European Convention on Human Rights

Lord Mackay of Clashfern Excerpts

Monday 18th July 2022 Lords Chamber

[Lord Bellamy (Con)]

We are entirely satisfied that the Government’s policy on asylum seekers is in compliance with the convention. In this context, I do not think that I can add to that answer.

[Lord Mackay of Clashfern (Con)]

My Lords, it is right to look at the draft put forward by the Lord Chancellor, which makes it absolutely plain that the intention of the Government in that document is that we stay in the European Convention on Human Rights. The preciousness of that is absolutely clear, and I feel certain that a Conservative Government—and, I believe, a Labour Government—are unlikely to move away from it.

[Lord Bellamy (Con)]

I respectfully agree, and I am particularly delighted to pay my personal respects to my noble and learned friend Lord Mackay of Clashfern following one of his last interventions in this House.

Judicial Review and Courts Bill

Lord Mackay of Clashfern Excerpts

Committee stage
Thursday 24th February 2022 Lords Chamber

[Lord Marks of Henley-on-Thames (LD)]

My Lords, the amendments in this group seek reviews or consultations in three quite disparate areas. The first, in Amendment 30 tabled by the noble Lord, Lord Ponsonby, concerns the single justice procedure. The second, in Amendment 37 from the noble Baroness, Lady Chakrabarti, concerns a call for an inquiry into the treatment of women and girls in the criminal justice system. The third, in Amendment 54 in the name of the noble Lord, Lord Ponsonby, concerns local justice areas.

First, as to the single justice procedure, there is no reason in principle to oppose Clause 5, which is the related provision in the Bill. It simply extends the procedure to corporations—and it is probably an anomaly that it did not apply to corporations in the first place. Many of the points that I made during consideration of the first group, relating to a review of the new online procedure, also apply in respect of the single justice procedure. It would be sensible for the single justice procedure to be the subject of the same review, consultation and consideration as the new online procedure.

I join the noble Baroness, Lady Chakrabarti, in thanking the noble Lord, Lord Ponsonby, for his helpful account today, and the help that he gives to the House generally as a practising magistrate and with his very important experience in the magistrates’ court. The magistracy is an extremely important part of our criminal justice system. I forget the precise statistic, but magistrates’ court deal with some 96% of all criminal cases. They are a crucial point of disposal.

I accept, as he did, that the single justice procedure has been of considerable use in minor cases generally, but he also pointed to the impersonality of that procedure and the lack of flexibility that it has in dealing with particular cases. It is valuable in minor cases and in cases such as television licence evasion, which I understand is one of the areas for which it is used. It has been particularly helpful with Covid regulations during the pandemic. However, we should not forget that imposing financial penalties remotely—for example, in the case of television licence evasion—can end up with people being severely penalised for failure to pay and even sent to prison. There is also significant evidence that that particular offence and its enforcement affect women disproportionately.

This brings me to the second area in which a review is sought in this group, Amendment 37, tabled by the noble Baroness, Lady Chakrabarti, which seeks a judicial inquiry into the criminal courts’ treatment of and service to women and girls. The noble and learned Lord, Lord Falconer, spoke to it too. In debates on the Police, Crime, Sentencing and Courts Bill, now back in the other place for further consideration of our amendments, I moved an amendment seeking the establishment of a women’s justice board. It had significant and widespread support around the House, and for me it is a matter of great regret that despite having the personal support of the noble Baroness, Lady Chakrabarti, and the noble Lord, Lord Ponsonby, the Labour Party was not prepared to vote for the measure. If the measure had been supported by the Labour Party, we might have succeeded on that Division. That is a major reform for which I will continue to press. I hope that the support of those who supported it across the House in that Bill will continue to be forthcoming in future attempts, because it is one way to have a significant effect on addressing the difficulties of women and girls within the criminal justice system. Meanwhile, I of course support the noble Baroness in her Amendment 37.

