other processes available, whether it is lobbying Government or informal processes of campaigning, lobbying or taking part in inquiries: that may be a way to do it. Nevertheless, even though these bodies can have valuable contributions in certain cases, there should be some hesitation before simply saying that this is an issue where we might be able to help.

I conclude by saying that I will take into account all the observations that have been made and inviting the noble Lord to withdraw his amendment.

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[Lord Faulks]

As a lawyer, I have a particular regard for precedent. The fact that the word “supplementary” has found its way into other Acts of Parliament is at least some indication that previous Parliaments have approved its inclusion. The fact remains that any provision is worthy of analysis, whether it has been in a previous Act of Parliament or not. None the less, I am sure that the noble Lord would agree that it is important that we give, quite properly, the degree of power necessary to the Secretary of State to implement those parts of the Bill that become law. I can reassure him and the House that such powers are narrowly construed by the courts and are available only for the purposes of implementing what is in the Bill, not what is further to the Bill, not in the Bill or what the Secretary of State might like to have been in the Bill.

Amendment 84 proposes to remove Clause 73(2). This would prevent any provision necessary to give full effect to the Bill being made if it required amendments to any existing legislation, whether primary or secondary. Similarly, with the powers subject to Amendment 83, provisions permitting amendment to primary and secondary legislation for these purposes are commonly found and have been approved, and we are concerned that their absence would hamper the Government’s ability to bring the Bill into force.

Of course I accept that it is right that these provisions should be subject to proper scrutiny. That is why we have provided, in accordance with the expectations of the Delegated Powers and Regulatory Reform Committee, that all provisions made under this clause will be subject to parliamentary scrutiny. Where provisions amend primary legislation, any regulations will be subject to the affirmative procedure. With that reassurance, I hope that I can allay to some extent any residual anxiety that the House may have.

These provisions are not novel and we say that they are necessary to implement the provisions of the Bill properly. During the Recess, among the many other things that I have been invited to reflect on, I will reflect on the precise use of the adjective “supplementary” in this context. At the moment, I do not give any indication of a desire to amend it, but I will of course reflect on it. In the mean time, with the reassurance that I have endeavoured to give the House, I hope that the noble and learned Lord will feel able to withdraw his amendment.

[Lord Woolf]

I am grateful to the Minister for responding with such care and elegance to the speeches that have been made. I am sorry that the noble Lord, Lord Davies, was not present as I am sure that he would have taken great pleasure from hearing how the Minister was comforted by what he said in his speech. I heard that speech and reacted with surprise at the time.

In his response, the noble Lord said that it was of course right for him, as a lawyer, to rely on precedent. I wonder whether the precedent in this context indicates the dangers of a Henry VIII clause of this nature. What happens in practice is that, once you have a precedent, you think that until somebody protests you can go on making better and better precedents to achieve your purpose, meaning that the powers of this House to scrutinise legislation are thwarted—not totally but to a significant degree. It is because of what has happened in the past that Henry VIII clause after Henry VIII clause appears in legislation, so that now it is considered almost a matter of course to put in a provision of this nature, and it is suggested that legislation cannot work without a Henry VIII clause. I respectfully suggest that that is a most unfortunate situation, and I have a great deal of sympathy for the helpful remarks that were made by the noble Lord, Lord Deben, in his very wise comments on this clause.

I suggest that the time the Minister spends contemplating the language of Clause 73 during the coming three months will be very well spent. Bearing that in mind, I beg leave to withdraw the amendment, but I do so while making it clear that I may well come back to the subject on Report.

Criminal Justice and Courts Bill

Debate between Lord Faulks and Lord Woolf

Monday 28th July 2014 Lords Chamber

[Lord Faulks]

I am grateful to the noble Lord, but with very great respect I think that we are going over the same ground again. I hear the argument; I have said that I will consider it, but I want to consider it in a way that does not emasculate Clause 64, which is there effectively to prevent cases in which it would make no difference from proceeding to lengthen expensive litigation. But I acknowledge that there is a potential force in the argument made by the noble and learned Lord, Lord Woolf, and picked up by other noble Lords, including the noble Lord, Lord Davies, about the possible benefit of a declaration, whether it is in the form of a judgment reflecting the point that seeks to be established but does not involve the expense and time of having a full-blown hearing. I do not think that I can take the matter any further at this stage.

In the approach that we suggest to what is essentially a desire to get rid of technical objections, we wish to refer to Lord Denning’s reasoning—and I am glad that he was mentioned earlier as he gets insufficient citation in the courts nowadays. He held that the court,

“should not find a breach of natural justice unless there has been substantial prejudice to the applicant as a result of the mistake or error which has been made”.

That is a reference to a case in 1977—

[Lord Woolf]

Would the Minister be grateful for a copy of De Smith?

[Lord Faulks]

The case is George v Secretary of State for the Environment. I omitted one or two pages of my speech in order not to weary the Committee but I am most grateful for the offer of an autographed copy of De Smith.

I reiterate that, where there is any significant doubt over whether the flaw complained of was highly likely to have made a substantial difference, permission can be granted, and judges will continue to perform their established role. I remind the Committee of a significant judicial discretion which will remain under the clause. Crucially and properly, this discretion will extend to whether it is highly likely that the procedural defect would have resulted in a different outcome for the applicant in any given case and whether any difference would have been substantial.

