Social Action, Responsibility and Heroism Bill

Debate between Lord Goldsmith and Lord Woolf

Monday 15th December 2014 Lords Chamber

[Lord Goldsmith (Lab)]

My Lords, I support what has been said by my noble friend Lord Beecham and by the noble Lord, Lord Pannick. As a practising lawyer, the idea of having to bring this into effect and applying it in the context of an actual case fills me with horror. I do not know how one would start to go about it. I do not see the benefit the clause brings and I see grave dangers in its application. I was particularly taken by the comment of my noble friend Lord Beecham that this does not even necessarily apply to cases of personal injury or injury of that sort—it can apply to economic loss and to many other sorts of cases. I do not see how this sort of drafting can conceivably be appropriate for such cases.

[Lord Woolf (CB)]

Will the Minister, when he comes to reply, assist me? I do not see how this clause will apply if there are two defendants, one of whom has shown a generally responsible approach towards protecting the safety or other interests of others and the other who has not exercised that approach. It seems to me to be very worrying from that point of view. I always understood that it is not your general behaviour that the court has to look at in order to find whether you are negligent but your behaviour on the particular occasion when you are said to have committed a tort. If one is going to look at the person’s general behaviour in deciding actions for tort, these are going to take a lot longer to resolve than they have hitherto.

Civil Legal Aid (Merits Criteria) Regulations 2012

Debate between Lord Goldsmith and Lord Woolf

Monday 3rd December 2012 Lords Chamber

[Lord Woolf]

My Lords, I been trying to limber up, and I hope that I am now able to follow what has been said by my noble friend Lord Pannick and my noble and learned friend Lord Mackay of Clashfern. I agree with every word that they said with regard to the amendment to the Civil Legal Aid (Merits Criteria) Regulations, which are the subject of the regret Motion.

In order to understand the context, it is necessary to know that judicial review is, of course, subject to principles which have been judge-made. Judicial review, in the form that it is now, is a judicial invention of which we are extremely proud. We are proud of it because the object of the exercise is to ensure, in particular in relation to public law proceedings, that the appropriate procedure is adopted, having regard to the issues raised.

At one time, it was thought—again, by decision of the House of Lords in the well known case of O’Reilly v Mackman, that it was always necessary to use judicial review in public law proceedings. It was then found in practice that that led to satellite litigation over whether the right procedure had been used or the wrong procedure. The courts sought to produce watertight compartments. Fortunately, that was only a temporary stage in the development of judicial review. The next step was to adopt a much more sensible and realistic approach, which involved proceedings being dealt with in the most sensible and reasonable way. Although the phrase that judicial review should be used only where there was no alternative remedy was retained as a simple method to identify one of the principles, the law had developed beyond that. It was made clear by authority after authority that that was subject to the requirement that it should always be reasonable to adopt the procedure which was proposed: judicial review.

Regulation 53(b) contains the statement that is in accord with the general principle of exhausting alternative procedures, but does not refer to the fact that that is not a rigid limitation, but reflects the nature of the procedure, which requires the court to adopt a reasonable course in considering the matter. As has been pointed out by both my noble and learned friend, Lord Mackay, and my noble friend Lord Pannick, that approach of the courts is almost impossible to adopt as a matter of interpretation because of the language of Regulation 39(d). An additional reason to those which have been given for accepting my noble friend Lord Pannick’s Motion and amending Regulation 53(b) is that if that is not done, the procedures in the courts and the procedure for granting legal aid will be out of sync; they will be in conflict. That cannot be a sensible position. Litigants will be forced not to do the reasonable thing, which is what the Civil Procedure Rules require, because they will not have legal aid if they do that, but to adopt an unreasonable course and bring proceedings by judicial review and then get legal aid. That cannot be a sensible course.

I hope the Minister, having heard the argument before the House, will accept the invitation which has been made to consider the matter again. I would be very happy to adopt the amendment suggested by the noble and learned Lord, Lord Mackay, but would, perhaps, suggest that if it is thought preferable to amend Regulation 53(b), what was intended, I believe—or what, at any rate, it should state—could be achieved by inserting into paragraph (b), “the individual exhausted all administrative appeals and other alternative procedures which it would be reasonable for him to adopt to challenge the act, omission or other matter before bringing a public law claim”.

I should have said that my noble and learned friend Lady Butler-Sloss intended to speak and asked me to indicate that she supports the arguments advanced by the noble Lord, Lord Pannick, and those which I have just advanced.

[Lord Goldsmith]

I want briefly to support both amendments. So far as the amendment moved by the noble Lord, Lord Pannick, is concerned, it is not necessary to say very much after a former Lord Chancellor and a former Lord Chief Justice have both criticised the order as it stands because of the way it operates in different ways. I can summarise my view in relation to it very briefly. This order already recognises that there may be “reasonable” and “not reasonable” alternative procedures. It does that in Regulation 39. However, if one then reads Regulation 53(b), it is very clear that the word “all” must be read as meaning “all”. Therefore, if one expands the meaning, what is being said as it stands is that there will not be legal aid unless the individual has exhausted all reasonable and unreasonable alternative procedures. As soon as one poses the question that way, it becomes absolutely plain that it must be wrong to impose that obligation. I do not think it is necessary to say anything more than that to summarise why the noble Lord, Lord Pannick, and the noble and learned Lords, Lord Mackay of Clashfern and Lord Woolf, are absolutely right.

