HMP Liverpool
Lord Marks of Henley-on-Thames Excerpts(6 years, 11 months ago)
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Lord Keen of Elie
My Lords, where the courts impose a custodial sentence, the punishment is deprivation of liberty. But where someone is kept in custody, the conditions should be decent, safe and secure. We accept that as a Government.
Lord Marks of Henley-on-Thames (LD)
The MoJ may say that it does not comment on leaked reports and the Minister has repeated that, but there is no doubting the authenticity or content of this one. The prison was the worst that inspectors have seen, with prisoners spending 22 hours a day in filthy, vermin-infested cells with exposed electrical wiring and blocked and leaking lavatories. Within weeks of inspection, two inmates killed themselves. Yes, the governor has been sacked, but that is not enough. Will the MoJ please now act urgently to establish a crisis task force to work with the inspectorate’s recommendations, there and elsewhere, to turn around the dreadful conditions in our failing prisons?
Lord Keen of Elie
My Lords, we have replaced not only the governor but the deputy governor and the head of healthcare at the prison itself. We intend to establish a new unit in the Prison Service to enhance our response to the inspector’s recommendations, which will involve monitoring and auditing progress on the recommendations. This will commence in January 2018. In addition, on 30 November we announced the introduction of an urgent notification process. Unfortunately, the report took place in September and therefore did not trigger that notification process. Under that process, the inspector can go directly to the Secretary of State for Justice in cases where urgent reform is required, and the Secretary of State will undertake to respond publicly within 28 days of such notification.
Bach Commission: The Right to Justice
Lord Marks of Henley-on-Thames Excerpts(6 years, 11 months ago)
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Lord Marks of Henley-on-Thames (LD)
My Lords, I join other noble Lords in congratulating the noble Lord, Lord Bach, on securing this debate, on the initiative he took to secure the appointment of his commission, on the thorough work that he and the commission undertook and on the end result, which is the report that has commanded such widespread support in this debate.
From these Benches, I endorse the central conclusions: first, the time has now come, after years of decline in legal aid and the failure of successive Governments to support it, to have a new legally enforceable right to justice which involves a right to reasonable legal assistance without unaffordable costs; and, secondly, there should be a justice commission tasked with advising on monitoring and helping to ensure that the right to justice is delivered in practice. We see the advice role of a justice commission as particularly important. I agree, of course, with the point made by the noble Lord, Lord Faulks, and echoed by the noble and learned Lord, Lord Thomas, that ultimately there is a political decision to be made about the overall budget for legal aid and that it is a matter, in the final analysis, for Parliament. Nevertheless, I completely agree with the observation of the noble and learned Lord, Lord Woolf, that there is a very important role for a justice commission in keeping the working of the legal aid system under continuous review.
The principles behind the Legal Aid and Advice Act 1949 are well known. It was introduced as an important part of the welfare state, constructed on the basis that all citizens should have access to justice; that rights in law were of value only if they were matched by remedies that could be accessed and that defences in law were of value only if they could be effectively granted; and that those ends could be achieved only if those who could not afford legal advice and representation were able to secure it through public funds.
Access to justice is also a public benefit. It enables our law to develop, enables citizens to have confidence that the law will be enforced and has the effect of enabling the law to be enforced in practice. The UNISON case was about employment tribunal fees. The introduction of very high fees had led to a 75% reduction in the number of employment tribunal cases started. That, in turn, led to employers feeling more confident in denying their employees the rights to which they were entitled. Similarly, the imposition of very high court fees is deterring case starts where creditors are nervous about pursuing debts in the courts because of the level of up-front fees involved, which encourages debtors not to meet their obligations. It is also clear, I suggest, that making citizens’ ability to resort to law dependent on the capacity to pay for their lawyers also permits others to ignore their legal obligations.
Many noble Lords have mentioned the UNISON case and the judgment of the Supreme Court. As it has not been quoted before in today’s debate, I hope that I will be forgiven for quoting from the eloquent and timeless statement of the principles underpinning access to justice, in paragraphs 66 and 68 of Lord Reed’s judgment. He said, in paragraph 66:
“The constitutional right of access to the courts is inherent in the rule of law. The importance of the rule of law is not always understood. Indications of a lack of understanding include the assumption that the administration of justice is merely a public service like any other, that courts and tribunals are providers of services to the ‘users’ who appear before them, and that the provision of those services is of value only to the users themselves and to those who are remunerated for their participation in the proceedings”.
