Civil Procedure (Amendment) Rules 2017

Lord Brown of Eaton-under-Heywood Excerpts

Wednesday 13th September 2017 Lords Chamber

[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.

--- Later in debate ---

[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.

[Baroness Young of Old Scone (Lab)]

My Lords, I wonder if I might address the points made by the noble and learned Lord, Lord Brown, not from the point of view of his confidence in flexibility and the wisdom of judges but from the point of view of the people who regularly have to consider whether they are willing to put forward their personal assets and privacy and, indeed, of those organisations representing the public which are placed in that position. I should declare an interest: I am president, vice-president or chairman of practically half the conservation and environmental organisations that are involved in these cases.

I very much welcome the Motion to Regret of the noble Lord, Lord Marks, and I really do regret the way that the Ministry of Justice has barrelled on to implement the removal of the cap on claimants’ costs in environmental cases, in spite of the criticism by virtually all consultees and the views of the Secondary Legislation Scrutiny Committee, which I thought issued its opinion in a rather more trenchant and stinging way than I have seen it operate in the past, which was interesting.

As a country we have been criticised for some considerable time by the United Nations and others for our lack of compliance with the Aarhus convention. I was interested to note that yesterday the noble and learned Lord, Lord Keen, in briefing Peers on the Brexit Bill, said that although we will lose recourse to the ECJ in relation to environmental issues, our responsibilities under the Aarhus convention will remain. Alas, our responsibilities under that convention are not being delivered on a regular basis and we continue to be criticised internationally. Therefore, I regret the MoJ’s move as it takes us even further away from compliance.

I have personal experience of being involved with charities that have initiated judicial review in these circumstances. These charities are representatives of communities. The trustees of these bodies take very seriously their responsibility to represent communities on these important issues. However, they are now incredibly wary of committing to challenge the decisions of public bodies through judicial review as they can have no assurance—other than the sorts of assurances which the noble and learned Lord, Lord Brown, attempted to give on the judiciary—that costs will not escalate and that they will have no influence over that as the cap can be changed at any stage in the process.

For individuals or unincorporated public bodies contemplating initiating a judicial review against a public body, the unpredictability and possible scale of the costs, the need to demonstrate the ability to pay and the risk to their homes and other assets are, indeed, chilling. Therefore, we have a situation in which individuals are being placed in a position where they have to think long and hard about taking such a case, as do responsible, publicly focused charities.

We do not know how many cases fail to be taken and how many people are deterred by these new arrangements as those decisions are made by individuals, families and communities and, in the case of charities, made behind closed doors. As an ex-chief executive of several charities, I suspect that charities would have to have pretty brave boards of trustees to undertake what is likely to be expensive judicial review under the current circumstances. We are very much seeing communities being priced out of environmental justice. I therefore urge the Minister to reconsider this decision to remove the cap and I urge noble Lords to support a reversal of this measure.

Prisoners: Imprisonment for Public Protection Sentences

Lord Brown of Eaton-under-Heywood Excerpts

Thursday 20th July 2017 Lords Chamber

Asked by

[Lord Brown of Eaton-under-Heywood]

To ask Her Majesty’s Government when they propose to exercise the power under section 128 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 to alter the test to be applied by the Parole Board to the release of those Imprisonment for Public Protection prisoners who have served years beyond their tariff terms.

[The Advocate-General for Scotland (Lord Keen of Elie) (Con)]

My Lords, the test used by the Parole Board in assessing the suitability for release of prisoners serving a sentence of imprisonment for public protection is working. These prisoners are being released in increasing numbers. In 2016 there were 576 first-time releases of IPP prisoners—the highest number since the sentence became available. This trend is expected to continue. We have no present intention to alter the test applied by the Parole Board.

[Lord Brown of Eaton-under-Heywood (CB)]

That is all very well, but there are more than 3,000 such prisoners left. After the shocking recent press reports about the sex offender treatment programmes tending to increase rather than reduce the likelihood of sexual reoffending, does the Minister really continue to think it fair and appropriate for IPP prisoners long past their tariff date for release having to prove a negative? They have to prove that they will not reoffend on release, which the chairman of the Parole Board describes as “incredibly difficult”.

[Lord Keen of Elie]

I am obliged to the noble and learned Lord for his observations with regard to this matter, but I remind the House that we are talking about prisoners who are at a high risk of committing further violent or sexual offences if released. The independent Parole Board, when not directing release, is concluding that the risk to the public is too great for these people to be safely managed in the community. Our duty of care is not only to the IPP prisoners but to the members of the public who may become the next victims of their violent behaviour. I acknowledge that recent reports on the sex offender treatment programmes have indicated that between 2000 and 2012 reconviction rates were higher for sexual offending in respect of those who had undertaken the programmes. By the time that those results were published, Her Majesty’s prison and probation services had already taken the decision to cease delivery of those core programmes and have accelerated the transition to what are called the Horizon and Kaizen programmes.

Queen’s Speech

Lord Brown of Eaton-under-Heywood Excerpts

Wednesday 28th June 2017 Lords Chamber

[Lord Brown of Eaton-under-Heywood (CB)]

My Lords, I shall confine myself to the three amendments being proposed to this Motion.

