Social Action, Responsibility and Heroism Bill

Debate between Lord Elystan-Morgan and Lord Hope of Craighead

Monday 15th December 2014 Lords Chamber

[Lord Hope of Craighead (CB)]

My Lords, perhaps I may return briefly to the point that I made in Committee, which is directed to the point made by the noble Lord, Lord Hodgson, about the solicitor advising—no doubt—an employer. The problem to which I drew attention was where somebody such as a fireman, police officer or some other person in the emergency services wanted to take the kind of action for the benefit of society that is talked about in Clause 2, but his superior officers said, “No, you can’t, because if you do that, my organisation is liable to be sued”.

My point is that Section 1 of the previous statute deals with outcomes and separates the outcome from the person who is being sued. The problem with this Bill is that it links irrevocably and inextricably the person who is being sued with the person who is acting. With great respect to the noble and learned Lord, Lord Lloyd of Berwick, I do not think that this clause and the section deal with precisely the same thing. I think that this is a much narrower clause, dealing with a particular part of the subject. Therefore, it just adds to confusion when we have an existing piece of legislation which covers all the aspects and is perfectly serviceable to then come along with something which covers only part of it.

When the Minister replies, I hope that he will say why the Government have not taken the opportunity to broaden this clause so that it covers precisely the same ground as the existing legislation, because to have two pieces of legislation, one half-baked and one dealing with the whole thing, just adds to confusion. It is a great shame to be invited to pass a measure of that kind.

[Lord Elystan-Morgan (CB)]

My Lords, the noble Lord, Lord Hodgson, with great force and fervour, invites the House to consider that a silver bullet from this place and the other place is perhaps not a bad thing at all. That may well be so, and both Houses are entitled to fire silver bullets by way of resolutions, debates and in a number of other ways, but not in their legislative capacity. That is really all that this issue is about.

There are only three areas of law—or at least there used to be when I was a law student a very long time ago—statute, common law and custom. If a statute is to have any purpose or meaning at all, it has to change to some extent one at least of those three areas. Custom can be left out of it; it is agreed universally that it does not change the content of a statute by one hair’s breadth. There was, I think, some dubiety in Committee about common law, but I honestly think that that is answered by a long-standing principle in our law—namely, that a statute to change the common law has to say so expressly on the face of it and to make it clear beyond peradventure or doubt that that is happening: otherwise, there is a presumption that the common law is not changed. I should have brought Maxwell’s Interpretation of Statutes along with me but I am sure that the Minister will accept that that is still a fundamental principle of our law. The right to legislate is a sovereign right and privilege to be used sparingly. It is not to be used for propaganda purposes.

Criminal Justice and Courts Bill

Debate between Lord Elystan-Morgan and Lord Hope of Craighead

Monday 14th July 2014 Lords Chamber

[Lord Hope of Craighead]

I want to add a footnote to the points made by the noble and learned Lord, Lord Phillips of Worth Matravers, based on my own experience. I became the Lord Justice General of Scotland about 25 years ago. At that time, one of the sentences that was available to a trial judge was a discretionary sentence that a person would be detained without limit of time. It was not a sentence of life imprisonment, but was in effect, as it was put in the case of young offenders, detention at Her Majesty’s pleasure; that is, at the discretion of the Secretary of State.

While I was holding that office, Strasbourg began to pronounce on the compatibility with Article 3 of that kind of system. It was decided in Scotland that the system was no longer maintainable, and what was required of me as Lord Justice General was to examine the cases of all those who had been given that kind of sentence to provide them with a tariff—or, in the Scottish terminology, a punishment part—which would set the date as from which their cases might be considered by the Parole Board. Until that was done, it had been entirely at the discretion of the Secretary of State, and it was thought that that was improper. The system that was devised was to require a judge to review such cases, recognising, as others have suggested today, that it would be incompatible with the convention for the decision to be left with the Secretary of State.

It was a very unpleasant exercise for me as the people who had received those sentences had committed the most appalling crimes. In comparison with life sentences, which sometimes were relatively simple, these people deserved the most condign punishment. Nevertheless, it was decided that they required some kind of certainty, removed from the discretion of the Secretary of State, so that they could plan their time in prison and there could be some method for review. It was not of course for them to be automatically released; that was not the point of it. It was so that their time in prison could be subject to a regime which would give them, as was said by the noble Lord, Lord Ramsbotham, some reason for hope that, possibly, in the very long term and in exceptional circumstances, they might be released.

The system being put forward in this amendment is therefore very similar in principle to one which was introduced about 20 years ago in Scotland to cure a similar problem about leaving the matter to the discretion of the Secretary of State. For that reason, I, too, support the amendment as being sound in principle.