Paragraph 68 states:
“At the heart of the concept of the rule of law is the idea that society is governed by law. Parliament exists primarily in order to make laws for society in this country. Democratic procedures exist primarily in order to ensure that the Parliament which makes those laws includes Members of Parliament who are chosen by the people of this country and are accountable to them. Courts exist in order to ensure that the laws made by Parliament, and the common law created by the courts themselves, are applied and enforced. That role includes ensuring that the executive branch of government carries out its functions in accordance with the law. In order for the courts to perform that role, people must in principle have unimpeded access to them. Without such access, laws are liable to become a dead letter, the work done by Parliament may be rendered nugatory, and the democratic election of Members of Parliament may become a meaningless charade. That is why the courts do not merely provide a public service like any other”.
The background to this debate is, of course, the LASPO Act, which severely restricted the scope of legal aid, failed to honour the principles on which legal aid had been conceived, and undoubtedly caused much injustice. The coalition Government were led by the need to control the public purse but it is now quite clear that they underestimated the effects that the Act would have on access to justice and the extent of the costs that would be saved as they estimated a sum of £450 million when, in fact, the reduction in costs has been £950 million. Happily, the Act contained provision for review and permitted areas of law to be brought back into scope. The review is now taking place, although later than we hoped. It is too early to speculate on what its outcomes might be. I regard it as a shame that the review is being conducted as an internal review within the Ministry of Justice rather than by an independent reviewing body, which might have inspired more confidence. We on these Benches recognise, as we did in the coalition Government, that there can be no open chequebook, that there have to be limits to the availability of legal aid, and that expenditure on legal aid has to be subject to some controls.
However, the fundamental issue that has exercised many speakers today is that of scope. I suggest that if there is to be a justice commission, it should be charged with keeping the scope of legal aid under review. Noble Lords have mentioned social welfare, debt, housing, family law, in particular law relating to children, and domestic violence, where the Government have made some limited reforms on the evidential requirements. However, I suggest that they ought to consider the recommendations of many that solicitors themselves ought to be able to certify the eligibility of their clients for legal aid. The financial eligibility rules need review as to both capital and disposable income. The present rules appear to proceed on the basis that people’s litigation is the only call on their finances apart from their immediate needs. My noble friend Lord Dholakia referred to the difficulties facing prisoners in securing legal aid. I also suggest that exceptional case funding, where the take-up has been extremely low—it has improved slightly, but it is not nearly good enough—is another area where solicitor certification may have a role. We place too much reliance on solicitors and barristers accepting pro bono work, which introduces an unacceptable level of arbitrary selection and evades, frankly, a responsibility of government.
The noble and learned Lord, Lord Goldsmith, and the noble Lord, Lord Howarth, made points about the effect of the cuts on the voluntary sector and on smaller providers—law centres and, in the case of the noble Lord, Lord Howarth, the NCLS.
The noble and learned Lord, Lord Judge, made an important and significant speech on the effect of more litigants in person: delays, points missed, judges being faced with the difficulty of getting to the heart of cases quickly, and the general effect on litigation of cases taking longer. Those points were developed by the noble Lord, Lord Wigley, and the noble Lord, Lord Trevethin and Oaksey.
We heard from the noble and learned Lord, Lord Goldsmith, and the noble Lord, Lord Howarth, of the advice deserts. I also mention the point that of course one provider in a town or area is not enough in the case of a contentious piece of work, which requires lawyers for both sides.
The point was made that money spent on legal aid saves money spent elsewhere. I sometimes despair at the inability of the Treasury to understand spend to save across departments. I hope that the Ministry of Justice will start to pioneer saving across departments.
I fully endorse the points made about early assistance, more access to advice online, and the reference to the commission of the noble Lord, Lord Low. I am not entirely with the point made by the noble and learned Lord, Lord Phillips of Worth Matravers, on the inquisitorial system. I accept that much more inquisitorial justice in simpler cases is important, but to develop the particularly attractive analogy of the noble and learned Lord, Lord Woolf, about the bicycles and the Rolls-Royce, we need to preserve the Rolls-Royce even though we need a great many more bicycles.