Amendment 54 mandates consultation with relevant stakeholders about the abolition of local justice areas before that abolition under Clause 43 can come into effect. I see the merits of abolishing local justice areas. It will remove the boundaries between such areas, which—as the Explanatory Notes suggest—are largely artificial. That ought to enable magistrates’ courts to work on a more unified or at least a more collaborative basis and manage their work more logically. However, I listened with care to the note of caution introduced by the noble and learned Lord, Lord Falconer. If it is intended by the abolition of local justice areas to destroy the local base of the magistracy, that would be a great step backwards. It is very important that magistrates are dispensing, are seen as dispensing, and understood as dispensing, local justice. While I am completely understanding of the proposal to alter the artificial boundaries so that courts can collaborate on wider areas or narrower areas as appropriate, so that the artificiality is removed, it is very important to preserve the local justice principle. I expect that we will hear more from the Minister about the consultations that have already taken place on this issue in response to the amendment, and I look forward to hearing what he has to say. I hope that he will address that point with care.

[Lord Mackay of Clashfern (Con)]

I strongly agree that the magistracy is essentially a local service built up by knowledge of the area in which magistrates are asked to administer justice. It would be an extraordinary development to cut that out, because the knowledge of what is going on in their area is a source of strength to the magistracy in issuing judgments which, as has been pointed out, are a very high proportion of the total number dispensed throughout the country. On the other hand, I can see that sometimes a technical relief from the particularity of the boundary may be important. Perhaps that can be done without losing the principle of the locality of the magistracy.

I support what the noble Baroness, Lady Chakrabarti, said about the help that we are getting in this respect, having here a practising magistrate who knows the difficulties that arise and can be dealt with by personal experience. I also support the idea that we must have some system for noticing what the difficulties of different people are in relation to the courts, particularly women and girls. I imagine that this has to do with the treatment given by the courts, not particularly the question of certain types of crime that may not always be getting the result that we might expect in various situations.

[Lord Wolfson of Tredegar (Con)]

My Lords, the amendments in this group, Amendments 30, 37 and 54, all deal with reviews of the criminal justice system or criminal court procedure. I will take them in turn.

Amendment 30 would require the Secretary of State to commission a review and publish a report on the effectiveness of the single justice procedure. The review would consider the transparency of the procedure and its use in the prosecution of Covid-19 offences. Let me begin by allying myself to the comments of the noble Baroness, Lady Chakrabarti, and thanking the noble Lord, Lord Ponsonby, for his service as a magistrate, and for what that service gives us in these debates: a real, from-the-front-line addition on how things are going. Since that has been raised, I also thank more generally all magistrates. As the noble Lord, Lord Marks, said, they are the backbone of our criminal justice system. During the pandemic, they went above and beyond to keep the wheels of justice turning.

On the substance of the single justice procedure, I should first make it clear that a case dealt with under the single justice procedure is dealt with in the same way as any other case, except that a single magistrate can deal with it and, as we have heard, the hearing need not be in public. The magistrate must comply with the same legislative safeguards as all other proceedings, and the Sentencing Council’s sentencing guidelines apply in the same way. Importantly, as with the previous group, the single justice procedure is entirely optional. Also, all processes are reviewed regularly to ensure that it is easy to navigate and accessible. Following consultation, the single justice procedure notice has recently been revised to make it even clearer for users.

We have also worked closely with the media to ensure that this procedure is accessible and open, because justice in this country is public justice. While the criminal procedure rules require all courts to give certain additional information on individual cases upon request from the media and other interested third parties, courts are currently obliged to give more information on cases prosecuted under the single justice procedure. That would include the prosecution’s statement of facts and the defendant’s statement in mitigation if there was one.

In addition, a list of pending single justice procedure cases is published each day online and is available to the public. The media also receive a more detailed list of these cases so that they can report on them if they so wish. So, actually, the media receive more information about cases dealt with under this procedure than traditional proceedings, where they get the information only if they actually turn up to the hearing. As I am sure the noble Lord, Lord Ponsonby, would confirm, it is now quite rare that local newspapers turn up. So, far from reducing transparency, the online procedure actually increases it, and I am sure that everyone in the Committee would agree that that is a very good thing.

