Criminal Justice and Courts Bill

Debate between Lord Marks of Henley-on-Thames and Lord Beecham

Wednesday 23rd July 2014 Lords Chamber

[Lord Beecham]

My Lords, I am struck by the direct relationship between the speed with which the Minister is racing through his brief and the embarrassment he no doubt feels at the material he is giving to the Committee. I cannot believe that the good and noble Lord is really convinced of the case he has been asked to put. That would not surprise me, because much of what we have heard is simply beyond credence. The noble Lord, Lord Marks, in a very powerful speech, made the essential point that—among other things—the court should have discretion on the amount. None of us is any the wiser about what kind of sums we are talking about. The Minister certainly has given no examples, except to say that it will be related somehow to the cost of the individual case. How is that to be calculated? On what basis will that be apportioned? Are we just talking about the cost of prosecution? That can be covered anyway, under the existing framework. Are we talking about a contribution to the cost of maintaining the court building or the cost of the judicial salaries in a higher court? There is no indication of how this cost is to be calculated and then passed on.

Equally, although the noble Lord rightly pointed out the provision in the Bill that the Lord Chancellor will prescribe the class of case to which the charge will apply, he has given no indication tonight—and I do not think that it was done in the other place either—of what kind of cases are envisaged. Why do we not know which cases are likely to be included? What will be the process, if any, for parliamentary approval of the classes as prescribed by the Lord Chancellor? Will Parliament be permitted any consideration in this, or will it simply be a matter of the Lord Chancellor’s fiat?

The Minister’s suggestion that it would be improper for the court to determine the amount because that would somehow reflect a vested interest on its part is simply risible. It is an absurd suggestion. The notion that magistrates or High Court judges will be influenced to make rather larger requirements of prisoners because that will somehow affect them, or the court system, is an insult to both the judiciary and the magistracy. It cannot be something that the noble Lord seriously believes. His scriptwriters need to go back to wherever they were taught their craft.

In addition, and worryingly, the Minister suggested that there is no deterrent effect because the charge will be imposed only long after a plea was entered. That is absurd. The fact that the court is in a position to impose a charge is known to the defendant before he appears there; it certainly ought to be. Of course, it may influence a defendant as to the nature of a plea, particularly in the case of an appeal.

[Lord Marks of Henley-on-Thames]

Is not the noble Lord slightly mistaken? It is the fact that the court is bound to impose the charge that is known to every defendant before they go into court.

[Lord Beecham]

I am not known for being mistaken, but I am happy to concur with the noble Lord’s judgment of me. However, I am not happy to concur with the Minister’s judgment of the situation because it is simply fallacious, particularly in relation to an appeal, when the costs will necessarily be significantly more than they would be at first hearing. Of course, appeals are not just confined to going from the magistrates’ courts to the Crown Court. There is also the question of an appeal from the Crown Court to the Court of Appeal and, I suppose, ultimately to the Supreme Court, the costs of which would presumably be unimaginable to an ordinary defendant.

In my view the Minister’s case is in tatters, but let me put a further point. If we are talking about the cost of the case and the cost to the courts, where is the logic in not extending that to the costs—I am now looking at the noble Lord, Lord Paddick—of the police force or the probation service, which might also be involved with a particular client? Why are we confining this charge to the court process? There is no logic to this at all.

We still do not know how the £65 million figure is computed. No doubt the Minister, in fairness to him, does not know either. I cannot imagine he has been supplied with the information. Even if that figure were right, it is something like 3% of the total amount outstanding. The noble Lord gave figures for the uncollected sums for two quarters of 2012. I think my figures were slightly more up to date, if they were correct. However, he did not answer the point—I do not blame him, because presumably nobody has told him—as to why the Ministry of Justice does not know how much has been outstanding for longer than 18 months. Is there an implication that, if money is outstanding for more than 18 months, it would be written off? That would be curious, in the circumstances. There is also the point that the charge will apply to those who are sentenced to a period of imprisonment, presumably to be met after they come out, no doubt as part of their rehabilitation. Does this make any kind of sense, I ask rhetorically? The Minister may think it does; there will be few in this House or outside who would agree.

