Criminal Justice and Courts Bill

Baroness Campbell of Surbiton Excerpts

Monday 30th June 2014 Lords Chamber

[Baroness Campbell of Surbiton (CB)]

My Lords, I find myself in unfamiliar territory today as criminal justice is not my usual stomping ground, but I feel an urgency to raise again my deep concern about the cumulative impact of the Government’s reforms—let us call it death by a thousand cuts—on the lives of disabled people. I am aware that many fine legal minds might also be taking the Minister to task, so I will be in good company.

Less than two months ago I spoke in support of a Motion laid by the noble Lord, Lord Pannick, to regret the Government’s changes to legal aid for judicial review. Having looked very closely at Part 4 of the Bill, I realise how critical the connection is between these two debates.

The Government have presented their changes to judicial review as no more than tinkering with dusty and irrelevant procedures. Nothing could be further from the truth. Judicial review and access to justice have never been more important, particularly for people with disabilities, who, let us face it, are financially challenged. Disabled people have far more contact with public agencies, whose decisions may have a devastating impact on how we live. It is not surprising, therefore, that the means of ensuring that those decisions are taken lawfully, fairly and as Parliament intended is so highly prized. The Government tamper with it at their peril.

Much has been made of a few high-profile cases to make the case for this change. The bread and butter of judicial review is not about Richard III; it is about ordinary people and their relationship with administrative and organisational power. As I said in the Motion of Regret,

“judicial review … is about people standing up to public bodies when”—

and they do—

“they get it just plain wrong”.—[Official Report, 7 May 2014; col. 1549.]

Take the Tracey family, who established at the Court of Appeal that an NHS trust had acted unlawfully by placing a DNR—“Do Not Resuscitate”—order on their mother’s records without consulting her. In a landmark judgment, the appeal court stressed that the duty to consult is an integral part of respecting patients’ dignity. That case could have been mine. I know only too well how frightening it is to have a DNR order placed on my hospital notes. Ten years ago, I faced it myself when admitted to hospital with pneumonia. Luckily, the DNR order was spotted early, and on that occasion the situation was resolved—I am here—but I was always afraid that this could happen to other disabled people. The Tracey family judgment has gone a long way towards allaying our fears and making us feel safer—judicial review.

As noble Lords will know, I served for many years as a commissioner on the Disability Rights Commission and then the Equality and Human Rights Commission. I oversaw the cases they supported or intervened in. I know how important those cases were: for example, the decision that a local authority’s blanket ban on manual lifting and handling, which deprived two seriously disabled sisters of any control over their lives, was unlawful. That ruling has had a life-changing impact on the practice and procedures of all local authorities.

Although we are not here to discuss legal aid today, the proposals in Part 4 of the Bill must be considered in that context. The legal aid changes will make it harder for people to secure advice and representation. Increased fees already make it more difficult for those without means to access judicial review. Part 4 will introduce further barriers, and may restrict judges’ discretion to act fairly in cases that should be heard in the public interest.

I have questions to put to the Minister in two areas of these proposals. The first relates to the “no difference” test. Clause 64 will require judges to refuse judicial review where, even if a local authority acted unlawfully, the outcome would be “highly likely” to have been no different. Consider a failure by a local authority to consult the community in its decision to withdraw a service. Are the Government really asking a judge to “guesstimate” what the outcome of that consultation might have been and what disabled people might have said in response? Will he then guess how the local authority might have responded? Is second-guessing part of the judge’s role?

The second area for the Minister relates to the disclosure of financial information. Under Clauses 65 and 66, judicial review claimants will have to provide information on their financial resources before their claim can proceed. The Government say that they want to stop claimants being used as “human shields” by unscrupulous persons trying to avoid court costs. That really does not ring true to me.

Of concern is the worrying effect of these measures on poorer claimants and those who are willing to support them if they cannot get legal aid. If my cousin gives me £5,000 to help me challenge a decision about my support, will that open up the spectre of an order for court costs, putting her home at risk? What about lawyers volunteering their services pro bono? Would their gifts in kind put them at similar risk? If not, where is the reassurance in the Bill? I hope that the Minister will clarify this.