We have had a powerful debate. However, the central issue is not only access to justice but the interdependent issues of the rule of law and the quality of our justice system.
Criminal Justice: Interpretation and Translation Services
Lord Marks of Henley-on-Thames Excerpts(7 years ago)
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Lord Keen of Elie
I agree with both the propositions advanced by my noble friend. We have no difficulty at present with the provision of interpretation services in respect of these matters.
Lord Marks of Henley-on-Thames (LD)
My Lords, this month there have been at least six reported instances of cases being adjourned for lack of an interpreter, and there may be more. This is part of a continuing pattern which disrupts court business and wastes resources. Does the MoJ have any new proposals to ensure that needs for interpreters are identified and arrangements made for their attendance earlier and more efficiently?
Lord Keen of Elie
We have no proposals to alter the present system, which works effectively. I point out that there are around 500 to 550 bookings for interpreters each day, so the number he refers to—six—is a very small proportion of the overall interpretation service.
Civil Procedure (Amendment) Rules 2017
Lord Marks of Henley-on-Thames Excerpts(7 years, 2 months ago)
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Lord Marks of Henley-on-Thames
That this House regrets that the Civil Procedure (Amendment) Rules 2017 have been laid with insufficient regard to the overwhelmingly negative response to the proposed Rules during the consultation and to the lack of evidence that significant numbers of unmeritorious environmental claims are currently brought; that they may escalate claimants’ legal costs and act against the intention of the Aarhus Convention that the cost of environmental litigation should not be prohibitive; and that they are likely to have the effect of deterring claimants from bringing meritorious environmental cases (SI 2017/95 (L. 1)).
Relevant document: 25th Report from the Secondary Legislation Scrutiny Committee, Session 2016–17
Lord Marks of Henley-on-Thames (LD)
My Lords, this regret Motion raises three important matters of principle: first, the accountability of government and the rule of law; secondly, access to justice for the public and cost protection in environmental cases; and, thirdly, compliance by the United Kingdom with its international obligations.
Environmental cases are frequently brought by individual citizens and concerned organisations to challenge the executive action of government, national or local, which threatens the environment in which we all live and on which we all depend. Where government acts unlawfully, judicial review exists to enable such claimants to hold government to account. These cases are often complex and expensive. As a party to the Aarhus convention, entered into in 1998 under the auspices of the United Nations Economic Commission for Europe and ratified by the United Kingdom in 2005, enshrined in EU law, this country committed to guarantee in environmental cases to provide,
“adequate and effective remedies, including injunctive relief as appropriate, and be fair, equitable, timely and not prohibitively expensive”.
In April 2013, finally and after much procrastination and an adverse decision of the Court of Justice of the European Union in a case called Edwards, the Government introduced rules to implement the convention requirement that costs should not be prohibitively expensive. They did so by establishing an environmental costs protection regime, which, among other things, limited the costs payable by claimants to defendants in environmental judicial review cases. Your Lordships may remember that, in the Criminal Justice and Courts Act 2015, although this House successfully secured amendments limiting the damage, the Government legislated to impose a number of harsh costs provisions on judicial review, but in that Act costs protection arrangements for Aarhus convention cases escaped attack. However, this February Liz Truss, then Lord Chancellor, laid before Parliament the Civil Procedure (Amendment) Rules 2017, to which this regret Motion is directed. I first tabled this Motion in March, but the sudden general election was called before it could be heard.
My first objection to the new rules is to the requirement that a claimant seeking costs protection must disclose,
“a schedule of the claimaint’s financial resources”.
That schedule must also disclose “any financial support” from others helping to fund the case. This requirement, I suggest, is invidious, offends against privacy and is likely—indeed, calculated—to deter potential claimants and their supporters. Supporters will be put off because they risk being ordered to pay costs. The European Commission, in a letter written in March, wrote that,
“a requirement for litigants to provide information of their own personal means is also likely to result in a chilling effect with many individuals not wanting to make their personal finances publicly known”.
That must be right.