Of all the misconceived and less than half-baked ideas we have seen in the Bill, this proposal must surely rank in the front line. It is simply appalling and I hope the Minister will use his long experience of these matters, as both an advocate and as a recorder, to persuade his ministerial colleagues, in particular the Lord Chancellor, that he is bringing the whole system into a serious collision with reality, one that will do no good to the defendants, to the court system, or, frankly, to the reputation of those who are putting forward these proposals. However, as we are in Committee, I will not press the matter tonight. It is very probably one to which I and others will wish to return on Report. I hope the Minister will use his influence with the Lord Chancellor to see that some significant changes, at the very least, are made to these appalling, deeply flawed proposals. I beg leave to withdraw the amendment.

Criminal Justice and Courts Bill

Debate between Lord Marks of Henley-on-Thames and Lord Beecham

Wednesday 23rd July 2014 Lords Chamber

[Lord Marks of Henley-on-Thames]

My Lords, I have added my name to Amendment 48B, as have my noble friends Lady Linklater and Lord Carlile of Berriew. We have also tabled Amendment 48F. However, the purposes of our amendment are identical to those of the noble Lord, Lord Ponsonby, so I will be brief.

There are three purposes to this group of amendments. The first is to ensure the extension to electronic media of those provisions dealing with restrictions on reporting of offending by children—restrictions that in a previous era applied to newspapers and standard television broadcasts. The public electronic media should all be treated in the same way. The second purpose, as the noble Lord, Lord Ponsonby, said, is to deal with pre-charge naming of children, which undermines the anonymity granted to them only later. Section 44 of the Youth Justice and Criminal Evidence Act 1999 would deal with that but has not yet come into force. The purpose of the final subsection of the proposed new clause in Amendment 48B is to deal with that. The third point, as the noble Lord explained, is to amend Sections 39 and 49 of the Children and Young Persons Act 1933 to establish that anonymity given to children should last beyond their 18th birthday unless there is a substantial reason why the position should be changed. That would be subject to an order of the court. In those circumstances, I invite the Minister to accept these amendments and ask the Committee to do so, too.

[Lord Beecham]

My Lords, it would appear that in this area, as in others, we are short of information about the number of cases in which young offenders are named. There does not appear to be a dataset indicating how many of these young people are being named and, apparently, has there been no research of any great depth on the impact of being named on such young offenders or their families—as my noble friend pointed out, particularly in relation to their siblings.

The UN Convention on the Rights of the Child, as long ago as 1989, stated that as well as the right to privacy, “best interests” of the child should always,

“be the primary concern in making decisions that may affect them”.

It is striking that, although it is a matter for the courts whether the child should be identified, the applications tend to be made by the media on the grounds of public interest. The capacity of the media to identify their interests with the public interest is of course unlimited, but in this rather sensitive area it might be thought that the principles of the convention should be taken a great deal more seriously. Some of the ways in which the media have portrayed young offenders, complete with photographs—my noble friend mentioned a case where a child’s photograph was prominently displayed—and emotive language such as how “young thugs” should be dealt with, are not conducive to meeting the requirements of the convention, which we should all respect.

I understand that the Government are looking at the existing law on reporting restrictions and had indicated that they would be coming to a conclusion some time this year. They may not have done so, but I do not know whether the Minister is in a position to indicate when that review might be completed. It would be helpful to the House to know when that might occur. In fact, the Government—I should, in fairness, say successive Governments—have not responded to the UN committee’s report, which is dated as long ago as 2008. In addition to the general principle to which I referred, that report made the strong point that respecting privacy should extend especially to avoiding messages that expose the child to shame and are against their best interests.

This is potentially quite a serious issue. From my experience as a councillor and, indeed, as chairman of the social services committee in Newcastle in the 1970s, I recall very well the famous case of Mary Bell, who was a young child when she committed offences that became notorious. Rather like the subsequent Bulger case—or rather, those who were guilty of killing Jamie Bulger—she became exposed to a great deal of publicity. That made assimilation into adult life extremely difficult for her, as it has for other defendants, it would appear, including those in the Bulger case. This is a very sensitive area in which we need a clear position from the Government in terms of a response not only to the amendment but perhaps more importantly to the UN convention requirements of as long ago as 2008.

