Queen’s Speech

Lord Marks of Henley-on-Thames Excerpts

Thursday 9th May 2013 Lords Chamber

[Lord Marks of Henley-on-Thames]

My Lords, I welcome proposals in gracious Speech for legislation to reform the way in which offenders are rehabilitated and the introduction this morning by my noble friend the Minister of a Bill to that effect. Liberal Democrats have always believed that increased concentration on the rehabilitation of offenders can be a major contributor to cutting crime. A wider use of well run and well resourced community sentences can be far more effective than putting ever more offenders in prison and keeping them there for terms that are longer than necessary. Considerable publicity has been given to the appalling reoffending rates for people leaving prison, but the figures bear repeating. More than 57% of prisoners released in 2010 from sentences of less than 12 months reoffended within a year; the figure for prisoners released from longer sentences over the same period was just under 36%. In particular, as my noble friend Lord Dholakia pointed out, we imprison far more women than we need, and there is evidence that many of those we imprison would be less likely to reoffend if given community sentences.

The coalition Government propose to provide greater diversity of probation services in the belief that a wider range of well targeted services, involving the voluntary and not-for-profit sectors, as well as those currently in the probation service, will produce more imaginative and more effective delivery of community sentences and a better service for offenders leaving prison. However, for these new arrangements to work well, they must be properly resourced. Payment by results can be successful, but wider savings to the public purse from cutting reoffending rates, not so easily recognised by traditional Treasury accounting principles, may justify a more flexible approach to expenditure in this field. The points made by the noble Baroness, Lady Howe of Idlicote, lead me to stress the importance of retaining the service of experienced probation officers within the field, even if they are to work within new structures.

We welcome the Government’s proposals to give support for the first time to prisoners leaving prison after serving sentences of 12 months or less. However, to achieve the best chance of rehabilitation on leaving prison, prisoners need somewhere to live, something to do and preferably family to go to. Many also need medium and long-term help with mental health problems and drug and alcohol dependency. It follows that if we are to help prisoners settle back into the world outside prison, we must ensure that at least the last few months of their sentences are served at locations close to the communities into which they are to be released. Only then can through-the-gate services be effective. The gate in question must be in the right place to enable the care given to prisoners to be continuous through their preparation for release and following their release.

However, for the Government’s plans for rehabilitation to work, we must continue to provide a fair and humane criminal justice system in which offenders are properly represented by high-quality specialist advocates. I declare an interest as a practising barrister, although not now undertaking criminal work, but with many colleagues who do. Just as the quality of justice in criminal trials depends on the quality of the advocates involved, so the success of sentences imposed on offenders depends heavily on the contribution of defence barristers and solicitors in securing sentencing decisions for their clients that can be made to work. It is therefore important on both counts that we do not undermine the system by reducing the availability of high-quality lawyers prepared to undertake criminal work, particularly defence work, at modest but viable cost. I fear that some of the Government’s proposals for criminal legal aid, on which they are consulting, threaten that availability. The proposals for price competitive tendering and generalised fee cutting present such a threat. I expect that my noble friend Lord Thomas of Gresford will go into greater detail later.

Lawyers, particularly barristers, have in the past been attracted to criminal practice by the opportunities for advocacy, the challenges and the excitement of working in the criminal courts and a strong sense that they are performing an important societal function. Traditionally, they have been prepared to accept far lower rewards than they might have earned in other fields of practice. However, there is a limit, and the brightest and best new entrants to the profession will not opt for criminal work if it is so underrecognised and underrewarded that it does not offer them a reasonable living. They will simply opt for other fields, perhaps less glamorous but financially more rewarding. After all, they have a choice. Already most criminal judges complain that there has been a significant decline in standards of advocacy in the criminal courts over the past few decades because of the continual rounds of real terms cuts in criminal legal aid rates. Creating a demoralised corps of underfunded criminal lawyers will not only undermine our criminal justice system, it will also prevent us making the most of the other changes the Government propose.

I suggest that there needs to be a new settlement between the legal profession and the Government on legal aid. The Government must recognise the importance of retaining the services of legal aid lawyers and paying them appropriately while the legal profession must accept the need to provide services efficiently and cost-effectively and to look for savings where they can be made. I give one example of where innovative thinking might save money. The Government have rightly pointed out the disproportionate amount of public money spent on high-cost criminal cases. These are a small number of long-running and complex cases, mostly fraud cases, which consume a very high proportion of the legal aid budget. They require detailed and careful work by senior and specialist lawyers. They are the interesting and challenging cases which many ambitious younger criminal lawyers aspire to undertake. Yet the consultation paper’s response has been to suggest cutting the rates paid by 30%. The effect of such cuts would be that these cases would be less well handled, aspirant lawyers would be further deterred from criminal practice and the quality of the criminal justice system would suffer accordingly.

Many of these cases involve company directors and officers, many of large and medium-size companies. We could consider funding the defence costs in an entirely different way. Were we to introduce compulsory legal expenses insurance to cover the defence costs of company directors and officers prosecuted for fraud, a great deal of cost could be removed from the system altogether. We do not object to compulsory insurance for motorists; why not here? There are other areas where innovative thinking can save money and government and the profession should be willing to explore them. However, the endless drive to reduce spending by indiscriminate salami slicing of legal aid rates will ultimately destroy the system we are trying to improve.

