Queen’s Speech

Baroness Deech Excerpts

Thursday 9th May 2013 Lords Chamber

[Baroness Deech]

My Lords, we heard an interesting legislative programme from Her Majesty the Queen, with particular implications for our constitution and legal system. The noble Lord, Lord McNally, emphasised the Government’s focus on the criminal law, but all legislation of the past and the laws to come depend on enforceability and the rule of law. They in turn depend on fair access to the courts and to legal advice from independent lawyers. The fascinating speech by the noble Lord, Lord Phillips, has shown just how necessary that is. For decades, British citizens have had the advantage of assistance through legal aid and the pro bono services of lawyers, volunteers and citizens advice bureaux. The new proposals, however, will damage our system, the best justice system in the world and one that attracts billions from foreign clients.

I declare an interest as chairman of the Bar Standards Board, which regulates barristers, but I must clarify that I am not speaking for the professional interests or the income of barristers but in support of a legal objective that the previous Government set up for the legal profession and its regulation in the Legal Services Act 2007, to which I will revert. The regulation that my board does is carried out entirely in the public interest.

Nevertheless, I support what the noble Lord, Lord Thomas, said not long ago, although I come to it from a different perspective. It is self-evident that there cannot be a bottomless fund for legal aid but the wrong impression has been given in the media in relation to the sums and how they are allocated. The large sums said to be spent on legal representation do not take into account the overheads of the self-employed or that the fees may represent several years work. Only a very small number of cases dealing with the most serious crimes—terrorism and the like—command large resources. Many young barristers practising publicly funded criminal law are earning around £25,000 a year or less. Not only will they abandon it, depriving the courts of good judges in future years, but the way in which the legal system is now being treated is putting an end to the goal of social mobility and diversity in the profession that the Government alleged was so important.

I would feel hypocritical going to visit schools, or encouraging other lawyers to go to schools, to encourage children from underprivileged backgrounds, where no one in the family has ever qualified as a lawyer, to take up criminal law or family law, which is also largely publicly funded. It is misleading to draw a picture of possibilities when not only will they incur debt at university but will find after qualification that there are no jobs open to them at the starting line of the criminal Bar, in the magistrates’ courts and so on, where formerly a newly qualified young barrister could expect to earn a modest amount.

In addition to the cuts in legal aid already brought in under the Legal Aid, Sentencing and Punishment of Offenders Act 2012, the Ministry of Justice is now consulting, as we have heard, on making savings of £220 million a year by 2018 by cutting prices. This it can do without the opportunity to debate the impact in this House. The ministry is proposing competition in the provision of criminal representation. Where no competition is proposed for now—that is, in Crown Court advocacy and very high-cost cases—a new fee framework is proposed that will encourage early pleas of guilty, for the longer a case lasts the less the daily fee will be. There must be a case to fear undue pressure to plead guilty caused by the new fee structure proposed. Solicitor representation fees in family cases will be reduced by 10%.

Price-competitive tendering may sound reasonable in criminal representation but it will not be genuine under the proposals, as the market is not to be left to itself: a new price cap will be set at 17.5% below current fees. The new system seems to favour tendering only by new commercial outfits and large firms, as the noble Lord, Lord Thomas, said, leaving high street solicitors to go to the wall. The client will not be able to choose who represents them and the relationship built up by advocates and their clients over the years will count for naught. There will be a two-tier system: a choice of good advocates for those who pay themselves and take what comes for those who need to be funded.

What will be the effect? One must put to one side the picture drawn by the media of money being wasted on representing undeserving criminals. This is about everyone who is ever in court, rightly or wrongly, and all are innocent until proven guilty. Legal aid is about ensuring that right is done. If anyone is familiar with “The Winslow Boy”, they will know graphically the emotional stigma of the wrongly made accusation and how one must strive to do justice, even for the most unappealing—a very topical issue. Parents need legal advice for their children. All of us need to be able to challenge the state when officials may have overstepped the mark. The person accused of wrongdoing ought to be able to take advice from a lawyer he knows and trusts, and who can act expeditiously to prove his innocence. Cuts in family law will bear especially hard on women, who are more likely to be carers of children and have less knowledge of the law and details of ownership of the family assets. Mediation is not the answer. If it were, we would not need a legal system at all.