Of course, there may be public interest in knowing what is happening, but a public interest in knowing does not necessarily amount to a matter of public interest. The two terms become confused. I hope that that is not the position that the Government ultimately end up with. There are clearly issues here that can have a long-term impact on young offenders. I entirely take the Minister’s point: the whole point of dealing with these young offenders is to ensure they do not offend again and can assume their place in society. We should not facilitate making that any more difficult by permitting disclosure when it is not necessary. I hope that the Government will look sympathetically at the amendment moved by my noble friend and respond to the long outstanding report and recommendations of the UN convention.

None of us would say that people—even young people—who commit serious crimes should not be punished or go through the processes that the law prescribes. They should not, however, be subjected to public obloquy in addition to that. It is rather disconcerting that, at the time of the riots in London a few years ago, the Home Secretary seemed keen to publicise the identity of some of those, particularly young people, who were involved in criminal and quite disgraceful behaviour. I think that many of us would feel that, in that sort of case and for that sort of young offender, publicity might be regarded as almost a badge of honour and is therefore not to be encouraged from any perspective. I hope that that situation will not recur. In the mean time, we have a number of offenders, some of whom are involved in very serious offences, whose anonymity has been done away with in a way that cannot be conducive to helping them to reform and to assume a normal place in society.

Criminal Justice and Courts Bill

Debate between Lord Marks of Henley-on-Thames and Lord Beecham

Monday 14th July 2014 Lords Chamber

[Lord Marks of Henley-on-Thames]

My Lords, I join other noble Lords in paying tribute to the noble and learned Lord, Lord Lloyd of Berwick, for his campaign to achieve justice for IPP prisoners. I remember well the debate on 27 March secured by the noble Lord, Lord Wigley, who raised this issue on that occasion.

The continued imprisonment of those who are serving tariff sentences of less than two years for so long after those tariff sentences were completed, and now long after IPP sentences were abolished by the LASPO Act, is nothing short of disgraceful. The noble and learned Lord, Lord Phillips of Worth Matravers, mentioned “Fidelio”. In that opera, it took the courage of Florestan’s wife Leonore, who, dressed as Fidelio, risked her life to save her husband from unjust imprisonment, to secure his release. All that is necessary for this Government now is for the Secretary of State to exercise his power—given to him, as has been pointed out, by the second limb of Section 128 of the LASPO Act—to introduce a simple presumption in favour of release unless the continued imprisonment of any such prisoner on an IPP can be positively and clearly justified. It is a simple presumption. It meets the justice of the case. It answers any need that remains for the protection of the public. I suggest that this unfairness must be ended, and now.

[Lord Beecham]

My Lords, it is ironic that the Committee meets today, on Bastille Day, as the French Revolution effectively broke out with the release of a number of prisoners on what were presumably indeterminate sentences. I suppose that they might have been lettres de cachet. The House and the Committee are indebted to the noble and learned Lord, Lord Lloyd, who has constantly raised this matter.

The noble and learned Lord, Lord Phillips, referred to “Fidelio”. I am not sure whether the Secretary of State would find himself comfortable in the position of the Minister in that opera; perhaps he would be more comfortable in another opera as Gilbert and Sullivan’s Lord High Executioner. Be that as it may, the noble and learned Lord raised a series of questions, implicitly or explicitly, to which we have had no reply thus far. I hope that the Minister will be able to give us some indication of the Government’s thinking, if they have got that far, on the issues raised this afternoon.

The first question has already been asked but I will repeat it: why include a provision in legislation and then completely ignore it? Have the Government or, more particularly, the Secretary of State considered using the provision that this Government included in the LASPO Act? If they have, on what basis has that consideration taken place? Has the Secretary of State looked at any cases of the kind to which the noble and learned Lord referred—I would hardly expect him to look at them all—to come to a view about whether it would be right to exercise the discretion that was deliberately placed in his hands? If he has not, why not? What is the Government’s intention in relation to this section of LASPO? Is it to be ignored or is it at all to be used? If it is not to be used, why do the Government not have the courage of their apparent convictions and delete it? If it is to be used, when and under what circumstances will that be?