Police, Crime, Sentencing and Courts Bill

Lord Mackay of Clashfern Excerpts

3rd reading
Tuesday 25th January 2022 Lords Chamber

[Lord Mackay of Clashfern (Con)]

My Lords, as I understand the position, the amendment, without qualification, was pressed to and supported in a Division. The normal situation to deal with the kind of question that the noble and learned Lord mentioned would be to modify that amendment by another, but that, for reasons that may be quite understandable, did not happen. Therefore, the amendment that was passed was unqualified and accordingly, strictly speaking, the rule would be as the clerk has said.

However, this House has discretion in these matters. The rules that are laid down are the best we can think of for every circumstance, but not even we can think of all the possible circumstances. Therefore, the clerk is perfectly right in this case, but justice suggests that it would be wise for the House to realise that, in this particular situation, a modification of the original amendment was certainly raised in the debate, although it was not put formally into the procedure. Therefore, to do justice in this sort of case, it would be right for the House as a whole to agree, in this very special circumstance, that this matter should be dealt with.

[Baroness Jones of Moulsecoomb (GP)]

I want to throw my considerable Green weight behind the noble and learned Lord, Lord Falconer. The Members opposite must realise in their hearts that this is unfair. I came into politics to make things fairer and this is not fair. It is unjust, as we have heard. Please let us debate it properly. I would vote for it—anyone can move it to a vote—and I hope it would pass.

Assisted Dying Bill [HL]

Lord Mackay of Clashfern Excerpts

2nd reading
Friday 22nd October 2021 Lords Chamber

[Lord Mackay of Clashfern (Con)]

My Lords, it is not unusual for me to speak on this subject, as you have heard. I have been involved in it for a long time and do not want to bore you by repeating anything. First, assisted suicide is against the law, as a general law in the land. In this Bill, the noble Baroness, Lady Meacher, with great clarity and skill, described the situation with which she wants to deal. It is a situation in which a person has an inevitably progressive condition that cannot be reversed by treatment.

That applies to the disabled, as well as to others, and to people who have it for a long time. Six months has been chosen as the breaking point for this Bill, but I do not understand exactly why that has been chosen, particularly when it is extremely difficult for doctors to tell how long a person will live. We had plenty of evidence about that in the inquiry that I was honoured to chair long ago. It is very difficult: death may come very quickly or be postponed for some time. In the Bill’s description, disabled people are covered, and that is the reason that those who are concerned about it for the disabled have a base.

This Bill is designed to show general compassion, but the other matter I want to mention is people who have a terminal illness which has been diagnosed but will take a long time before their anticipated death. They will have pain, sometimes very severe pain, but they are not included in the Bill. It is difficult to say that that shows compassion.

The other thing I want to mention is that this principle makes it very easy to enlarge the scope of the Bill simply by deleting the “six months”. Since the six months does not appear to be particularly principled, that must be quite easy to do. Therefore, if we were to pass this legislation, we would have to anticipate that it would be quickly followed by an attempt to get rid of the six months. As I said, if it were to happen at all, there is something to be said for allowing it to include people with a progressive illness that takes much longer than six months.

Criminal Justice (Electronic Commerce) (Amendment) (EU Exit) Regulations 2021

Lord Mackay of Clashfern Excerpts

Wednesday 30th June 2021 Grand Committee

[Lord Mackay of Clashfern (Con)]

My Lords, I heartily support the Motion. Information society services that operated from within the EEA were subject only to the law in their place of origin, as the Minister has explained. When we left the EEA, this could no longer apply, and the provisions for implementation of this system inserted into our law could no longer apply. This seems simple to deal with, and this statutory instrument just deletes them from our law. If a society has its origin in a devolved Administration, it is the law there that requires the deletion.

This was originally put forward as a statutory instrument with no need for approval, but the committee raised some questions that seemed to suggest it should be altered. Therefore, we have this before us today with rather a short consideration, I believe.

It has been suggested that a new provision is required to make services established here subject to remote control here, but I cannot see that that is appropriate. While the previous system operated, it did not affect non-EEA countries. This instrument leaves that as it was and puts EEA countries in the same position as those leaving the EEA, which makes our relationship with EEA countries the same as with others. Therefore, all we have to do is leave it alone. I can see there is room to consider harmonising policies on these matters across the world, but this statutory instrument—or statutory instruments generally under this power—are not appropriate for that.