As a remainer, I confess to great sympathy with the proposal from the noble Lord, Lord Armstrong, but regretfully, although the tide of popular opinion may indeed be starting to turn in its favour, I fear that too few people will come to recognise, before it is too late to reverse the Article 50 process, just how damaging to our interests Brexit could be. Therefore, I cannot see the proposal as practical politics. Both the main parties support Brexit and the Liberals have hardly benefited from opposing it.

On the proposal from the noble Baroness, Lady Hayter —not least that the Government deliver “the exact same benefits” as we currently have in the single market and customs union—I make two brief comments. First, on her proposition that,

“no deal is the worst possible deal”,

surely not. Of course no deal would be awful, but unless one is simply unable to imagine a set of terms even worse—perhaps the so-called “punishment deal”—there must inevitably be circumstances in which negotiations will fail, and this is no more than the Union itself recognised in its published negotiation guidelines. They state that the Union,

“will be constructive and strive to find an agreement. This is in the best interest of both sides. The Union will work hard to achieve that outcome, but it will prepare itself to be able to handle the situation also if the negotiations were to fail”.

So too should we prepare ourselves.

The second point to make on the proposal from the noble Baroness, Lady Hayter, is that it strikes me, dare I say it, as nakedly opportunistic. It calls for the obviously unattainable. It is the last word in having one’s cake and eating it. It is based, of course, on a number of absurd pre-referendum assurances by some Brexiteers. No doubt it makes political sense—but in reality, it makes none.

I come to the regret Motion of the noble Lord, Lord Adonis, which, as I understand it, essentially calls on the Government to accept that our route out of the EU should be by way of reasserting EEA membership rights—in the future as a non-EU member, such as Norway, Iceland and Leichtenstein. We would thereby continue to enjoy full participation in the single market. That is the route recently canvassed by the noble Lord, Lord Owen, and, in last Thursday’s debate, by the noble Lord, Lord Howell.

Until recently, I confess to having shared the widely held view that the Norwegian option is the worst of all worlds, involving all the liabilities of EU membership without even a seat at the table. Let me now make seven necessarily brief, and perhaps oversimplified, points to the contrary.

First, EEA membership would avoid the cliff edge and give us time to negotiate more satisfactory, long-term trade relations with the rest of the Union.

Secondly, the rights of free movement would be less absolute than at present, there being in the EEA no concept of common citizenship, as in the EU. The right relates not to persons generally, but rather to workers, with certain limited derived rights for their families. It provides, therefore, some scope for restrictions on immigration.

Thirdly, we would recover control of our fishing grounds and agriculture, being no longer subject to the common fisheries and agriculture policies of the EU.

Fourthly, our contribution to the EU budget would be smaller and, to a significant degree, would depend on whether we choose to join various programmes that require funding.

Fifthly, EEA states retain full sovereignty. Unlike in the EU, Brussels legislation has no direct effect; rather, all legislative change relevant to the EEA—on which the EEA states will already have had the chance to comment—has to be approved, first by the EEA states collectively and then by each such state’s national parliament.

Sixthly, the EEA does not forbid trade negotiations with other countries. In other words, we would be able to pursue free trade agreements on a global basis. Dr Fox and his team would be in business.

Seventhly, and finally, we would no longer be subject to the jurisdiction of the ECJ. I happen to think, in common with the noble Lord, Lord Wallace, and others, that the ECJ has been absurdly and unfairly demonised by Brexiteers, and that it is a huge mistake to make ending subjection to that court, particularly in the context of future supranational relations—the European arrest warrant and so forth, as the noble Lord explained—a red-line issue. In any event, in the EEA that objection is substantially met. In the EEA, the broad equivalent of the ECJ is the EFTA court, and while certainly that court takes full account of the ECJ’s jurisprudence, there are two important differences. First, the national supreme courts of EFTA states are not obliged to refer questions of EU law to that court; and secondly, unlike preliminary rulings of the ECJ in EU countries, EFTA court decisions are, strictly speaking, advisory only and not legally binding in the national court.

Taking those points cumulatively, I suggest that this solution gives effect to the referendum result, meets the Brexiteers’ core objections to continuing membership and maximises the prospect of a successful long-term future.

IPP Prisoners

Lord Brown of Eaton-under-Heywood Excerpts

Monday 20th February 2017 Lords Chamber

Asked by

[Lord Brown of Eaton-under-Heywood]

To ask Her Majesty’s Government what is their response to the recommendation of Michael Gove, the former Secretary of State for Justice, in his November 2016 Longford Lecture that the approximately 500 Imprisonment for Public Protection (IPP) prisoners “who have been in jail for far longer than the tariff for their offence” should be released.

[The Advocate-General for Scotland (Lord Keen of Elie) (Con)]

My Lords, we estimate that there are approximately 200 IPP prisoners who have served longer than the maximum term available for their offence. Release of IPP prisoners is a decision for the Parole Board, made on the balance of risks the offender poses to the public. To improve the efficiency with which IPP cases pass through the parole system, a new unit has been established within the Ministry of Justice, working closely with the Parole Board.

[Lord Brown of Eaton-under-Heywood (CB)]

That is a disappointing if unsurprising Answer, and apparently an answer to an earlier question of mine about prisoners who had served beyond the maximum term. This refers to those who have served way beyond their tariff term. Would not the Minister agree that there comes a point in the life of an IPP prisoner, even if he cannot persuade the Parole Board that he will never reoffend, when he has served so many years—seven, eight, nine, 10—beyond his tariff term that simple justice demands his immediate release?