Questions have repeatedly been asked today about the resources available to the Parole Board to deal with matters of this kind. I asked the general question before to which others, including the noble Lord, Lord Wigley, have now alluded about the increased burden on the Parole Board as a result of recent decisions and the growing number of cases that it will be asked to look at in oral hearings. However, has any specific consideration been given to the resources required to deal with the cases of people who have been in prison for the length of time to which noble Lords have referred? Again, if not, why not?

There may be a concern in respect of some of these defendants as to what would happen if they were released and whether they might to some degree be a risk to the public. What investigations have been carried out to assess the need for investigation and inquiry by the Parole Board in support of those potential candidates for release who have served such a length of time? The overriding question is really therefore: what was the purpose of incorporating the Secretary of State’s discretion in the 2012 Act if it is to be treated as redundant? If it is not to be so treated and there is an intention to do it at some time, why the delay? As we have heard, many cases have been running for an unacceptable length of time. I hope that the Minister will be able to give some assurances that this matter will be seriously addressed and not simply left on the shelf in a way that does no credit to our system.

I think that the previous Government were rightly criticised on matters of this sort, in many respects, particularly in also failing to provide sufficient support for the Parole Board. However, their failure is relatively minimal compared to the looming failure which is likely to affect not only this category of prisoner but others who require the Parole Board’s intervention. I hope that the Minister can indicate, today of all days, that some movement will be made and that the Secretary of State will address himself to the plight of these people, and thereby avoid a further stain on the reputation of the Government in this respect.

Civil Procedure (Amendment No. 5) Rules 2013

Debate between Lord Marks of Henley-on-Thames and Lord Beecham

Monday 29th July 2013 Lords Chamber

[Lord Beecham]

My Lords, I am very grateful to the noble and learned Lord and I look forward to hearing further from him on some of the outstanding matters. He may well be right about Part 36 offers—well, of course, he must be right—and that the possible problem that might have existed in relation to costs of a Part 36 application is covered by Rule 36.14, as he says. But of course, that does not leave the party in any better position to assess whether to accept a Part 36 offer. There may not be a cost implication, but he is not in any position to assess the strength or otherwise of a Part 36 offer, which rather distinguishes it from the general case.

I am very grateful to noble Lords who have contributed to the debate, especially to the noble Lords, Lord Pannick and Lord Bew, to the noble and learned Lord, Lord Goldsmith, and to the noble Lord, Lord Phillips, who broadly expressed support for the Motion. The noble Lord, Lord Marks, affects not to understand the reason or terms of the amendment. It is really fairly straightforward, I would have thought. The thrust of the argument that I sought to make, in which I was in various ways supported, is that we are seeing the transposition of a set of rules applicable to immigration cases under SIAC to ordinary civil procedure, as I said in opening the debate. That is the thrust of the first part of the amendment.

The second part of the amendment refers to the points made by the special advocates, to which the noble Lord, Lord Marks, chose not to direct his mind at all. I cited a couple of their concerns, but there were others—and I shall quote them, as we are not holding up a debate on the Care Bill by so doing. For example, among the points that they make, they talked about the,

“inability effectively to challenge non-disclosure … The lack of any practical ability to call evidence … The lack of any formal rules of evidence, so allowing second or third hand hearsay to be admitted, or even more remote evidence; frequently with the primary source unattributed and unidentifiable, and invariably unavailable for their evidence to be tested, even in closed proceedings … A systemic problem with prejudicially late disclosure by the Government … the Government's approach of refusing to make such disclosure as is recognised would require to be given until being put to its election, and the practice of iterative disclosure … The increasing practice of serving redacted closed documents on the Special Advocates, and resisting requests by the SAs for production of documents to them … on the basis of the Government’s unilateral view of relevance”.

These were all matters that were raised, and none of them appears to have been dealt with—

[Lord Marks of Henley-on-Thames]

Does the noble Lord accept the point that I was making, that the special advocates’ objections went to the legislation and were considered by Parliament during the passage of the legislation? The special advocates have not objected to these rules as implementing the legislation. If that is right, that is the query that I raise about the point of this regret Motion, which is directed to the rules in particular.