The Joint Committee on Human Rights has published a powerful critique of these proposals. I had the privilege of serving on that committee and I know how hard it works to reach a cross-party consensus on politically contentious cases. I wholeheartedly endorse its conclusion that the case for change is not made and that Part 4, if not heavily amended in Committee, should be rejected. But I am heartened today by the Minister’s comments that having listened to concerns raised on this in the other place, he may consider amendments in Committee. I look forward to holding the Minister to this when he returns in Committee, and I will be back too.

Disabled people, more than any other group, have experienced the cumulative burden of myriad government reforms in recent years. Please let us not make access to justice the final injustice.

Civil Legal Aid (Remuneration) (Amendment) (No. 3) Regulations 2014

Baroness Campbell of Surbiton Excerpts

Wednesday 7th May 2014 Lords Chamber

On practical grounds, I suggest to the Minister that appropriate savings to the legal aid budget could be effected by using the “wholly without merit” test, and that, if we adopted that approach as compared with the regulations, we would have a solution that would be fair and judicious—and, of course, would have the advantage of being judicial, too.

[Baroness Campbell of Surbiton (CB)]

My Lords, I support the Motion of Regret tabled by the noble Lord, Lord Pannick. I congratulate him on securing this debate on a subject of such fundamental importance. I will leave the legal arguments to the noble Lords who understand them. I want to focus on the impact of these regulations on the more vulnerable in our society.

The Lord Chancellor acknowledges that judicial review is an important tool, yet he has railed against its use by campaigners, declaring, in an article in the Daily Mail last September:

“While charities inundate Westminster with campaign material, they also target the legal system as a way of trying to get their policies accepted. One essential part of the campaigner’s armoury is the judicial review, through which it is possible for them to challenge decisions of government and public bodies in the courts”.

Only three months ago the slight was repeated in the Government’s response to their proposals for further reform of judicial review, which said that,

“too often cases are pursued as a campaigning tool”.

Let me declare an interest: I have been a campaigner all my life and I am fiercely proud of it. I believe that my efforts have enabled disabled people to gain their rights to dignity and equality, which for so long had been denied them. I think all of your Lordships would celebrate this. Where would we be without campaigns to right injustices? To take only one example, where would we be without the crusading spirit of the noble Baroness, Lady Lawrence?

What lies behind many of the highest-profile campaigns? It is injustice. No matter how many times the Lord Chancellor repeats himself, judicial review is not about campaigning; it is about people standing up to public bodies when they get it just plain wrong. That is exactly why we need judicial review and why legal aid is so vital to its effectiveness. It is about every citizen’s right, not just those with deep pockets, to challenge the state if it behaves unlawfully.

Those who may be most affected—the disadvantaged in our society—cannot do that alone. They rely on lawyers to represent them. These regulations will make it all but impossible for lawyers to take on their cases. That is a denial of justice. It undermines the rule of law. These regulations have been severely criticised by the Secondary Legislation Scrutiny Committee and the Joint Committee on Human Rights, not only for what the regulations do but for the way they have been introduced. To deny Parliament the opportunity for full debate on an issue of such importance is surely an abuse of our democratic principles.

If there is evidence of judicial review abuses—which the JCHR did not accept—the Government should address those specifically. It is simply wrong to punish all those who use it legitimately in an attempt to prevent the few who might not. As noble Lords will know, my lifelong passion has been championing the cause of independent living. In just the past few months, we have had two landmark judgments. Both came about through judicial review.

In December 2013, the Court of Appeal decided that the Minister for Disabled People had not properly considered the impact that closure of the Independent Living Fund would have on severely disabled people. In March, the Supreme Court ruled that three vulnerable individuals had been unlawfully deprived of their liberty under the Mental Capacity Act.

We cannot be confident that such cases will continue to come before the courts if these regulations are in place. For this reason alone, I wholeheartedly support the Motion.

[Lord Cormack (Con)]

My Lords, it is always a privilege to follow the noble Baroness, Lady Campbell. She is an outstanding example to us all and it is a very humbling experience to follow her.

I speak, as she did, as a non-lawyer. I think it is good that non-lawyers should take part in a debate such as this. I was very glad that the noble and learned Baroness, Lady Butler-Sloss, referred to Magna Carta. I spent much of this afternoon discussing with people involved in it the preparation for our celebration of Magna Carta next year. I hope that next year we will underline in every home and every school in the land the fundamental importance of the rule of law. I would like to give every secondary school pupil in this country a copy of Lord Bingham’s splendid book on the rule of law.