The costs limits are £5,000 for individual claimants or £10,000 for businesses or organisations. My second objection to the changes is that the new rules provide that multiple claimants will each be liable for a costs order in those sums. Before these changes, the general practice was that the overall cap would apply even if there were several claimants, but that was not invariable. The convention Compliance Committee considered this change and has said that it could see no basis for this amendment, which, it said,
“removes an important possibility for members of the public to defray the costs of proceedings by sharing the cost burden with other concerned members of the public”.
It said that it,
“substantially increases the likelihood of extensive satellite litigation to determine the costs cap per claimant, further increasing uncertainty”.
However, the third and most important and powerful objection is that the new rules have driven a coach and horses through the whole principle of costs protection in environmental cases. That is because they provide that, at any stage of the case, the court may vary or remove altogether the limits on the maximum costs liability of any party in an Aarhus convention claim. It is true that the rule pays lip-service to compliance with the convention by limiting the power to cases where removing protection would not make the costs of the proceedings prohibitively expensive. The rules define when proceedings are to be considered prohibitively expensive, which they may be if they,
“exceed the financial resources of the claimant; or … are objectively unreasonable”—
applying tests that roughly reflect those set out in the Edwards case, but which are extremely difficult to fathom. Any financial support of the claim by others must also be taken into account. I suggest that the overall effect is that any claimant may feel at risk unless his or her entire capital would be consumed by an adverse costs order. The reality is that costs protection which can be removed half way through a case is no costs protection at all. These rules undermine government accountability, diminish the rule of law and reduce access to justice in environmental cases for all but the very wealthy.
When the changes were first proposed, they were put out to consultation. The response was overwhelmingly negative. The Secondary Legislation Scrutiny Committee of your Lordships’ House produced a report that can only be described as scathing on the proposed changes. On the consultation, it said:
“The analysis in the EM”—
the Explanatory Memorandum—
“simply states that the consultation exercise received 289 responses. It does not explain, as it should, that for most of the questions the number supporting the Government’s proposal was less than ten: the vast majority of the responses received were against the proposed changes”.
The committee further noted the Government’s policy aim of,
“discouraging unmeritorious claims which cause unreasonable costs and delays to development projects”,
but the committee found no evidence to support the Government’s position. It also concluded that the Ministry of Justice had not addressed concerns and that,
“as a result of the increased uncertainty introduced by these changes, people with a genuine complaint will be discouraged from pursuing it in the courts”.
These rules inevitably deter legitimate challenges to government decisions. To take one example of their chilling effect, the Liverpool Green Party recently wished to challenge permission for a car park in an air quality management area granted by the council without its first undertaking an air quality assessment. The party was advised that it had a strong claim for judicial review, and it wrote a letter of claim. In its response, however, the council did not address the substance of the complaint but wrote that,
“it is noted that the court now has discretion … to vary the limits on maximum costs liability for Aarhus Claims and the Council will therefore require confirmation of the financial resources of your client in the event that it seeks a protective costs order”.
In the face of that letter, the party was unable to find an individual prepared to act as claimant, so the case was never brought.
I said at the outset that this Motion was about the rule of law. If the House passes this regret Motion, it will give the Lord Chancellor, who is widely held in high regard, an opportunity to show that he understands—better than his predecessor—the importance of government accountability, access to justice, the rule of law and of complying with our international obligations, in this case under the Aarhus convention. If he understands those things, he will withdraw these rules. I beg to move.
Lord Brown of Eaton-under-Heywood (CB)
My Lords, I do not usually find myself on the opposite side of the debate from the noble Lord, Lord Marks of Henley-on-Thames, but here I am. I make just two comparatively brief points—first, that the original 2013 rules to which he referred, which the 2017 rules that we are considering today have replaced, were drawn up before the CJEU gave the judgment in the Edwards case to which the noble Lord referred. That case was originally referred to the CJEU in 2011 by the Supreme Court, in which I was one of the five sitting, under the presidency of my noble and learned friend Lord Hope of Craighead.
The original 2013 regime provided simply for fixed-cost caps for claimants and defendants. The noble Lord mentioned that the caps are £5,000 and £10,000 respectively, depending on whether it is one or more claimant. It costs £35,000 for defendants in certain environmental law challenges—judicial reviews—with no account being taken under those rules of the particular claimant’s financial position, whether they are a millionaire or a pauper, or of the strength of the challenge that they would bring.