[Lord Keen of Elie]

The noble and learned Lord raises a complex and difficult problem. It was said previously that this sentencing policy was the legacy of a Labour Government. That is unfair. It was a wrong turning in sentencing policy undertaken with the best of intentions which fell victim to the law of unintended consequences. Successive Labour, coalition and Conservative Governments have wrestled with a simple solution to a complex question. If we were going to resolve this matter as simply as the noble and learned Lord suggests, we would not start from where are at present.

Press Regulation (Communications Committee Report)

Lord Brown of Eaton-under-Heywood Excerpts

Tuesday 20th December 2016 Lords Chamber

[Lord Brown of Eaton-under-Heywood (CB)]

My Lords, I should perhaps start by noting that I was one of the committee of five which appointed IPSO and its chair, Sir Alan Moses, an old friend and colleague, and someone in whom I had and have full confidence. He is someone of robust independence and absolute integrity, and no respecter of persons.

In response to the title of this debate, so brilliantly introduced by the noble Lord, Lord Best, it would be my basic contention that we are now in a reasonably good place—certainly one that would be worsened rather than bettered by bringing Section 40 into force. This debate, fortuitously perhaps through its long delay, clearly feeds neatly into the ongoing consultation process on Section 40 and Leveson 2. I hold no particular brief for the press, least of all the Daily Mail. How could I when it published an outrageous piece so recently on judges—“Enemies of the people”, if you please? But I gently point out to the House that even in the fanciful event of the Mail signing up to Impress, there would be no sanction for headlines of that sort. The brief I hold is not for the press, but it is strongly for freedom of expression, subject only and always to the laws of the land, civil and criminal.

Section 40 was of course passed in the wake of the hacking scandal, the revelations of which shocked the nation.

In the febrile atmosphere that followed Leveson, the political parties reached agreement on a detailed future regime for press regulation, Section 40 being, as the noble Lord, Lord Best, described, designed as carrot and stick to cajole—one could say, to bribe and bully—the press into signing up to an ultimately state-approved regulator, something not easily seen as self-regulation.

Hacked Off, whose members include some, like the noble Baroness, Lady Hollins, for whom I have the most profound respect—

[Baroness Hollins]

Excuse me. I am not a member of Hacked Off. Hacked Off does not really have members. It has advised and briefed me, and it represents victims, but I am not a member of Hacked Off.

[Lord Brown of Eaton-under-Heywood]

Forgive me, that is my mistake and I stand corrected, but I hope that the noble Baroness will allow me to say that she is, so to speak, entirely sympathetic to its approach. One understands that; she has an understandable grievance against the press for its appalling treatment of her. Hacked Off was involved in the agreement. I do not know whether the press was that closely involved but, in all events, although there are those who say that an agreement is an agreement and that it must now be fully honoured by activating Section 40, I respectfully disagree. I give just four brief reasons why.

First: can anyone doubt that life for newsprint publishers is becoming ever harder? There are ever fewer readers and, perhaps, more importantly, ever fewer advertisers, as online competition becomes ever more successful. Of course, Leveson regulation does not extend in the same way to online material. Secondly, not only have the courts shown themselves well able to deal with hacking and other criminal behaviour, with regard to the civil law, the right to privacy is becoming increasingly entrenched. Prior to the Human Rights Act, there was no right to privacy under English law, but now, one has only to consider Max Mosley’s case, in which he was awarded £60,000 damages against the press for an unjustifiable invasion of privacy, as the court held—your Lordships will need no reminding of the particular circumstances of the case—to see how far privacy law has come. That said, it is perhaps something of an irony that it is now Max Mosley’s money that is behind Impress, with its guarantee of four years of cheap arbitration.

Thirdly, when Section 40 was enacted, the PCC was still the only regulator in town. It was regarded by many as toothless and ineffectual. I suggest that IPSO is an altogether more effective, powerful body. It is now well established, widely respected and already trialling its own arbitration scheme. Its editorial code is wholly unexceptionable and, for good measure, following Sir Joseph Pilling’s report, to which the noble Lord, Lord Lexden, referred—quite unjustifiably rubbished as a whitewash—Mr Dacre has now retired from the code committee. As Peter Preston, a most respected ex-editor of the Guardian recently wrote in the Observer:

“Ipso, if you look hard at the detail, has made a pretty good stab at improving voluntary regulation. Set the Ipso and Impress editorial codes side by side and no one can see much difference. Apply those codes to current cases and there’s no obvious gap either. The problem for Ipso isn’t performance but perception”.

Fourthly, the FT and the Guardian are of course entirely self-regulating, declining to sign up even to IPSO. The great majority of newspapers, however, have signed up to IPSO, but they have made it crystal clear that under no circumstances will they agree to regulation by a recognised body. They are, as Sir Alan Moses first put it, “theologically opposed”. They see it, and it is widely seen by many abroad, as a form of state control. The Section 40 carrot has plainly failed to seduce the press into the Impress scheme. Do we therefore now want to watch as the stick is applied? Judges already have very considerable discretion with regard to costs orders. Are we really intent on punishing newspapers which, as a matter of principle, are simply not prepared to be regulated by Impress? Do we want war?