It is all very well to say these things and to pay lip service to them. What we have to do is to pay more than lip service because what is being proposed by the Government is inimical to the rule of law as I understand it. Unlike the noble Lord, Lord Lester of Herne Hill, and the noble and learned Baroness, Lady Butler-Sloss, I was not happy about the change in the role of the Lord Chancellor, and I said so at the time. I feel mildly vindicated. I do not, in any sense, want to indulge in any sort of personal attack on any individual, but rather to talk briefly about the principle of the thing. I understand how government Ministers and those who run public bodies and local authorities can get very exasperated and impatient because of inconvenient challenges to their decisions. We are all human, and we all feel exasperated on occasion. But exasperation is not a reason for doing something that is not necessarily contrary to the rule of law but makes it more difficult for people to enjoy the benefits of the rule of law.

Assisted Suicide

Baroness Campbell of Surbiton Excerpts

Wednesday 5th March 2014 Lords Chamber

[Baroness Campbell of Surbiton (CB)]

My Lords, I, too, thank the noble Baroness, Lady Jay, for her consideration of the DPP guidelines.

The DPP guidelines were produced only after extensive consultation. I was privileged to be involved in responding to that consultation on behalf of Not Dead Yet UK, the coalition of hundreds of terminally ill and disabled people who formed a group to oppose a change in the current law on assisted suicide.

In the consultation, the DPP asked what weight should be given to any progressive condition or disability experienced by the victim. We argued strongly that that was potentially discriminatory and fed into society’s prejudices that terminally ill and disabled people do not require equal protection of the law. I am happy to say that that was adhered to. As someone who from time to time must rely on medical interventions from doctors, I was thoroughly relieved to see that assistance with suicide by a doctor or nurse to a patient under their care is listed in the guidelines as an aggravating factor.

Terminally ill and disabled people are in a worse position today than was the case five years ago. National economic instability means that public support services are under more pressure than ever. That has hardened public attitudes towards progressive illnesses, old age and disability. Words such as “burden”, “scrounger” and “demographic time bomb” come to mind, and hate crime figures in relation to vulnerable people have increased dramatically. This is a dangerous time to consider facilitating assistance with suicide for those who most need our help and support. It is not only dangerous for those who may see suicide as their only option, but can be tempting for those who would benefit from their absence.

I am disappointed that there are Members who refuse to accept previous decisions made by this House and relentlessly bring the issue of assisted suicide back for debate again and again. One does not have to look very far to see where the slippery slope of legalising assisted suicide takes a country. Belgium has recently extended its law on euthanasia to include terminally ill and disabled children. That is not a future I want for our children or the most vulnerable, and this House has made it clear that it shares that view.

The DPP’s guidelines are to be celebrated as an essential tool in providing protection to society’s most vulnerable people. I trust that they will continue to enjoy the support of the Government and this House.

[Lord Ahmad of Wimbledon (Con)]

My Lords, before the right reverend Prelate gets to his feet, I briefly remind noble Lords that there is a two-minute limit on each speech and ask them please to keep to that, because this is a time-limited debate.

General Election: Voting Deadline

Baroness Campbell of Surbiton Excerpts

Wednesday 7th July 2010 Lords Chamber

[Lord McNally]

I think that my right honourable friend the Deputy Prime Minister has already given the assurance that he will consult widely.

[Baroness Campbell of Surbiton]

My Lords—

[Lord Naseby]

My Lords—

[The Chancellor of the Duchy of Lancaster (Lord Strathclyde)]

My Lords, the noble Baroness, Lady Campbell of Surbiton, wishes to speak.

[Baroness Campbell of Surbiton]

My Lords, do the Government realise that there has been no progress on disability access to polling stations since 2005, according to the Scope research that has just been published? What steps will the Government take to make sure that disabled people can vote in the next election and vote for reform in 2011?

[Lord McNally]

My Lords, I have not seen the Scope research, but I will certainly study it. It is very important that all sections of our community, with any measure of disability, should be able to vote. One thing that I know is being considered is electronic voting, which might be an alternative for people with disabilities. But I take the noble Baroness’s point: disabled people, just like anyone else, want to exercise their vote personally at a polling station. We will look into that.