Queen’s Speech

Lord Marks of Henley-on-Thames Excerpts

Tuesday 15th May 2012 Lords Chamber

[Lord Marks of Henley-on-Thames]

My Lords, I shall use my time to welcome the commitment to introduce legislation to protect freedom of speech and to reform the law of defamation. I was a member of the Joint Committee on the draft Defamation Bill under the excellent chairmanship of my noble friend Lord Mawhinney, who guided us and the many witnesses who gave evidence to us courteously and patiently but always incisively through some difficult areas.

Not only will the Bill implement the commitment in the coalition agreement mentioned by the Minister to revise our libel laws to protect freedom of speech, it will build on the firm cross-party consensus on the Joint Committee, which produced a unanimous report in favour of reform. The driver of reform is a general and justified view that the present operation of the law on defamation inhibits free speech.

There are a number of areas of particular concern. The first is that libel litigation—or, more insidiously, because it cannot be statistically measured, the threat of such litigation—can be and is frequently used to stifle discussion and legitimate criticism: the so-called chilling effect. The second is that the present threshold of seriousness for cases is far too low, which adds to the chilling effect, threatening scientific and academic debate in particular. The third is that the cost and complexity of defamation proceedings present insuperable obstacles to people of modest means who are therefore unprepared to risk or resist libel proceedings even when they are in the right. Fourthly, as my noble friend Lord Thomas of Gresford mentioned, recourse to the English courts, or the threat of such recourse, has encouraged potential claimants to bring or threaten proceedings in this country which are not in fact suitably at home in this jurisdiction. On the other side of the balance between free speech and reputation, there is concern that the same obstacles that inhibit freedom of speech are faced by individuals of modest means who are themselves defamed and have no chance of invoking the law to assist them to protect or recover their reputations.

The chilling effect is addressed in several of the provisions of the Bill published in the House of Commons last week. The raising of the threshold for bringing claims by the serious harm test; the honest opinion defence; the single publication rule; the privilege for peer-reviewed academic or scientific statements; and the new statutory defence of responsible publication in a matter of public interest will do much to reduce the chilling effect, helping to prevent frivolous or trivial claims being brought or threatened which inhibit free discussion.

I add one point here. It can be and has been argued, particularly in relation to the serious harm test and the responsible publication defence, that the common law was improving already and that the courts have been rejecting more trivial cases and have developed the Reynolds defence of responsible journalism. The argument continues that therefore codification in statute is unnecessary and—which is worse—that codification stifles the development of common law. However, that argument misses the essential point, which is that making the law accessible does not mean making it accessible to lawyers. Members of the public should be able to look at the law simply on the internet and get a clear idea of where the law stands from statute, not have to go to their lawyers to get a detailed analysis of the way the law is moving in the light of recent cases.

The cost and complexity of defamation proceedings needs to be addressed. The Joint Committee report went into some detail on this, and the Government’s response has been sympathetic. The restriction of jury trials to exceptional cases will go a long way towards making early resolution more achievable. The promise to introduce a more effective early resolution procedure involving the determination of meaning and the narrowing of the issues together with more effective case management, strengthening of the pre-action protocol and greater encouragement of mediation and other dispute resolution procedures should all help to reduce costs. However, one has to accept that going to law in defamation cases is never going to be inexpensive and that a great deal of work will be required to make the law more accessible in this area, over and above these statutory reforms.

One reform that I believe should be universally welcomed is the introduction of a general power in the court to order an unsuccessful defendant who loses defamation proceedings to publish a summary of the judgment against them. That answers the criticism that you cannot order a defendant to make an apology that is plainly forced and insincere, but recognises that the defamer who is successfully sued can and should be obliged to play some part in the vindication of the person who was defamed.

The Bill attempts to tackle internet defamation in a novel way. This is an area where legislation is very difficult. The Government have not accepted precisely the scheme suggested by the Joint Committee but I firmly believe that we are right not simply to admit defeat and say that it is all too difficult to strike a reasonable balance on the internet between permitting freedom of expression, on the one hand, and allowing those who are defamed an opportunity to have offensive and defamatory material taken down, on the other. The provisions for notices of complaint in the Bill and for website operators to have an opportunity to respond to them seem to be a sensible attempt to strike that balance. I look forward to debating those provisions, and others, in the Bill in due course.

Police: Custody

Lord Marks of Henley-on-Thames Excerpts

Tuesday 29th November 2011 Lords Chamber

[Lord Henley]

My Lords, I think the noble Baroness is referring to the Macpherson report, not the Scarman report. Allegations were made about institutional racism at that time. The police have addressed that matter and I do not believe that there is racism within the police service as a whole.

[Lord Marks of Henley-on-Thames]

My Lords, does my noble friend the Minister agree that confidence among ethnic minorities in the even-handedness of the police in keeping people in police custody would be greatly enhanced if we could improve our record of recruiting more black and Asian police officers?

[Lord Henley]

My Lords, again, that is something that I believe the police are managing to do in the 43 police forces up and down the country so that they better reflect the communities they serve. With the introduction of police commissioners, that, again, will be a matter that police forces will be able to continue to address in years to come.