This being Christmas week, I hope your Lordships will indulge me if I finish my speech with a brief reminiscence about one of my own old cases. I promise that it is of some slight relevance. Over a quarter of a century ago, I presided in a jury trial at the Royal Courts of Justice over what was then a very high-profile libel case involving the late Robert Maxwell who was suing Private Eye. Mr Maxwell was complaining of a piece in the Eye which he said insinuated that he— Maxwell—had been trying to bribe Neil Kinnock, then leader of the Labour Party, with free holidays and the like, into recommending him for a peerage. The thrust of his complaint was that he was falsely being alleged to be corruptly attempting to get a peerage. Well, the case was opened at great length, as all these cases always are, and the witnesses started going through the witness box, and the case proceeded. On the fourth day, when I came back from lunch in the Inn of Court, Middle Temple, I found a note from the jury which read simply, “Please sir, can you tell us what a peerage is?”.

There it was. We were four days into the case and I solemnly had then to explain the nature of a peerage and what was the underlying complaint. The next day I went back to lunch and could not resist telling my fellow benchers of the remarkable thing that not a single one of the jury of 12 knew what a peerage was, to which one rather dry old judge said, “That doesn’t necessarily follow. One of them might have known and explained it to the others and been flatly disbelieved”. It is fair to say that this was before the great reforms of 1999. It did not do much to improve my faith in juries.

I should note that Mr Maxwell, before his roguery was uncovered, won that case. The jury gave him £55,000 damages, of which £50,000 were exemplary damages; he promised to give the money to a charity but never did. I wonder what your Lordships think of Private Eye. I need hardly say that it has not signed up to regulation of any sort and never will. Do your Lordships want to mulct it in costs as well as in exemplary damages so as to eventually drive it out of business? For my part, I hope not. My plea therefore is: let things be; let well alone.

Imprisonment for Public Protection Sentences

Lord Brown of Eaton-under-Heywood Excerpts

Tuesday 11th October 2016 Lords Chamber

Asked by

[Lord Brown of Eaton-under-Heywood]

To ask Her Majesty’s Government how many people still serving sentences of imprisonment for public protection have been detained for longer than the maximum term of imprisonment otherwise statutorily prescribed for their offence, and what plans they have for the release of those people.

[The Advocate-General for Scotland (Lord Keen of Elie) (Con)]

The required detailed data are not routinely collected. However, an exercise to estimate the number of current prisoners sentenced to an IPP who have served beyond the maximum term available for their offence indicates that there are around 200 such prisoners. The independent Parole Board directs the release of a prisoner serving an IPP sentence who has completed his tariff only when it is no longer necessary on the grounds of public protection for the prisoner to be detained.

[Lord Brown of Eaton-under-Heywood (CB)]

I am grateful to the Minister for that somewhat sobering Answer. Given that statistic, given that the whole IPP scheme was abolished four years ago in 2012 as being inherently unjust, given that there are 600 to 700 prisoners serving years beyond their tariff terms—sometimes eight to 10 times as long—given that more than half of IPP prisoners self-harm, and given the recent excoriation of the system by an ex-Lord Chancellor, Kenneth Clarke, in a radio programme as being a “stain” on the system and its condemnation by the three last Lord Chief Justices, does the Minister agree that it is high time that steps were taken to bring this continuing scandal to an end?

[Lord Keen of Elie]

Steps are being taken to reduce the population of IPP prisoners. Indeed, in the last year the largest number did in fact qualify for release. The parole service carries out independent examinations for this purpose, and where IPP prisoners fail to respond at these parole hearings the National Offender Management Service has now brought in psychologists and policy experts to undertake a central case review of those IPP prisoners, in the hope that they can complete their tariffs and then progress to open conditions.

Civil Proceedings, First-tier Tribunal, Upper Tribunal and Employment Tribunals Fees (Amendment) Order 2016

Lord Brown of Eaton-under-Heywood Excerpts

Wednesday 20th July 2016 Lords Chamber

[Lord Beecham (Lab)]

My Lords, I intended to begin this speech by welcoming the multitasking noble and learned Lord, Lord Keen, to his first debate as a Justice Minister. It appears, however, from the published list of departmental Ministers that he is not in fact a Justice Minister but is, in effect, assisting the department. He deserves ministerial ranking within the Ministry of Justice and the House deserves that the spokesman for such a department should be accorded that status. The noble and learned Lord follows in the train of many distinguished Scottish Peers such as the noble and learned Lords, Lord Mackay of Clashfern, Lord Irvine of Lairg, Lord Falconer and Lord Wallace of Tankerness, to name but a few of those who are still with us. I am confident that the noble and learned Lord will not emulate the notorious 18th-century Scottish judge Lord Braxfield. He replied to counsel defending a man charged with sedition who observed that Jesus Christ was, like his client, a reformer:

“Muckle He made o’that—He was hangit”.

There is a biblical injunction which proclaims:

“Justice, Justice shalt thou pursue”.

To this the Government add an addendum: providing that thou canst pay in advance a fee equal to or greater than what would be required to ensure that the full cost or more of court and tribunal proceedings can be recovered for the benefit of the taxpayer. Access to justice, a principle which the Government purport to embrace, is however increasingly treated differently from access to other areas of public provision such as health or education, at least for the time being. Yet access to justice is crucial to the rule of law on which this country properly prides itself. Already eroded by savage cuts in legal aid and advice under the Legal Aid, Sentencing and Punishment of Offenders Act, it is now being eroded by a further round of significant increases in fees.