The new rules were introduced after what seems to me an impeccable consultation process. It is true that, perhaps not unusually in this sort of situation, the great majority of those responding were unenthusiastic, to put it no higher, about certain aspects of the proposed changes, certain of which were changed following consultation. But the new rules take full account of the several factors set out by the CJEU in the Edwards case as being relevant to the proper approach to the Aarhus convention in this respect. It is true that the new approach is more complex and allows, as the old regime did not, for a variation of those default costs limits—variations, I should emphasise, in either direction, possibly in favour of a claimant, as access to justice might be thought to require, during and not merely at the outset of the legal challenge.
The measure, therefore, could be said to illustrate the age-old problem in the law of balancing the respective merits of certainty and flexibility—there of course being in all cases pros and cons of each. I, for my part, do not accept that meritorious claimants are likely to be deterred and, certainly, I do not regard these new rules as manifestly contrary to the rule of law, or being unlawful and the rest.
Lord Marks of Henley-on-Thames
My Lords, I should perhaps make it clear that I deliberately refrained from referring to that case because it is sub judice, a judgment not having been given. So I have not referred to it and have not dealt with it. I take no issue with the noble and learned Lord so doing, because this is a case about delegated legislation but, nevertheless, I did not do so.
Lord Brown of Eaton-under-Heywood
In so far as the sub judice rule would apply to a debate of this character, I respectfully do not for a moment accept that I am breaching it. I am suggesting that it is highly relevant to the present Motion to Regret, a Motion which, as the noble Lord said, was initially tabled in March and, therefore, before those proceedings. In so far as, for example, it is now said that we are in flagrant breach of the rule of law and all the rest of it, those issues fall to be decided properly in the context of full argument in those proceedings and not to be well-nigh pre-empted by a Motion to Regret today. For my part, I would not support a Motion to Regret without the benefit of the High Court’s judgment on the legal issues arising.
Lord Keen of Elie
I do not accept that. Quite apart from anything else, I again make the point that some of these matters have already been submitted in argument to the High Court. It has heard those arguments and will deliver judgment upon these points. I am quite clear in my own mind that the cap has a default position; it may be varied in light of the schedule of means, but once it is fixed there have to be identifiable and fixed circumstances, such that the claimant misled the court in the first place, before it will be reviewed on an application by the defendant. It is very clear, and the grounds upon which that can be done are patently very narrow.
Lord Marks of Henley-on-Thames
Perhaps the Minister will explain where those grounds are rigidly defined because they are nowhere in the rules, as I read them. The statement of financial resources has to be provided with the original application. It is not a question of there being a default cap which may then be varied on the basis of the statement of means. Rule 42 is absolutely clear that at the outset the statement of financial resources has to be provided.
Lord Keen of Elie
On the second point, I do not demur. The point is that there is a default position but, in the light of the schedule of means that is produced at the outset, that may be varied down or up. I have no difficulty with that whatever. As to the first point that the noble Lord alluded to, I commend to him a little patience because the High Court is about to opine on these matters, having heard argument. He will be familiar with the pleading that the NGOs submitted in their judicial review and with the notes of argument that were submitted on behalf of the claimants and on behalf of the defendants in that matter. They focus on the very issue of the limited circumstances in which any variation can take place at a later date. I have referred to two possibilities. They are the only two possibilities of which I am aware, and I put that into Hansard. If there were a third or fourth, I would have mentioned it.
The Government understand that, following the most recent changes in February, environmental claims continue to be brought. That said, the Government agree that it is too early to make a fully effective assessment of the impact of the changes to the environmental costs protection regime to date. We will keep the impact of the new environmental costs protection regime under review and will review it formally when we have sufficient data, so I seek to reassure the noble Baroness on that point.
The Government need to strike a balance between enabling appropriate claims to proceed and making sure that unmeritorious claims are not encouraged. Those who can pay towards the costs of unsuccessful claims should do so, subject always to the requirement that Aarhus convention claims should not be prohibitively expensive. Overall, the Government believe that the reforms that have been introduced are fair and reasonable and certainly comply with our international obligations. That is the subject of a current challenge on which the High Court is about to opine. I respectfully suggest that it would be premature for this House to anticipate the opinion of the High Court on these points and I hope that the noble Lord will withdraw his Motion.