[Lord Beecham]

But the points that the special advocates have raised go to the process, which is the subject of these rules. The points that I have made could and should have been taken into account in the drafting of the rules to implement this procedure other than simply on the basis of applying to these circumstances of civil claims the rules that apply in entirely different and non-analogous circumstances of special immigration appeals.

Offender Rehabilitation Bill [HL]

Debate between Lord Marks of Henley-on-Thames and Lord Beecham

Tuesday 9th July 2013 Lords Chamber

[Lord Marks of Henley-on-Thames]

My Lords, in supporting this amendment, I would associate these Benches with everything that the noble and learned Lord, Lord Woolf, has said in welcoming it and in thanking the Government and congratulating them on the way in which they have considered and recognised the particular needs of women in the system. In Committee, we moved certain amendments which would have required the recognition of those needs at various points in the system and we are content that this all-embracing amendment meets them.

I would also associate myself with what the Minister said in tribute to the noble and learned Lord, Lord Woolf, who has campaigned so hard for recognition of the needs of women in this area. As a spokesman on these matters for one of the coalition parties, it gives me particular pleasure to note that we have made a great deal of progress on two of the significant issues for which he has campaigned—restorative justice and women offenders.

I particularly welcome the commitment in this amendment to transparency because, as has been pointed out during the passage of this Bill, we are entering a new era for the probation services. The ability to monitor what is being done after this legislation is passed is of considerable importance.

[Lord Beecham]

My Lords, I join the Minister and the noble Lord, Lord Marks, in congratulating the noble and learned Lord, Lord Woolf, and thanking him for bringing this matter to the fore in the debates on the Bill. I am happy to break the habits of a brief parliamentary lifetime and congratulate the Minister on his constructive response. I hope he finds this habit catching, in which case I promise to reciprocate.

Like other noble Lords, I have received a briefing from the Prison Reform Trust. While welcoming the amendment, there are a couple of matters on which they seek some assurance—and I would echo their request. First, that the Government should require the contractors to specify—within the contract specifications —what particular services would be provided for women, and that the tender criteria, in turn, as part of the contract, would give sufficient weighting to that element. I imagine that should not present any difficulties but it would be good if the Minister could confirm it. Equally, the commissioning bodies will be given guidance along those lines.

Perhaps I may raise a point related to women prisoners that is not specifically covered by this amendment but which has been referred to in the course of our debates—that is, resettlement prisons. It is a welcome concept and certainly should help to reduce reoffending by ensuring that women serve their prison sentences, or at least the latter part of the sentence, closer to where they are likely to return on release. I raised a question in earlier debates about the specific position of women in this respect because, as I understand it, there are only 13 women’s prisons in the country and they are not necessarily geographically distributed in such a way as to facilitate the Government’s intentions. I am not asking the Minister to confirm specifically today, but it would be good to know that that is being considered and that it is an objective which it is hoped the Government will seek to achieve. It would largely complete the work raised by the concerns now embodied in the amendment, which these Benches certainly fully support.

Crime and Courts Bill [HL]

Debate between Lord Marks of Henley-on-Thames and Lord Beecham

Tuesday 18th December 2012 Lords Chamber

[Lord Beecham]

Perhaps the Minister would care to fortify himself before these debates in the same way that Mr Churchill did.

[Lord Marks of Henley-on-Thames]

I beg leave to withdraw the amendment.

Crime and Courts Bill [HL]

Debate between Lord Marks of Henley-on-Thames and Lord Beecham

Monday 10th December 2012 Lords Chamber

[Lord Beecham]

My Lords, I respectfully adopt and support most of my noble and learned friend’s comments and indeed most of his amendments. If I had a preference between Amendments 116A and 116B, I think it would be Amendment 116B, but it would be interesting to hear which way, if either, the Minister inclines on that particular aspect.