Already, litigants excluded from legal aid have to resort to self-representation. While the Bar Council has, one might say contrary to its own interests, put out a booklet to help self-representing litigants, judges will have their time wasted, the court system will slow down, and more money will be lost in the long run. Very recently, the damage being caused was commented on by Lord Justice Ward, who said in a judgment that,

“the case highlights the difficulties increasingly encountered by the judiciary at all levels when dealing with litigants in person ... Judges should not have to micro-manage cases, coaxing and cajoling the parties to focus on the issues that need to be resolved … saving expenditure in one public department in this instance simply increases it in the courts … justice will be ill served by this emasculation of legal aid”.

Cutting legal aid to save costs carries the risk of becoming a classic example of false economy, and there will be no parity of justice when one party is represented and the other is not. The Government must be close to finding themselves in breach of Article 6 of the European Convention on Human Rights, which says that everyone facing a criminal charge is entitled to a fair and public hearing and has the minimum rights of,

“adequate time and facilities for the preparation of his defence; to defend himself in person or through legal assistance of his own choosing”.

The cuts in aid and in fees are such as to endanger the future of the profession. They also offend against each and every one of the objectives of Section 1 of the Legal Services Act 2007, which include,

“improving access to justice … protecting the interests of consumers … encouraging an independent, strong, diverse and effective legal profession”,

and supporting “the rule of law”.

Given that there will be no assistance for most divorcees, it is urgent that the law on financial provision on divorce be reformed to make it user-friendly. The sums involved amount to £220 million a year. One could make savings by reforming the law of financial provision on divorce. It is now so complicated, uncertain and unfair that it is almost impossible to predict the outcome of litigation about dividing family assets on divorce. There are cases where almost as much is spent on fighting as the assets themselves are worth. There have even been cases where the entire assets are spent on costs. That is because the law is unjust and based on old-fashioned principles without regard to today’s high breakdown rates, women’s equality and independent earning power. The Law Commission has recently put forward for consideration proposals to replace the current unsatisfactory statutory provisions on financial provision in divorce with new ones that might rely on a formulaic calculation. While this is a blunt instrument, there is much to be said for having a law that enables separating parties to calculate for themselves how their assets should be divided. An alternative, which I am minded to put forward for your Lordships’ consideration in a Private Member’s Bill, is to replace the English law on financial provision on divorce with the Scots law. That law by and large provides for the equal sharing of family property and limited ongoing financial support. It works well in Scotland, there are few reported cases and there is no reason why it should not be imported here.

Of course, agreements between spouses and cohabitants about sharing property on separation should be respected and not subjected to dissection by the courts. In other words, we should recognise pre-nups and do away with expensive litigation over their validity and the substance of the issues. Our justice system need not be as costly as it is if, in family law at least, the parties are treated as adults and given clear guidelines about the division of their assets.

Finally, one should get the extent of legal aid savings into perspective. Great damage is about to be done to the court system, litigants, the legal profession, diversity and the rule of law to effect a saving of £220 million a year. We have just spent £10 billion on the Olympics, with so far not much legacy. The Government have recently committed to spending £60 million on converting the Olympic stadium into a football ground for West Ham. We have lost our moral compass if we think that it is preferable to spend on the Olympic stadium rather than on legal aid, to give tax relief on wind turbines rather than spend sums on access to justice, and when we send overseas aid to Argentina rather than supporting the rule of law at home. The requisite savings could be made if alleged criminals’ assets were unfrozen and used to fund their legal representation as the litigation unfolds. I am sure that everyone in this House has a taxpayer-funded project in mind that is unnecessary and less significant than cutting access to justice. If the legal system and the citizen’s ability to use it are damaged, then the fine words of a new legislative programme will never be any more than that.