Let me turn to my reasons for supporting my noble friend Lord Bach in his amendment. I recall very well the clear and powerful way in which the noble Baroness, Lady Doocey, moved the amendments which led to this particular issue. They were strong and supported by a majority of this House. I have read the debate—though I did not listen, as my noble friend Lord Bach did, to the debate itself—which took place in the other place. It seems clear to me that what was being said was that a way would be found to enable legal aid to be provided in the first tier where there were points of law. The concern expressed by the Government was that they did not want that to be a point of law just because it was so stated by the claimant or the claimant’s lawyer. That is clear in column 266. However, the Government have not ended up with that at all. They have ended up with something which appears—if my understanding of the way the procedure works is right, and it follows that of my noble friend Lord Bach—to mean that legal aid does not come into the picture until after the event. That may be appropriate in certain other circumstances, but not here.

What one needs in these circumstances is the ability to identify a point of law which will be relevant and necessary for a particular applicant—particularly a claimant of the sort to which the noble Baroness, Lady Doocey, referred—to be able to put that point of law before the tribunal. I fully endorse her point that most claimants do not recognise a point of law when they see it. I suppose that as a practising and paid lawyer, I am quite pleased, on the whole, that that is the case, although I do not actually practise in this area. The point is this, however, and I ask the Minister to answer this question: why could the way the Government limit this not be by the chairman of the tribunal identifying the point and certifying it at the outset rather than waiting until after the event?

There is one point which connects these two amendments, and it is what drives me to want to persuade the House to support them. In LASPO, we were faced with changes which, for many of us, were very difficult to accept. The Government put them forward on the basis of economic necessity. However, there was a strong belief that there were cases where justice required that there should still be some opportunity for legal advice to be taken and used. In these particular cases—public law and cases involving claimants with disabilities, for example—the Government are failing to give effect even to that limited, modest exception that they were prepared to allow. I very much hope that the Government will think again in the light of this debate.

Crime and Courts Bill [HL]

Debate between Lord Goldsmith and Lord Woolf

Tuesday 30th October 2012 Lords Chamber

[Lord Goldsmith]

The noble Lord may be right about that. I am asking the Minister a question about the thinking. One has to recognise that there are cases where the prosecution cannot actually prove the case, or it would be enormously expensive to do so, with uncertain prospects. I can see that there may be circumstances where getting a regime that for example secures compliance for the future may be worth while. However, that is only my speculation as to why “may” is there rather than “must”, which I would have expected based on the conditional cautions.

Paragraph 5(3)(e) talks about the implementation of a “compliance programme” and I would like the noble Lord to say something about what sort of compliance programmes the Government have in mind, and whether they would include, for example, the putting in place of monitors, and whether that is something that can be sufficiently dealt with by the words here or whether it needs some specific language. As regards paragraph 6 of the code on DPAs, is it intended, as my noble friend Lord Beecham asked, for the code to be placed before Parliament—as is the code for the crown prosecutors, if my recollection serves me right? I can see that Parliament would have an interest in that.

Paragraphs 7 and 8 would require the prosecutor to apply at different stages for declarations in certain terms that entering into a DPA is likely to be,

“ in the interests of justice”—

and that the proposed terms of the DPA—

“are fair and reasonable and proportionate”.

Is it necessary to ask a court to do that? Plainly, the court must be asked to approve the solution. However, I am not sure whether one should also ask the court to make declarations as to these matters. I would like to hear from the Minister as to the thinking behind that. As I understand it, under paragraph 8, the final hearing must be in public, whereas the preliminary application would be in private. I would be grateful for confirmation as to that.

Paragraph 11 deals with discontinuance of the DPA. I am probably missing it but I looked for a clear statement that if there is a finding of non-compliance by the court, that is likely to result in criminal proceedings being instituted. Finally, I, too, would welcome hearing what the proposals are in relation to addition to this schedule and the procedure that will be adopted.

I apologise for that quite long list. This is an important provision. It is a bit difficult to see how we are going to deal with it in a second Committee stage. I am looking forward with great interest to seeing whether the Minister is actually moving the whole of the schedule now so it goes into the Bill and we then apply to amend it, but I accept his assurances that if that is what happens, we will be able to apply to amend it hereafter.

[Lord Woolf]

My Lords, I think that this is a very positive step and could be very valuable in the administration of justice. We should be aware that in the States there has been a risk of unattractive practices developing in this field, but as long as we have the appropriate code and safeguards, that should be able to be overcome.

I listened with care to the comments made by the noble Lord, Lord Marks of Henley-on-Thames, on limiting this to corporate bodies and not extending it to individuals. I suggest that there is substance in his concern, which the noble and learned Lord, Lord Goldsmith, feels may have force. The danger of not allowing individuals also to be dealt with is not the risk of them getting away with it, but of preventing an agreement being reached when it should be reached and when the very extensive powers indicated in paragraph 5(3) would be of great benefit to the public. I draw particular attention to compensating victims, donating money to charity and disgorging any profits made by P. The reality is that behind every company there are individuals. If the individuals are not going to be covered by the agreements, the agreements will be very much less attractive in practice to the corporate sector than they would if individuals could be included. Perhaps we should look at the question of whether it would not be better to enable the matter to be dealt with once and for all, for both officers of a company and the company itself.