What makes matters worse is the way in which the Ministry of Justice has handled the issue. The latest round of increases was announced more than a year ago, subject to consultation. One of the most controversial areas has been that of employment tribunal fees, in relation to which the Government had last year commissioned a review, including a report on the impact of their earlier imposition of substantial charges, which they said would be completed by the end of 2015.

As paragraph 56 of the Justice Select Committee report pointed out, the review’s report was stated on 7 October by an official of the department to be in the hands of the Minister and that,

“it was hoped that the Minister’s position would be known by the end of the year”.

It was not. An FOI request for a copy of the report was declined on 29 December, with the comment:

“The review is currently underway and will report in due course”.

Successive requests were made to the then Minister, Mr Vara, on 9 February and 31 March, the latter seeking publication or at least the supply of a copy in confidence to the committee, without success. Nothing transpired and now Mr Vara has expired, politically speaking. Perhaps the Minister could tell us if and when the report will be published, for this is a sensitive and highly contentious area.

There has been, in the committee’s words, a “startling drop” in the number of applications as a result of the imposition of fees of the order of 70%. The committee was disinclined to accept as an explanation for this fall a greater reliance on conciliation, as to which the Senior President of Tribunals said that there was “clear behavioural material” indicating that employers were,

“avoiding engagement with conciliation processes”.

The committee concluded that the existing fee system,

“has had a significant adverse impact on access to justice for meritorious claims”,

not least in relation to claims by pregnant women for detriment or dismissal. What confidence, then, could one have in the range of new and increased fees imposed in this and other areas? There is to be an increase from £410 to £550 for divorce proceedings. Given that there is now no legal aid, this flat-rate charge will impact relatively more harshly on less well-off petitioners, at a time, of course, of acute emotional stress. The President of the Family Division, Sir James Munby, accused the Government of,

“battening on to the fact that there is a captive market”,

and,

“putting up the fees until it becomes another poll tax on wheels”.

Even more objectionable is the astonishing increase of 600% in fees to the Immigration and Asylum Tribunal—the original proposal was 100%, which is steep enough for some of the most vulnerable people here—which is likely, as the Law Society points out, to lead to more people overstaying illegally and risking criminal prosecution. Even under the present system, fees were remitted in only 5,600 cases, out of 41,000 applications. Then we have a 10% increase in the fees for civil claims, increases in fees levied in tribunals such as the general regulatory chamber, the property chamber and the tax chamber, and the particularly invidious increase in the fees for judicial review proceedings, where, after all, the Government themselves might well be the defendant. At the other end of the spectrum, the Justice Committee warned that increases in fees for money claims might well damage this country’s interests as a leading provider of legal and judicial services to foreign litigants, and thereby be self-defeating.

It was interesting to read the speeches of two Conservative MPs when this order was debated in the Commons. In addition to the forensic exposition of the chair of the committee, Bob Neill, John Howell criticised the Government’s failures to discuss changes with the judiciary and to adduce evidence for their proposals. Victoria Prentis endorsed the Justice Committee’s critique and referred to the 31-page guidance booklet provided to claimants seeking fees remission as exemplifying the problem. Research by Citizens Advice has demonstrated that only 29% of employment tribunal applicants were even aware that there was a remission scheme.

This is not the only area of the Ministry of Justice’s responsibilities in which such changes and increases in fees are being made. The Government are proposing substantial increases in probate fees for estates over £50,000, which will increase from a flat rate of £215 on estates over £5,000, to £20,000 on estates of £2 million or more, an increase of 9,200%. Currently the cost of running the Probate Registry is £42.5 million, and the fees produce £41.5 million. Therefore, it virtually pays for itself, and it is disingenuous to suggest that the increase in probate fees is in any way related to full cost recovery. If the Government wish to raise the £250 million they plan to receive from this fee increase, they should do so by adjusting inheritance tax by an appropriate percentage. This would avoid the ludicrous outcome of the new level of fees for an estate of £2 million being the same as for an estate of £20 million or £200 million.

In addition to the impact of the financial changes embodied in this order, we must not forget the issues raised last week when the noble and learned Lord, Lord Woolf, secured a debate on the impact on the rule of law of the cuts imposed on our justice system. One significant area of concern was the growth in the number of litigants in person, which leads to delays, adjournments and longer hearings, substantially reducing the efficiency of the system. These problems are worsened by the reductions in court staff, with full-time equivalent numbers down from 17,829 in 2013-14 to 16,286 in 2015-16, a reduction of 10%.

The Government’s record over access to justice, which stretches back to the coalition period, has favoured the interests of the powerful, from employers to insurance companies and others, as the cuts to legal aid and their actions over fees testify. Moves towards fixed costs in civil claims and clinical negligence cases echo the same approach. It will be interesting to see whether the Prime Minister’s claims for compassionate conservatism translate into action. The Government’s justice policies will provide an early test. I beg to move.