Crime and Courts Bill [HL]

Baroness Deech Excerpts

Wednesday 12th December 2012 Lords Chamber

Moved by

[Baroness Deech]

122AA: Clause 33, page 33, line 16, at end insert—
“( ) section (Appeals relating to regulation of the Bar);”

Criminal Records Bureau

Baroness Deech Excerpts

Wednesday 21st March 2012 Lords Chamber

[Lord Henley]

My Lords, my noble friend is right to draw attention to the importance of trust. He is also right to draw attention to the very high number of certificates that have been issued. This is a matter that we have been addressing in the course of the Protection of Freedoms Bill. I refer my noble friend to the impact assessment of last year on that Bill, which estimated that there would be a reduction of some 50 per cent in the number of such certificates being issued, dropping from about 3.7 million a year to something like 1.7 million. I think that is a step in the right direction.

[Baroness Deech]

Will the Minister be good enough to give the House his opinion of the effect that the following scenario will have on the outreach work carried out by this House? I invite a small group of A-level students to visit this House, as I have done before, to sit in the Chamber, to have tea and to take a small tour, and the teacher writes asking me please to confirm that I have had a CRB check.

[Lord Henley]

Obviously, the noble Baroness is a most tremendous risk to the public and to children and I hope that she will consider these matters very carefully. No—that is what we want to address and it is the point of some of the changes we are making as a result of the Protection of Freedoms Bill. It is why we will keep these matters under review and it is why my right honourable friend the Home Secretary launched her initial review into these matters last year. I go back to the supplementary question of my noble friend Lord Vinson when he talked about trust being important. We think it is vital that people take a common-sense approach in these matters.

Universities: Anti-Semitism

Baroness Deech Excerpts

Tuesday 6th March 2012 Lords Chamber

Asked by

[Baroness Deech]

To ask Her Majesty’s Government whether they will clarify the laws applying to universities and student unions when an anti-Semitic incident has taken place on campus.

[Baroness Verma]

My Lords, the law is clear: there is absolutely no place in our universities for racism, including anti-Semitism. As independent bodies, universities and student unions are responsible for undertaking their own legal obligations. They have the tools to tackle anti-Semitism. They have access to a very strong legislative framework and practical guidance to provide protection and deal with any anti-Semitic incident. We expect universities to act swiftly to investigate and address any anti-Semitic incidents reported to them. We have seen a fall in the number of incidents in higher education, from 44 in 2010 to 27 in 2011, according the Community Security Trust, but I accept that that is still too many and we must not be complacent in our resolve.

[Baroness Deech]

I thank the Minister for her Answer. However, I wonder if she is aware of just how often these anti-Semitic incidents occur, reported or not. Sometimes it is other students’ Nazi-themed activities, coupled with assaults, and sometimes it is hate speakers who are invited on to campuses which indeed they target. Recent events include speakers who blame 9/11 on Israel or who equate all Jews with Nazis, and worse. Universities tend to take refuge behind the doctrine of freedom of speech and do very little. They do not seem to realise the limits of freedom of speech as constrained by recent legislation largely from the previous Labour Government. The Public Order Act—

[Noble Lords]

Question!

[Baroness Deech]

Will the Minister ensure that universities bring up to date their codes of practice on visiting speakers to take account of legislation and make sure that they apply to student unions as well?

[Baroness Verma]

My Lords, the Education (No. 2) Act 1986 requires university governing bodies to ensure as far as possible and practicable that freedom of speech within the law is secured for members, students, employees and visiting speakers. Institutions have to issue and keep updated a code of practice on the organisation of meetings and other activities taking place on their premises. These codes often include the right to refuse permission for an event. However, universities have to balance freedom of speech with their legal obligations, for instance in the Equality Act 2010. Only institutions themselves can make decisions about speakers. No other body could make judgments about each and every case. They are subject to the courts in this, as with other laws. The 1986 Act does not apply directly to student unions but indirectly through the universities’ codes of practice.

Marriages and Civil Partnerships (Approved Premises) (Amendment) Regulations 2011

Baroness Deech Excerpts

Thursday 15th December 2011 Lords Chamber

[Lord Pannick]

My answer to the noble and learned Lord is that in 2010, when the noble Lord, Lord Alli, was seeking to persuade the House to create for the first time, contrary to what had been decided in 2004, a power for religious bodies to conduct civil partnership ceremonies, it was perfectly understandable that it should be made clear that this was a power but not a duty. We had that debate and resolved the matter. There is no ambiguity and we really do not need to revisit it.