Criminal Justice System: Equal Treatment of Deaths and Injuries

Lord Mackay of Clashfern Excerpts

Thursday 24th June 2021 Lords Chamber

[Lord Wolfson of Tredegar (Con)]

My Lords, first, I acknowledge the gravity of that incident and we should pay our respects to the police officer’s family, remembering the work that police officers do, day in and day out. However, one has to distinguish the road traffic offence from the consequences. In that case, if there were sufficient evidence to prosecute for murder or manslaughter, that prosecution should have been brought. I know that the CPS does bring those charges when there is evidence to support them and sufficient likelihood of a guilty verdict.

[Lord Mackay of Clashfern (Con)]

My Lords, can my noble friend say how you compare offences which are different in their formulation and different in the sentences available—including, for example, disqualification?

Independent Review of Administrative Law Update

Lord Mackay of Clashfern Excerpts

Monday 22nd March 2021 Lords Chamber

[Lord Wolfson of Tredegar (Con)]

My Lords, I am grateful for the comments of the noble and learned Lord, particularly for his support on the two matters he first mentioned. Respectfully, he is certainly right that a number of the suggested procedural reforms would have to go through the Civil Procedure Rule Committee. He made the point that judicial review has evolved over time, and so it has. But, in that context, he may like to see that in the Lord Chancellor’s introduction to the Government’s response, he makes the point in paragraph 6 that an iterative approach to reform is most appropriate. That perhaps chimes with the point which the noble and learned Lord was making about judicial review being a process, and an iterative process at that. Reform will also be iterative.

[Lord Mackay of Clashfern (Con) [V]]

My Lords, I join those who have paid compliment to the panel: its work was very well done. Have the Government considered whether, when a court finds a decision wrong, it should be able to decide itself, or should it have to remit to the nominated decision-maker?

[Lord Wolfson of Tredegar (Con)]

My Lords, that is a very interesting proposal from my noble and learned friend. Generally, of course, judicial review does not substitute the decision of the court for the decision of the decision-maker, but perhaps that is a matter which I can reflect on and discuss with my noble and learned friend as I consider the responses to the consultation generally.

Domestic Abuse Bill

Lord Mackay of Clashfern Excerpts

Committee stage & Committee: 4th sitting (Hansard) & Committee: 4th sitting (Hansard): House of Lords
Wednesday 3rd February 2021 Lords Chamber

[Lord Rosser (Lab) [V]]

My Lords, this amendment would build on the provisions on cross-examination that the Government have introduced into the Bill. In particular, it seeks to extend the support available to reflect the structure of the family court. Clause 63 provides the court with the power to appoint a publicly funded qualified legal representative to act for a party who is prohibited from cross-examining a witness in person. The court has the power to prohibit cross-examination where there has been a conviction or charge for a domestic abuse-related offence as well as in cases where it would diminish the quality of the evidence or cause significant distress to the person being cross-examined, an issue to which I think the Minister referred in the discussion on the previous amendment.

These changes are, of course, very welcome. However, the structure of family proceedings differs significantly from that of criminal proceedings. In criminal proceedings the parties will normally come together only once at trial. During the course of family proceedings, both parties are more likely to be in attendance at court for a number of hearings before the cross-examination process. The Bill as drafted would appear to leave parties without support for potentially a number of hearings and would only provide a legal representative for a relatively small proportion of the proceedings. The Magistrates’ Association supports this amendment, and we thank it for its work on these issues.

As my noble friend Lord Ponsonby of Shulbrede indicated at Second Reading, these factors raise two principal issues: first, whether the advocate is able to their job effectively if they are involved in only a small part of the proceedings, and secondly—crucially—whether a litigant in person can navigate the rest of the court process and what impact that has on cases involving domestic abuse and outcomes for children.