[Lord Brown of Eaton-under-Heywood (CB)]

My Lords, this is the third time the Lord Chancellor has exercised the power afforded by Section 180 of the Anti-social Behaviour, Crime and Policing Act 2014 to prescribe what we all know now as enhanced court fees—fees which exceed the cost to the Courts & Tribunals Service of doing that for which the fee is being charged. On each occasion, the draft order has attracted, as today, a regret Motion in this House, and each time I have spoken to support that regret Motion. On the last occasion, on 15 March, I was the only speaker in the debate apart from the noble Lord, Lord Beecham, who moved the regret Motion, and the noble Lord, Lord Faulks, who resisted it. Today, alas, the noble Lord, Lord Faulks, is no longer in his place, but we are of course lucky enough to have as his replacement the noble and learned Lord, Lord Keen, who is a personal friend—I hope I am allowed to say this—and indeed a neighbour.

That said, with a new Lord Chancellor now in office—one perhaps not overburdened with previous experience of issues concerning the rule of law and access to justice—I return briefly to some of the things I said about the earlier enhanced court fees orders. First, there is a real case to make for objecting even to the principle of full cost recovery. The justice system exists for the benefit of society as a whole, and one may reasonably question why courts should be any more liable to self-finance than, for example, the police service, the fire service or any other public service. But put that thought aside: enhanced fees go altogether further than mere full cost recovery, and are hugely more objectionable. By definition, they are calculated—in both senses—to make a profit. They amount, realistically, to selling justice—on the face of it, contrary, as we all know, to Magna Carta, but regrettably now sanctioned by Section 180 of the 2014 Act.

As I observed in earlier debates, that Christmas tree of an Act contains 186 sections and 11 schedules, and occupies no fewer than 232 pages of the Queen’s Printer’s copy of the legislation, so it was small wonder that by the time we got to Clause 180, our usually impeccable and meticulous scrutiny of legislation had perhaps become somewhat lax and careless. The Government seek to justify enhanced fees on the basis that they are needed, according to paragraph 7.2 of the Explanatory Memorandum for the previous order,

“in order that access to justice is protected”.

But this rationale is, I suggest, entirely disingenuous, as it effectively turns that vital principle on its head. Of course Her Majesty’s Courts & Tribunals Service must be funded properly, so that it provides access to justice. But it manifestly does not follow that any part of that funding should be achieved by profiteering from certain selected parts of the service, least of all when that profiteering will hinder access to justice by discouraging at least some of those who would otherwise use these selected services.

Lord Dyson, Master of the Rolls, who retires next week—I express the hope here today that his courtesy title will be speedily translated into a full Cross-Bench peerage—in his oral evidence to the House of Commons Justice Committee on enhanced fees, emphasised that access to justice is the critical point here, and that,

“ordinary people on modest incomes … will inevitably be deterred from litigating”.

As the Justice Committee concluded in paragraph 46 of its report,

“the introduction of fees set at a level to recover or exceed the full cost of operation of the court requires particular care and strong justification. Where there is conflict between the objectives of achieving cost-recovery and preserving access to justice, the latter objective must prevail”.

How right it plainly is. As for the particular enhanced fees proposed by this order, I can find no “strong justification” for them, not by reference to the particular services for which it is proposed to exact them, still less by reference to the principle of access to justice. The order is indeed to be regretted. If the House is divided, I shall certainly support the amendment.

Extradition: UK Law and Practice (Extradition Law Committee Report)

Lord Brown of Eaton-under-Heywood Excerpts

Wednesday 16th September 2015 Grand Committee

[Lord Brown of Eaton-under-Heywood (CB)]

Like others, I start by paying tribute to the noble Lord, Lord Inglewood, for chairing our committee with such assiduity, sagacity and unfailing good humour, and to our wonderful clerk, James Whittle, and those who assisted him, not least our legal adviser Charlotte Powell. They all played essential roles in enabling us to complete this very complex inquiry in the required time, producing, as I believe, a sound and convincing report.

I came to this inquiry having been involved in extradition law over a considerable number of years, largely as an appellate judge. Indeed, I declared an interest as such in the report. Having observed this both as a judge and now on this committee, I can genuinely say that between them, Parliament and the judiciary have achieved what is substantially a fair and appropriate balance between, on the one hand, the public interest in extradition, and on the other the rights of those for whom extradition is sought, including not being unreasonably subjected to the trauma of forcible removal for trial abroad.

The public interest in extradition is, as the courts have often been at pains to explain, constant and weighty. Those accused of crime should ordinarily be brought to trial. The UK should honour its treaty obligation. In an ever contracting world it is ever more important to combat cross-border crime and fugitives. There should be no safe havens. Extradition is not the process for determining guilt or innocence, but only whether the suspect should be brought to trial. Therefore, the old adage, “Better 10 guilty men go free than one innocent person be convicted”, simply has no application in this context.

One must acknowledge, however, that this interest can on occasion, if only rarely, be outweighed by certain very real concerns on behalf of the suspect. The possible defences—bars to extradition—are set out in our report at paragraph 19, but they above all revolve around human rights concerns as defined in the European Convention on Human Rights. Of course, Part 2 countries are not subject to the convention, but the convention it is that provides the touchstones by which our domestic courts decide on the propriety of extradition, both to Part 1 and Part 2 countries.