[Baroness Deech]

Given the protection for religious freedom that the noble Lord, Lord Pannick, has just described, why did the Equality Act and the Human Rights Act not permit a Jewish school to continue its religious freedom in maintaining the definition of Judaism that had prevailed in the Jewish religion for thousands of years?

[Lord Pannick]

As the noble Baroness knows very well, that case raised completely different issues. No specific provision in the Equality Act addressed that question. I have to declare an interest. As the noble Baroness well knows, I was the counsel who acted for the JFS, the Jewish Free School, in that litigation, and the problem was that there was no specific provision. By contrast, the Equality Act addresses this very question and it does so in the clearest possible terms.

Equality Act 2010 (Specific Duties) Regulations 2011

Baroness Deech Excerpts

Tuesday 6th September 2011 Lords Chamber

[Baroness Verma]

My Lords, I will deal with the points raised by my noble friend Lord Waddington and the noble Lord, Lord Low, separately, but I will begin by dealing with my noble friend’s amendment. I recognise that he speaks with passion and that he has been consistent in his arguments. I stand here as somebody who may not be absolutely in tune with everything on the subject of equality, but I do know the outcomes of discrimination and inequality. I think, therefore, that what we are doing here today is helping to address those issues. While there may be Members among my noble friends behind me who think that we have gone too far, I say to them: ask the people who do not have access to those opportunities and you may get responses that are difficult to take if you have never had to undergo such discrimination yourselves.

My noble friend has made clear his concerns about the issue of religious freedom.

[Baroness Deech]

In her description of access, has the Minister taken into account the fact that the Government’s own cuts in legal aid will prevent people with those protected characteristics from enforcing their rights? They represent a savage onslaught on protected characteristics and access to justice.

[Baroness Verma]

My Lords, I will continue with my notes. My noble friend has made clear his concerns about the issue of religious freedom and its relationship with equality law. The Government are committed to striking a fair balance between religious freedom of expression and the rights of people not to be discriminated against whether at work or at school and when buying goods or using services. A fair balance is what the Equality Act 2010, and the legislation it replaced, achieves. I know that my noble friends and others would agree with that. The Act provides protection from discrimination because of religion or belief. It is drafted carefully to ensure that people are protected from being discriminated against but different treatment is permitted where this is justified—for example, because it is necessary to protect religious freedom of expression.

In addition, in service delivery, non-commercial religious organisations are permitted to restrict the provision of services because of religion or belief, or because of sexual orientation in some circumstances, but discrimination because of sexual orientation is not permitted when a religious organisation is providing services on behalf of a public authority. Where a policy or practice has an adverse effect on people of a particular religion, it is permitted only where it can be objectively justified. As you can see, the legislation has been framed carefully to ensure that religious organisations can act in line with their doctrine while ensuring that people are protected from being subjected to discrimination and harassment because of their sex or sexual orientation, for example. However, for commercial businesses the position is different. In practice, this means that someone who runs a business or provides a service to the public can of course hold and express their religious beliefs, whatever those may be. However, the right to manifest religion or belief may properly be limited in certain circumstances, including where it interferes with the rights of others. The Government are clear that these measures strike a fair balance between religious freedom of expression and the rights of people not to be discriminated against. Thus the Equality Act 2010 delivers a level playing field rather than a hierarchy of rights.

The equality duty covers the protected characteristic of religion or belief. This is only right. Had it not been included, there would have been a hierarchy of discrimination whereby discrimination and disadvantage suffered because of religious beliefs would effectively have been deemed less important than discrimination and disadvantage because of gender or race, for example. Indeed, it would have been more complex than that, as Jews and Sikhs would have been covered—as they are covered by the race aspect of the duty—but Christians, Muslims and Humanists would not.

Indeed, the equality duty now covers all the protected characteristics and provides the legal framework for considering how decisions affect all groups and, where necessary, how different needs can be balanced. The specific duties which we are discussing today will help to ensure that public bodies do that balancing correctly.