[Lord Elystan-Morgan (CB)]

My Lords, seldom can there have been such an array of distinguished supporters for any amendment, and all I seek to add is some very short footnotes.

There are principles of immense worth and significance that are associated with this issue, one of them being, as so many speakers have pointed out, that there is no such thing as an irredeemable prisoner. I remember the very first day that I came here, which was about 33 years ago. A very distinguished judge had said that, in his vast experience, he had not thought that prison had reformed anybody at all. I remember thinking then about the exact wording of Rule 1 of the Prison Rules 1964. The wording was that the prime purpose of punishment should be the reform and rehabilitation of the prisoner. That is not now placed quite as high—it is now third on the list—but it still occupies a prominent place. To deny the prospect, remote though it might be, of redemption and the even more remote prospect of release—this will operate only in a very few circumstances—would be to deny one of the basic tenets of our concept of justice and punishment.

EU: Eurojust (EUC Report)

Debate between Lord Elystan-Morgan and Lord Hope of Craighead

Monday 4th November 2013 Lords Chamber

[Lord Elystan-Morgan (CB)]

My Lords, the matter before the House concerns only Eurojust, but it is clear that Eurojust and the EPPO have a very close nexus one to another. There are two ways of looking at that nexus: one is positive and the other is negative. It seems to me that the Government, and the Opposition for that matter—one is in the luxurious position on the Cross Benches of being able to say, “A mild plague on both your houses”—are approaching the matter from an utterly negative point of view. The Government have asked the question: is Eurojust in any way tainted by association with the EPPO? They answered yes; ergo, it must be rejected.

I argue that there is a forceful and utterly convincing case to the contrary. I am proud to say that I, too, am a member of Sub-Committee E. We have heard a great deal of evidence over the months with regard to European fraud. The official figure for fraud was €440 million or something of that nature. I do not think that anybody applied their minds to it properly, as the evidence was very different, appearing to range somewhere between €3 billion and €5 billion, possibly even in excess of that latter figure. Nobody was charged with overarching responsibility. That is where the case for the EPPO comes in. There is a saying in Welsh: “Everybody’s concern is nobody’s responsibility”. That is the situation here. Unless there is a body that is charged with the particular commission of looking at European fraud in a serious way, as has never happened before, I think that the whole system will be jeopardised to its very roots.

If one accepts that there should be an EPPO—and the noble Lord, Lord Hodgson, has pointed out that the objections are sere thin, casuistic and have no merit whatever—it seems to be the case that the Eurojust situation very much fits into that picture. It seems to me that the whole situation is tainted by the prejudices that have become so prevalent in the last few months in relation to Third Pillar matters. We have heard abundant evidence to show that it does not matter a row of beans what we do about 90 to 95 of those 130 measures, as most of them have virtually no effect upon our situation. One or two are of peripheral significance. Yet somehow or other the Government have managed to taint the whole situation by pretending that this is a massive battle for British sovereignty. In doing so, they are jeopardising something like 30 to 35 matters that are of crucial significance in so many different fields, and doing so cynically in order to pretend that we are somehow winning a great victory in relation to the 95 matters that never mattered at all.

I therefore very respectfully ask the Minister, whom I believe to be one of the most reasonable Ministers in government, to consider yet again whether he may be wrong in this particular matter.

[Lord Hope of Craighead (CB)]

My Lords, perhaps it is appropriate that someone who was not a member of this sub-committee should say a word or two about this issue. I come to this against the background of having been chairman of Sub-Committee E more than a decade ago, when Eurojust was just appearing on the horizon.

It is fair to say that initially there was a certain amount of suspicion as to whether it would be right for the United Kingdom to have any part to play at all, for reasons that are easy to understand: we have our own system for the administration of justice, our own prosecutors and prosecution system, which is so very different from that in the countries on the continent. However, I have kept an eye on this from a distance, and everything that has happened since then has supported the points that have just been made: Eurojust is beneficial and indeed essential to the battle against cross-border crime that we all must face up to. The only way to deal effectively with cross-border crime is cross-border co-ordination. The report says that pan-European co-ordination is required. Indeed, it is global co-ordination that is required.

From my position, based in Scotland, I would attach considerable importance to the evidence that was given by the Lord Advocate. I know that the Lord Advocate and his team have been closely involved in matters that lie at the heart of the Eurojust project. I will not mention names, but various issues have arisen where they have been hands-on in dealing with cross-border matters and the co-operation that is available through Eurojust has been absolutely crucial to the way in which they have been able to carry out their work. I do not think that anyone in the justice system in this country would have any doubt that Eurojust is beneficial and something that we should continue to support and be part of.