Before turning to two particular matters on which I shall touch in a little more detail, I want first to suggest what seem to me certain basic truths about the operation of extradition which I think the wider public sometimes overlook. I have already mentioned one: that extradition is not the trial process but merely the mechanism for ensuring that those accused of crimes stand trial, the closest analogy being perhaps domestic pre-trial custody. An accused here may forcibly be detained in prison, even though untried and still therefore presumed innocent. Secondly, if we in the United Kingdom refuse to extradite accused persons to, say, Russia or Turkey—as indeed we do, since we cannot be satisfied that they will be treated humanely on being returned—two consequences have to be recognised. First, we will thereby be providing a sanctuary for the criminals of those countries who manage to flee here. Secondly, those countries may well in turn reciprocate by refusing our requests to them to extradite, very possibly, UK nationals back here.

Extradition is based on mutual trust and respect, and extradition proceedings must therefore accommodate legal and cultural differences between all sorts of different legal systems. Naturally, we think that our own criminal justice system is best, but we cannot insist on all other countries following the same procedures. Let us take the USA’s practice of plea bargaining. We may think that it is carried to such lengths as to put defendants under too great a pressure to plead guilty even if they regard themselves as innocent. But we have to recognise this: if on that basis we held that the practice of plea bargaining constitutes an abuse of process, we would have to refuse to extradite not only our own citizens to the United States but any United States citizens who were here, however guilty. As we point out at paragraph 442 of the report,

“the UK would speedily become a safe haven for all those seeking impunity for crimes in or against the US”.

That brings me to the first of the two matters I want to touch on a little more particularly: our extradition relationship with the United States, which others have already addressed. I should perhaps mention at once that I gave the sole judgment in the appeal committee in this House in 2008 in the case of McKinnon, which we summarise at pages 132 to 135 of our report. It is perhaps among the more high-profile of the many vexed cases involving the extradition of UK nationals to the USA for offences which, although of extraterritorial effect and therefore triable on an extraterritorial basis, were substantially committed in the UK. There was huge public misconception about that case.

First, it was suggested that all Mr McKinnon was doing on his attic computer in London was searching for UFOs. However, his confession to disrupting American security systems was on the basis that he considered that the US Government were sponsoring terrorism. Secondly, it was claimed that he faced a sentence of decades in prison—50 or 60 years—if he pleaded not guilty but was convicted, whereas in fact the indications given to him were that he could expect a sentence of three to four years on a guilty plea, or eight to 10 if he fought and lost the case.

Thirdly, as is of course well known, the Secretary of State ultimately decided not to extradite him because by then he had been diagnosed with Asperger’s. However, that diagnosis came after the appeal hearing before us, during which no question had arisen at all about his health. In 2013 the law was changed to pass the responsibility for consideration of such late human rights concerns from the Home Secretary to the courts, and our committee, rightly, fully endorsed and supported that change. Surely, extradition should be kept out of the political arena and left entirely as a judicial process.

The overall conclusion we came to is that there is no basic imbalance or unfairness in the operation of the UK-US extradition treaty. We agreed entirely with the Sir Scott Baker review in that regard. However, as others have mentioned, we concluded that those extradited to the US, even if at low risk of being violent or absconding, may on occasion be too harshly treated—for example, being unnecessarily handcuffed or even chained in flight or detained in high-security conditions because, as non-US citizens, they can offer no suitable bail address.

The noble Lord, Lord Inglewood, has already addressed the question of securing from the authorities some suitable memorandum of understanding to deal with these concerns. I add only the following, which brings me to the final point I want to touch on: Article 8 of the convention. If indeed it is impossible to secure any suitable memorandum of understanding or undertaking from the United States, or from any other relevant state whose processes give rise to the same concerns about such pre-trial treatment, that could well affect the court’s view and tip the balance in a particular case against extradition.

Article 8 has assumed—the witnesses were very clear about this—increasing importance as a possible bar to extradition, in particular since the decision of the Supreme Court in HH and linked cases. In 2012 my noble and learned friend—then Lord Chief Justice—Lord Judge was party to that case; indeed, I think it was my very last case in that court. It is still rare for Article 8 to successfully be invoked in such cases. However, it enables the court to look at a case in the round and decide whether the gravity of the alleged offending and the overall interests of honouring extradition agreements and combating cross-border crime truly justify the huge disruption of life sometimes involved in a person’s extradition. Although Parliament has now introduced into our law certain specific provisions about forum and proportionality and so forth, very generally those same considerations will also come into play in determining an Article 8 claim.

Our report deals with these matters at various places, but I draw particular attention to paragraphs 172 and 173. Unlike some countries, the UK extradites its own nationals. However, there may well be different considerations in play in two different cases: for example, that of a foreign national who has committed an offence in his home country and then fled to the United Kingdom, and whose extradition is sought from here back home; and, on the other hand, that of a UK national who has never left this country but whose extradition is now sought for trial on an extraterritorial basis, his crime having impacted abroad. In the former case, the suspect’s private and family life is abroad anyway and will not seriously be interfered with by extradition. But as the noble Lord, Lord Hart, has pointed out, the UK national, if extradited, will be separated from his home, family, friends and support systems. He will be sent abroad where he may have no ties or support at all, very possibly with no bail address, and without any understanding of that country’s legal system and customs, and perhaps even their language. There is surely some considerable difference between those cases. Paragraph 173 of our report suggests that in the latter case the court should be “particularly astute” in ensuring that extradition really is the appropriate course and that,

“the forum bar has been fully explored … all relevant Article 8 arguments have been fully evaluated to ensure that extradition is not disproportionate”,

and—this reverts to the point about the USA—

“consideration has been given to the possibility of obtaining assurances as to … the prospects of pre-trial bail; and … the transfer back to the UK of at least part of any eventual sentences”.

