Legal Aid, Sentencing and Punishment of Offenders Bill

Lord Pannick Excerpts

Tuesday 20th March 2012 Lords Chamber

Moved by

[Lord Pannick]

151: After Clause 58, insert the following new Clause—
“Pro bono representationPayments in respect of pro bono representation before the Supreme Court
(1) In section 194 of the Legal Services Act 2007 (power for certain courts to order losing party to make payment to charity where other party is represented pro bono) in subsection (10) for the definition of “civil court” substitute—
““civil court” means—
(a) the Supreme Court when it is dealing with a relevant civil appeal,(b) the civil division of the Court of Appeal,(c) the High Court, or(d) any county court;“relevant civil appeal” means an appeal to the Supreme Court—
(a) from the High Court in England and Wales under Part 2 of the Administration of Justice Act 1969,(b) from the Court of Appeal under section 40(2) of the Constitutional Reform Act 2005, or(c) under section 13 of the Administration of Justice Act 1960 (appeal in cases of contempt of court) other than an appeal from an order or decision made in the exercise of jurisdiction to punish for criminal contempt of court;”.(2) This section applies in relation to appeals to the Supreme Court only where the decision, order or judgment that is the subject of the appeal is made or given on or after the day on which this section comes into force.”

[Lord Pannick]

My Lords, this amendment is less controversial than some that your Lordships have been debating on Report. I am very grateful to the Minister for adding his name to it, and I will briefly explain its purpose and effect. Lawyers are often criticised, sometimes in your Lordships’ House and sometimes with justification, but noble Lords will wish to acknowledge that a large number of them spend at least part of their time working unremunerated for clients simply because they wish to contribute to the promotion of justice. In some of these cases, the lawyer succeeds for the client. The other side in the litigation, the unsuccessful party, cannot then be ordered to pay the costs of the proceedings because, having been represented by the pro bono lawyer, the successful litigant has no costs.

Section 194 of the Legal Services Act 2007 addresses such cases. It confers power on the court to order a person, normally the unsuccessful party, to pay a sum in respect of the notional costs to a charity prescribed by the Lord Chancellor. The charity prescribed is the Access to Justice Foundation. It then distributes the sums paid to it to voluntary organisations that provide free legal support for individuals and communities. As currently drafted, Section 194 has one defect; it applies to civil cases in the county court, in the High Court and the Court of Appeal, but it does not currently apply to civil cases in the Supreme Court. This is despite the fact that many of the cases in which lawyers act pro bono are in the Supreme Court. This amendment quite simply will remove that defect.

The amendment is also in the name of the noble and learned Lord, Lord Goldsmith. Unfortunately he cannot be in his place today as he is working elsewhere, although I do not think that on this occasion it is on a pro bono basis. He is, however, the chairman of the Access to Justice Foundation. As Her Majesty’s Attorney-General, he was the promoter of Section 194. I pay tribute, as I am sure all noble Lords will want to do, to his tireless work in encouraging lawyers to give of their time to work pro bono. I know that he is as pleased as I am that the Minister has indicated that the Government will support the amendment.

I thank the Minister for considering this issue and for supporting this much needed reform, which I know will also be welcomed by the justices and practitioners of the Supreme Court and by all those clients, and potential clients, who will benefit from the receipt of further funds from the foundation. I beg to move.

--- Later in debate ---

[Lord McNally]

My Lords, I will explain. The original amendment by the noble Lord, Lord Pannick, did not cut the muster as legal statute. As the noble Lord knows, I have qualifications in this area, so I tweaked it a little, on the basis of my knowledge of part 1 of the relevant material on English legal institutions, to make it fit for purpose. I was glad to do so.

I am also glad to associate myself with the intervention of my noble friend Lord Phillips, who is on a roll today. I commend LawWorks and its encouragement of pro bono work on the part of solicitors, the Access to Justice Foundation and the work of the noble and learned Lord, Lord Goldsmith, in this area. We hope that it will increase the stream of funding available for pro bono work. I have great pleasure in saying that the Government accept this amendment.

[Lord Pannick]

I renew my thanks to the Minister. He is absolutely right; those advising him did indeed improve the drafting of the amendment and I am very grateful to them as well.

Amendment 151 agreed.

--- Later in debate ---

[Lord Morris of Aberavon]

My Lords, I support the noble and learned Lord, Lord Lloyd. All he wants to do in the amendment, as I understand it, is to go back to the pre-2003 position. Because of judgments of the European Court, the Home Secretary is not able to take such a decision, but successive Home Secretaries have not been willing to give this kind of decision to the Parole Board, as envisaged in the noble and learned Lord’s amendment.

I believe that the present position is untenable. The noble and learned Lord referred to the case of Vinter, in which it was decided—by a majority of four to three, a tiny majority—that this was not an inhumane process. I do not always have the greatest confidence in this court, which is not a very happy court to be in. When I appeared before it as an attorney, you had half an hour. Your opponent had half an hour in which to reply. You might have had a few minutes to say a few more words but the court would file out having heard the argument and not have any exchange whatever with counsel or carry the matter any further. A few months later you would have a decision.

As I understand it, this matter will undoubtedly go to an appeal. It will be considered by a court of five and the Government may lose. In all probability, it may then go, if leave is given, to the Grand Chamber and the Government may lose. With these tiny votes and these tiny majorities, one cannot be sure what will happen in this court. The Government will be in a very difficult position and will undoubtedly have to take action.

Without any further words, I believe that the present position is not compassionate, is not human and is not in the interests of justice, whatever that may mean. Surely to leave an individual in this kind of limbo, which he was not left in previous to 2003, is not a practice that would commend itself to the civilised world. I therefore support the amendment.

[Lord Pannick]

My Lords, I have added my name to this amendment so persuasively moved by the noble and learned Lord, Lord Lloyd of Berwick. We are here concerned with the most awful cases of murder but, as your Lordships have heard, prior to 2003 such cases were reviewed after 25 years. There is no suggestion that that gave rise to any difficulty or any problems at all. The argument for the amendment is very simple. It is simply wrong in principle for anyone, however wicked, to be told that they must spend the whole of their life in prison with no possibility of review, however long is going to elapse and whatever progress they may make.

It is unlikely that a murderer who has committed such grave crimes that he has received a whole-life tariff will ever make the progress that would make release appropriate, but the point surely is that basic humanity demands that the offender has a chance, however remote, to prove to others and to himself that he can live a worthwhile life. It is surely also very unfortunate from the point of view of prison administration that a group of highly dangerous persons —that is, dangerous when they are sentenced—should be told that however well they behave they will never be released. Surely that makes our prisons much more dangerous places.

I have no confidence that the Minister will tell the House this evening that he will accept this amendment. I very much hope that he will but I have no confidence that he will in the light of what he said in Committee. However, I urge him to ask himself whether our penal regime should really be based on a principle of locking the prison door and throwing away the key.

[Lord Judd]

My Lords, it takes a good deal of cheek for me, as a lay man, to come in after three speeches like that. All I can say is that in the society in which I want to live, no matter how heinous or terrible the crime that has been committed—clearly, these crimes are about terrible things that have happened—that society should be based on the principle of hope of redemption and hope that even the worst offender can become a better and decent person, otherwise it has a very negative culture that undermines a lot more than simply the issue of the prisoner himself. It is about the values and self-confidence of society as a whole. It is high time that this situation was put right. I am very privileged as a lay man to support these well qualified views that we have just heard. I hope that the Minister will take them seriously.