Lord Marks of Henley-on-Thames
My Lords, I am very grateful to everyone who has spoken, particularly of course to those many noble Lords who have spoken in favour of my regret Motion. I will be very brief in closing, but will address the point made just now by the Minister and by the noble and learned Lord, Lord Brown of Eaton-under-Heywood. They both mentioned —indeed the Minister relied upon—the High Court challenge to the legality of these regulations. This Motion is a parliamentary Motion and entirely independent of the High Court proceedings. If the High Court challenge succeeds, that will be the end of the matter and the rules will be quashed. The question in that case is whether the then Lord Chancellor could lawfully make the new rules; the question for this House is whether she should have made the rules or whether they offend against the principles which I mentioned at the outset.
The central point in this regret Motion is that the new rules reduce costs protection, for precisely the reason set out by the noble Lord, Lord Pannick. Costs protection comes from having the confidence that when you go into a case and have a costs protection order, you will be limited in your liability to £5,000 for individuals or £10,000 for organisations. It is the claimant’s costs protection that is important in these cases. I invite noble Lords to remember that very often this is public interest litigation, where concerned individuals and concerned organisations—not all large, some of them small, often charities—go into litigation not for a personal interest but because they want to secure the public interest. Why would they go into that litigation with the risk that they are going to have their exposure radically increased during the case? I do not accept the Minister’s interpretation of the arguments that were put in the current challenge on the circumstances in which a limitation can be removed—that is not in the rules and we have not had the judgment.
This is the kind of litigation that we are concerned with. Costs protection is a very important part of it and was the Government’s response in 2013 to the Aarhus convention. This is what is necessary to comply with it, in terms of the politics of this House making sure that costs are not prohibitively expensive. I have heard nothing that persuades me to withdraw my regret Motion and I wish to test the opinion of the House.
Prisons and Youth Custody Centres: Safety
Lord Marks of Henley-on-Thames Excerpts(7 years, 4 months ago)
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Lord Keen of Elie
I am obliged to the noble Lord, Lord Beecham, for his observations. First, on the safety of the youth estate, since his report was published the inspector has acknowledged that at the institution at Werrington, the standard of safety for both inmates and staff is at a scale of three out of four: that is, at 75%. Of course, the fact that one of these institutions has achieved such a level of safety takes us only so far. We will seek to emulate those standards across the entire estate going forward, but it is not the case that all these institutions have failed. I accept, however, that the failure reported upon by the inspector is unacceptable and has to be addressed.
As the noble Lord may recollect, we have already committed to spending £1.3 billion on the prison estate. In addition, I note that Her Majesty’s Prison Berwyn, which has been completed, now has 430 places in use, and, once fully operational, will have a further new 2,100 prison places. That is but a step but it is a step in the right direction. As for periods of incarceration, I note that the level of sentences imposed for violent and sexual crimes over the past decade has increased. That, of course, has an impact upon the prison estate. That is a feature that we have to take into consideration in looking at the overall operation of the system. But we cannot lose sight in this context of the issue of public safety.
Lord Marks of Henley-on-Thames (LD)
My Lords, the chief inspector reports that he is,
“appalled by the conditions in which we hold many prisoners”,
and that far too often he had seen,
“men sharing a cell in which they are locked up for as much as 23 hours a day, in which they are required to eat all their meals, and in which there is an unscreened lavatory”,
while,
“staff shortages make it impossible to provide a decent, rehabilitative environment”.
Do the Government recognise this as a crisis which disgraces Britain? The Minister’s Answer suggests complacency. We are not making significant progress. The chief inspector says that we are having,
“a dramatic and rapid decline”.
We now have a custody system that is redolent of “Midnight Express”. Never mind the nasty party, on prisons we are becoming the nasty country. Will the Government act now to reduce prisoner numbers, renew the prison estate, reduce overcrowding, radically raise staffing and tackle violence of all forms?
Is the MoJ powerless to persuade the Treasury to spend more on reducing reoffending to save offenders’ futures, at the same time saving much of the £13.5 billion annual cost to the public purse of reoffending?
Lord Keen of Elie
I am obliged again to the noble Lord, Lord Marks. Complacency is not a badge that can properly be applied to the Government with regard to the issue of prisons and the prison estate.