The report covers a host of issues, most of which one could wax lyrically on—or not, as the case may be—but I propose to say no more. I believe that the report should be allowed to speak for itself, and I respectfully commend it to the Committee.

Queen’s Speech

Lord Brown of Eaton-under-Heywood Excerpts

Monday 1st June 2015 Lords Chamber

[Lord Brown of Eaton-under-Heywood (CB)]

My Lords, I, too, congratulate the noble Lord, Lord Dunlop, on his distinguished maiden speech and look forward to the two further maiden speeches that we shall shortly hear.

The gracious Speech promises us new legislation that will, among other things,

“improve the law on policing and criminal justice”.

That is obviously a good idea. Indeed, quite a lot in the Government’s manifesto commitments seems to me to be sensible. However, I confess to a little unease at the commitment to “increasing sentence lengths” and, more generally, to “toughen sentencing”. I find positively disturbing the commitment to,

“continue to review our legal aid systems so that they continue to provide access to justice in an efficient way”.

Surely that is a euphemism for slashing the legal aid budget still further, if the past is anything to go by.

I say nothing today on human rights, although I cannot promise to be so forbearing in the future, and that ought not to be taken as any encouragement to the Government to go ahead with their tentative plans.

Nowhere in the manifesto commitments is to be found—it is this that I want to focus on exclusively today—any hint of a suggestion that now, at long last, the Government propose to deal with an ever-worsening stain on the criminal justice system in this country: the continuing incarceration of IPP prisoners; that is, prisoners subject to an indeterminate sentence for the protection of the public. They are detained under the long-discredited scheme, which was abolished three years ago, that had been introduced by the Labour Government with effect from April 2005.

As many of your Lordships will know, the cause of such prisoners has been championed over many years by the noble and learned Lord, Lord Lloyd of Berwick, who, alas, has just retired from the House. It is imperative that the sorry tale of those prisoners should not now be forgotten, and I want to remind the House today of the vice of leaving the many remaining IPP prisoners indefinitely detained.

It is not even as if primary legislation is necessary to secure their release. In the LASPO Act 2012, the legislation that finally abolished the whole scheme for such indeterminate sentences, express provision was made in Section 128 for the release of existing prisoners. The Lord Chancellor was given explicit power to amend the release test, but, regrettably, the last Lord Chancellor, Mr Grayling, consistently refused to exercise it. It is my fervent hope that the new Lord Chancellor will speedily come to recognise that justice cries out now for him to do so. I should briefly explain the basic scheme and the injustices which arise, particularly acute in the case of those who were sentenced in the first three years of the scheme before it came to be marginally improved in 2008 for its final four years.

As originally enacted, the scheme placed a duty on the court to impose this form of sentence on any offender convicted of a violent or sexual offence—and no fewer than 153 different offences were deemed to fall into that category—who had previously been convicted of a similar such offence. The judge had effectively no discretion whatever in the matter: he was bound to assume that the offender posed a risk of committing a further such offence in future. A prisoner then serving such a sentence could not be released until he later came to satisfy the Parole Board that his detention was no longer necessary for the protection of the public.

At the same time as imposing the IPP sentence, the judge was obliged to state what is called the tariff sentence; that is, the minimum term to be served before the prisoner could in any event be released, the tariff usually being one half of the determinate term judged appropriate as the sentence required to punish him for his wrongdoing. In the first three years of the scheme, the tariff could be, and frequently was, as little as just a very few months.

As I have indicated, in 2008 the scheme was modified in two relevant respects. First, an IPP could not thereafter be imposed except in the case of someone whose tariff term was more than two years. Secondly, the judge was no longer required to assume that the offender posed a risk of future such offending and was allowed to form his own judgment as to that.

Even thus modified, however, the scheme was rightly recognised by the Conservative Government in 2012 to be unfair and unworkable. It had caused thousands of offenders to be given what were effectively life sentences and it was then abolished. However, there remained and there still remain a large number of IPP prisoners, some of whom have now served up to 10 years’ incarceration for offences that in themselves may have deserved—and one sees it from their tariffs—a punishment of only a few months. There still remain more than 500 IPP prisoners, detained during the first three years of the scheme, with tariff sentences of under two years, and there are roughly 5,000 such prisoners left in the system as a whole.

This is nothing short of a form of preventive detention or internment, wholly alien and inimical to our entire system and sense of justice and tradition. It is imprisonment not as punishment but purely to protect against the risk that the prisoner may offend again. No doubt if the release test is softened—for example, if the Lord Chancellor were to specify as a new test that these prisoners must be released unless the Parole Board is satisfied that they represent a serious risk of grave offending—some would indeed, on release, then commit further offences. But that, I suggest, is a price we must be prepared to pay to restore a sense of basic justice to the criminal justice system. I ask the noble Lord, Lord Faulks, whose return we all so greatly welcome, whether he will at least agree to bring this question—this scandal, as frankly it is—urgently to the attention of the new Lord Chancellor.