Amendment 121 would provide that in family proceedings where there is evidence of domestic abuse, the court may prevent a party directly or indirectly engaging with the victim during proceedings, not only at cross-examination, if the court deems that any such engagement is causing significant distress to the victim. In those cases, the court must invite the party to arrange for a qualified legal representative or appoint a qualified legal representative to represent them. It also provides that if representation is appointed for one party, which would usually be the perpetrator in this case, the court must consider the need to appoint representation for the other party to ensure fair process. This speaks to the wider issue of the lack of legal support in private law proceedings.

In cases which are by their nature incredibly sensitive and can cause significant distress where there is a history of abuse, the court process is complex and difficult to understand for many. Litigants in person can find it difficult to follow the instructions of the court or to comply with all the elements of a court order. I know that it is the experience of my noble friend Lord Ponsonby of Shulbrede that without the right support in place, people will often be driven simply to give up, lose heart and drop out of the legal process. We believe that appropriate legal assistance should be provided throughout this process. Cross-examination is not, as my noble friend put it, the only “flashpoint” in proceedings.

The amendment speaks to a problem that the Government have already recognised and decided to act upon: the need to prevent inappropriate engagement between parties in court and to provide suitable legal representation where there is evidence of abuse. Amendment 121 would simply structure those provisions which the Government already support to reflect accurately the structure of the family proceedings to which they apply, to which I have already referred.

Finally, I shall not detain the Committee by repeating some of the arguments I have just made on the next group in the name of the noble Lord, Lord Marks, but I welcome the aims of his amendments and look forward to that debate. On this amendment, I look forward, I hope, to a positive reply from the Minister.

[Lord Mackay of Clashfern (Con) [V]]

My Lords, I congratulate the noble Lord, Lord Rosser, on the excellent way in which he has presented the amendment in place of his noble friend Lord Ponsonby. He has been able to use the great experience of his noble friend in family proceedings in illustration of the amendment.

I strongly support the amendment because I feel certain that, while cross-examination is important, contact between the parties in a family proceedings, although much more spread out, is of critical importance. Things such as the arrangements for children to be with one parent or the other are often extremely difficult to work out. It requires personal and direct contact between the parties, because it is next to impossible to accommodate the needs of the parties without it. It is therefore extremely important that this is done with a fair amount of detail to allow representation to be made.

That is, in principle, already part of the government Bill, but the Magistrates’ Association—of which the noble Lord, Lord Ponsonby, is a good example—has great experience of how it should work, and the amendment seeks to work that out in some detail. I warmly support it because it is very well done. As I said on a previous occasion, the fact that the Magistrates’ Association supports it is a powerful reason for us to support it too.

[Baroness Hamwee (LD) [V]]

My Lords, my noble friend Lord Marks will speak to most of the amendments regarding court proceedings, but I am glad to be able to say a word on this one. I acknowledge that the Government recognise the need for measures to support victims of domestic abuse in various proceedings. Like the noble and learned Lord, Lord Mackay, I think the very fact that Amendment 121 was tabled by a practitioner who has already shared with the Committee a lot of extremely useful experience, as he does on all occasions, and from the Magistrates’ Association, whose briefings I have always found very useful, pretty much makes the point. It is certainly very persuasive.

As I read it, the amendment would address what is meant by “engagement” in a particular context. As the noble Lord, Lord Rosser, explained—his explanation was clear—in family cases the proceedings are generally not a single event but comprise a series of hearings. They are quite unlike proceedings in the criminal court or the civil court, where a discrete claim is dealt with. To use a bit of current jargon, I read this as enabling the court to be agile in applying, as it goes along, appropriate measures and making directions as it becomes clear that they are needed.

In an attempt not to oppose the amendment but to develop it, I have been wondering how it would—or maybe will—operate in practice. One assumes that there will be a need to find a lawyer for whatever reason, probably financial, and that the parties will have already considered that. Who will pay the lawyer, and pay enough for them to do a complete job, not just coming in at the last minute but understanding the whole background to the proceedings and taking full instructions? If the lawyer is appointed by the court, to whom is he responsible? Is the person he represents a client for all purposes? I absolutely take the point about the difficulty that litigants in person have, so finding ways to assist can only be to the good. I hope that these proposals can be taken forward.