Amendments 72D and 73E are intended to replace the requirement to refuse to grant permission where it is highly likely that there would have been no substantial difference with an option to refuse permission. It is worth examining that. It postulates the position where the judge says, “I think it is highly likely that it would have made no difference at all, but still I should allow this to progress”. Similarly, Amendments 70, 70A and 71 are intended to replace the requirement to refuse to grant a remedy, including a financial remedy, where this is the case. The Government’s view is that these amendments would significantly weaken the utility of the clause in dealing with minor technicalities in a proportionate manner.

Under Clause 64 as currently drafted, the High Court and the Upper Tribunal will retain significant discretion over the application of this clause. Crucially and properly, this discretion will extend to whether it is highly likely that the procedural defect would have resulted in a different outcome for the applicant in any given case and whether any difference would have been substantial. Indeed, the term “highly likely” will, as I have said, be interpreted by the courts. Where the court comes to the conclusion that it is highly likely that the outcome would not have been substantially different, the Government’s view is that the court should not grant a remedy. I can see no merit in continuing a case where there is no real prospect of a difference in outcome and a remedy such as a quashing order would be futile.

In conclusion, I trust that I have reassured the Committee that the Government absolutely understand the importance of judicial review and do not wish inappropriately to interfere with the exercise of the discretion by the courts, nor substantially to disturb the approach that the courts have taken in this very important area of the law. In fact, I submit to your Lordships that Clause 64 is modest in ambition and beneficial in effect. I hope that, with that reassurance, the noble and learned Lord will withdraw the amendment and I urge the Committee to agree to Clause 64 standing part of the Bill.

--- Later in debate ---

[Lord Faulks]

I am glad to have that intervention from the noble Baroness. In fact, it reminds me that I did not specifically answer a question that she raised in relation to Article 6 of the European Convention on Human Rights. I reassure her and indeed the Committee that the Government’s view is that the reform is compatible with Article 6. As the Committee will appreciate, the enshrined right of access to the court is not absolute. The Government’s view is that this is a proportionate approach to securing the legitimate aim of having judicial reviews based on minor technical defects determined more quickly with fewer resources.

I am unable to respond now on the Bingham centre but I will write to the noble Baroness and the Committee to inform them of the current position.

[Lord Woolf]

My Lords, I am grateful to the Minister for the careful way in which he has sought to reply to the issues raised. I also hope that I am not misinterpreting him when I detect that he is prepared to look again at the provisions in Clause 64 to see whether some of the points that have been made may be of substance.

[Lord Faulks]

I am sorry to interrupt but I do not want to raise expectations inappropriately. I think that the only area where I said that I would look again was in relation to the very valuable point made by a number of noble Lords, including the noble and learned Lord, about the possibility of a declaration at an earlier stage. Beyond that, I am afraid that I did not give any undertaking at all.

[Lord Woolf]

One has at least to be thankful for small mercies, even if, in your view, they do not go nearly far enough. I am certainly not indicating that in due course there will not be a Division in this House on the appropriateness of this clause.

What the noble Lord has not done in his reply is to deal with the question that has been asked very clearly and has been emphasised by the noble Lord, Lord Davies—that is, what are the powers of the courts now? The position as I understand it is that everything that the Government want to achieve through Clause 64 can be achieved by judges now. If in fact it is said that they cannot, why is it not left to the rule committee, which of course the noble Lord knows about? He knows that it consists of an expert body looking at how the law should be changed in order to obtain improvements. The noble Lord, Lord Hart, in his very helpful intervention, pointed out that significant improvements can be made in planning matters.

The noble and learned Lord, Lord Mackay, and the noble Lord, Lord Horam, mentioned the problems that exist in judicial review. I am certainly not suggesting that it would not be preferable if consideration were given to adopting improvements where they can be made. However, I still suggest that the best and only way to bring about real improvement is through the sort of process that, at the behest of the noble and learned Lord, Lord Mackay, I undertook in regard to civil procedure generally, including looking at judicial review. The fact is that you cannot do these things in the piecemeal way that the Government are seeking to do in these clauses. If you do, the result will be that you inhibit judges’ ability to carry forward what they have done so far, not perfectly but to the best of their ability.

Perhaps I may give one more example in relation to declarations which the Minister might want to consider. There are cases of judicial review where a matter comes before the court and it is at that stage or during the course of the proceedings that it is accepted that a particular result should be produced. None the less—and I should add, so as to make Clause 64 relevant, despite the fact that the applicant will receive no benefit—it is still thought by the court that it is in the public interest not only to give a judgment but to grant a declaration. That can now happen.

There are also cases where the court now can be asked to make a future declaration in order to clarify the law. The declaration is a remedy which is emerging to its full extent in this jurisdiction, and there are cases where other steps can be taken that are in the interests of good administration, the interests of the rule of law and the interests of justice. I repeat: it is not that this cannot be done, but this is not the way to improve the system of judicial review.

Criminal Justice and Courts Bill

Debate between Lord Faulks and Lord Woolf

Monday 30th June 2014 Lords Chamber

[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.

Prisons: Education and Training

Debate between Lord Faulks and Lord Woolf

Thursday 3rd April 2014 Lords Chamber

[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.

Legal Aid

Debate between Lord Faulks and Lord Woolf

Tuesday 11th February 2014 Lords Chamber

[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.

Legal Aid, Sentencing and Punishment of Offenders Bill

Debate between Lord Faulks and Lord Woolf

Tuesday 10th January 2012 Lords Chamber

[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.