It seems very sensible that other possible consequences of a failure to comply should be incorporated, so I endorse Amendments 116C and 116D. As to the amendment in my name and that of my noble friend Lord Rosser, we return again to the principle of having these novel matters debated openly before the new process is set in motion. In this particular case, it is a matter of having the financial penalties and parameters that would be proposed by the Sentencing Council subjected to scrutiny and debate but not, as I suggested in Committee, to an affirmative procedure. In retrospect, I think that was going too far and perhaps trespassing on the role of the Sentencing Council in an unacceptable way, although I note that there seem to be some judicial misgivings about the operation of the council. Be that as it may, it does not relate specifically to this point.

Again, bearing in mind the need to carry public opinion with us on this new process, it would be helpful to have that debate before the Sentencing Council’s proposals became adopted. The novelty of the process is such that not only would that be justified but it would actually assist in securing public acceptance. I can anticipate the next amendment, which is very much on the same line; again, having it debated should inform both public opinion and possibly the final decision-makers in a way that can only contribute to the success of the experiment, if that is what it is. I suspect that it will be a successful experiment on which we are embarking.

On the question of incentives, my noble and learned friend is right. It is quite clear from the American example—I repeat for the second or third time that very much larger sums are secured under the American system—that an incentive has to be provided. Whether that is a maximum of one-third or not is another matter. I am not entirely surprised that most respondents disagreed with a maximum of one-third; no doubt they would prefer it to be larger, which underlines my point, but there needs to be some open debate about this before a final decision is made.

In these circumstances I hope that the Government will, even at this late stage, acknowledge that there is substance in my noble and learned friend’s amendments, and I hope that they will also agree that my proposal would actually assist in gaining acceptance for this new process, both by the public at large and by those who will potentially be the subject of its operation. In that spirit, I beg leave to move the amendment in my name.

[Lord Marks of Henley-on-Thames]

My Lords, I will be brief. In relation to Amendments 116A and 116B, after two debates in Committee and our meeting, I am still entirely unclear why the Bill as drafted contains only the all-or-nothing choice in relation to financial penalties. As the noble and learned Lord, Lord Goldsmith, pointed out, the arrangements proposed are that the financial penalty should be optional only, but if there is a financial penalty then it must be broadly comparable to the fine that would be imposed on a guilty plea. I suggest that that is illogical because there is no room for such a reduced financial penalty, and there is no reason why there should be no room for one.

Crime and Courts Bill [HL]

Debate between Lord Marks of Henley-on-Thames and Lord Beecham

Tuesday 13th November 2012 Lords Chamber

[Lord Beecham]

My Lords, I broadly sympathise with the amendments of the noble and learned Lord, Lord Goldsmith, on this part of the Bill. In particular, it is important to recognise that there needs to be some incentive—this is the American experience—for potential defendants to come to terms, and the noble and learned Lord’s formulation is in line with that. However, given that the Bill refers to the penalty being broadly comparable to a sum that might be levied by way of a fine on conviction for an alleged offence following a guilty plea, there is an implicit assumption that there will be a one-third discount from what would be the fine after a conviction. That is the way in which the system appears to work, so we are perhaps not terribly far apart in any event.

I am less clear about the attraction of Amendment 26. I do not quite follow why the payment to the prosecutor of a financial penalty should be taken out of the Bill. The prosecutor is not personally going to pocket the money, I assume.

[Lord Marks of Henley-on-Thames]

Perhaps I may help. Amendment 26 is part of a suite of amendments. Amendment 24 provides for the compulsory imposition of a requirement to pay the prosecutor a financial penalty broadly comparable to the fine a court would have imposed. The amendments can only be read together. If you have Amendment 24, you do not need paragraph (3)(a).

[Lord Beecham]

I will not take the time to check that. I shall accept the noble Lord’s remarks and leave it to the Minister to respond.

[Lord Marks of Henley-on-Thames]

On this occasion I am certain that I have got the drafting right.

[Lord Beecham]

Well, there is a first time for everything.

--- Later in debate ---

[Lord Marks of Henley-on-Thames]

I shall speak briefly to Amendments 38 and 41. Amendment 38 is about public final hearings. Just as there are absolutely sound reasons for the preliminary hearing considering a DPA to be in private to avoid prejudicing any subsequent prosecution, if no DPA is entered into, and to avoid prejudicing negotiations for a DPA, so the final hearing should generally be in public unless there is still at that stage a substantial risk of prejudice. I suggest that that is essential for the public administration of justice and to build and maintain public confidence in these new arrangements. That is the point of Amendment 38.

Amendment 41 is on a similar theme. Under paragraph 12, the court may postpone publication of the terms of a DPA or of a decision on a breach, variation or discontinuance of a DPA if it appears to the court that postponement is necessary to avoid a substantial risk of prejudice to the administration of justice in any legal proceedings. This amendment limits any such postponement to the period of such continuing risk, so that as soon as the risk disappeared, publication would follow. Again, I suggest that that must be in the interests of the public administration of justice.

[Lord Beecham]

I have a good deal of sympathy with the amendments in this group tabled by my noble and learned friend and the noble Lord, Lord Marks, and I will be interested to hear the Government’s response. Both aspects seem to be matters that they should consider before Report.

Justice and Security Bill [HL]

Debate between Lord Marks of Henley-on-Thames and Lord Beecham

Tuesday 17th July 2012 Lords Chamber

[Lord Marks of Henley-on-Thames]

My Lords, I had not intended to intervene in this debate, but having heard the noble Lord, Lord Pannick, and my noble friend Lord Faulks describe—accurately, one has to concede—the role of the special advocate and the limited responsibility that he has to the person whose interest he is appointed to represent, one is bound to come back to the amendments proposed by my noble friend Lord Hodgson and ask whether there is not a field that my noble and learned friend the Minister ought to consider—namely the degree to which we might fairly increase permitted disclosure to the person whom the special advocate is appointed to represent. There ought to be a guiding principle, consistent with what the noble Baroness, Lady Manningham-Buller, said, that there should be as much communication as is consistent with the interests of justice, short of disclosing material to the party from whom some disclosure that is prejudicial to national security is withheld. The special advocate’s position could be effectively carried out without compromising national security if some movement in that direction were to be conceded. It may be that my noble friend’s amendments do not achieve precisely that balance, but at the moment we have a system that is so restrictive of communication that it destroys the public confidence in the special advocate system that there might be.

[Lord Beecham]

My Lords, this is an important group of amendments, as are the amendments to follow which deal with the position of special advocates. The Constitution Committee, in its report of 15 June, made reference to the earlier report of the Joint Committee on Human Rights and stated:

“The use of Special Advocates has proven to be highly controversial”.

The report then quoted the 2010 report of the Joint Committee on Human Rights which stated that, even with the use of special advocates, the closed material procedure,

“is not capable of ensuring the substantial measure of procedural justice that is required”.

The Constitution Committee report continued:

“The Special Advocates themselves have voiced grave concerns as to the limitations inherent in their role. They submitted a … response to the Green Paper”,

which stated:

“Our experience as Special Advocates … leaves us in no doubt that CMPs are inherently unfair; they do not work effectively; nor do they deliver real procedural fairness”.

The Constitution Committee report added that even the Court of Appeal—which commended the special advocate system and said that it,

“enjoys a high degree of confidence among the judiciary”—

pointed out that the system is,

“‘inherently imperfect’ and that the system ‘cannot be guaranteed to ensure procedural justice’”.

Those are significant criticisms, even allowing for the efforts made by the distinguished body of men and women who serve as special advocates. I refer again to the evidence to the Select Committee about the special advocates, particularly the evidence of Mr McCullough, who was clear about the problems they faced. He said that the best they can do is,

“very limited indeed, particularly given the nature of intelligence material, which, very often, requires inferences to be drawn from circumstances that may have a sinister explanation … We, as the Special Advocates, are in great difficulties in displacing the sinister explanation if we cannot take instructions from the person who is in a position to provide the innocent explanation. So that is a fundamental difficulty”,

that they find themselves in under the Bill. In answer to a question from my noble friend Lady Lister in the same evidence session, he said that the legislative form of words that could be devised,

“would simply be that there is an obligation to give a minimum level of disclosure, which would enable the affected person to give effective instructions to their own representatives or to their Special Advocate. It would not be difficult to draft”.

That rather follows the line of the noble Lord, Lord Marks, in commending a procedure that would safeguard the element of national security but allow instructions—potentially, at least—to be given.