Prisons: Pregnancy Healthcare

Lord Garnier Excerpts

Thursday 31st October 2019 Lords Chamber

[Lord Keen of Elie]

My Lords, the guidance that I referred to applies equally to public sector and contracted prisons. With reference to Her Majesty’s Prison Bronzefield, I observe that the most recent report from the inspectorate, published in April this year, identified Bronzefield as an “overwhelmingly safe prison” and an “excellent institution”. It found that pregnant prisoners in Bronzefield were identified and immediately referred to midwifery support. Clearly, we need to look at this incident and learn lessons from it. We are intent on doing so.

[Lord Garnier (Con)]

My Lords, I declare my interests as a trustee of the Prison Reform Trust. Will my noble and learned friend not only take on board the points made by the noble Baroness opposite in respect of the example at Bronzefield but widen the inquiry he has spoken about to cover all medical services provision in the prison estate in England and Wales, be it for mental or physical health? An increasing cohort of elderly, geriatric and end-of-life prisoners is underprovided for in terms of adequate medical care. Will my noble and learned friend ensure that this Government make sure that there is proper provision for all prisoners, throughout the prison estate?

[Lord Keen of Elie]

My noble and learned friend makes a very good point. It is essential that we provide medical care across the board for those in custody. As I mentioned, that is why the National Prison Healthcare Board has produced its principle of equivalence of care for prison healthcare in England. That followed a report by the House of Commons Health and Social Care Committee, published in November 2018, which recommended that the board should work with stakeholders over the next 12 months to agree a definition of equivalent care and indicators to ensure that they can measure that there are no health inequalities for people detained in prison. Of course, that includes mental health, which is a major issue, particularly in respect of women’s custody, with more than half of women in custody recorded as reporting or suffering from mental health issues. I agree that that needs to be addressed.

Feltham Young Offender Institution

Lord Garnier Excerpts

Wednesday 24th July 2019 Lords Chamber

[Lord Keen of Elie]

My Lords, I am not aware of the withdrawal of a police unit from Feltham and therefore cannot comment on that point. But I undertake to write to the noble Lord and I will place a copy of the letter in the Library.

[Lord Garnier (Con)]

My Lords, the young offender estate has been troubled for a great many years. It is full of very troubled young people. As others have indicated, the institutions are overcrowded, and inmates are kept in their cells for far too long and are doing insufficient purposeful activity, be it learning to read or write, coming to terms with their offending or finding things to do that they might usefully do when they leave the YOI. Is not the churn of governors, not just prisoners, another problem that the YOI estate suffers from? Far too many senior members of staff at these places are in post for far too short a time; they can never get to grips with the many problems that they face. If we could keep them there a little longer, we might see the young offenders leaving the estate with something purposeful and socially responsible to do.

[Lord Keen of Elie]

I note the observations of my noble and learned friend. It may not be appropriate to generalise about the state of the youth custody regime. It is clear, and it should be acknowledged, that there have been real operational difficulties at Feltham A over several months—of that we can have no doubt. Indeed, there was a hiatus when a Feltham governor was promoted and, unfortunately, the incoming governor had to work out a period of notice before moving into post. Again, that created real difficulties. But there are also areas of success in the youth custody regime: for example, I will mention in passing Wetherby, where —my noble and learned friend made a good point here—a well-established governor has been in place since October 2016 and has therefore had the time and space to settle a once-troubled establishment. So I agree that continuity and consistency are important if we are to deal with these issues.

Serco

Lord Garnier Excerpts

Thursday 4th July 2019 Lords Chamber

[Lord Keen of Elie]

My Lords, I will not comment upon suggested other allegations. There has been a thorough investigation by the Serious Fraud Office with regard to events between 2004 and 2014, and that has resulted in the deferred prosecution agreement, as indicated earlier. We are content that Serco, having carried out a thorough and extensive exercise in cleaning out those involved in this matter, is in a position to accept further contracts from the Government going forward, subject to the same rules and regulations that apply to other third parties. Therefore, it will continue to do so. I make no comment on G4S. It may be the subject of continuing inquiries, and it is not appropriate for me to say any more.

[Lord Garnier (Con)]

My Lords, I declare my interest as the law officer who introduced deferred prosecution agreements into our criminal justice system when I was in government, and I have also been instructed by the Serious Fraud Office on two of the deferred prosecution agreements—with Standard Bank and Rolls-Royce—since they came into force. Does today’s news and the Statement not illustrate the good sense of the deferred prosecution agreement system? It allows companies to come to terms with their wrongdoing, to compensate the victims of their wrongdoing and to pay a suitable penalty for that wrongdoing, while at the same time not causing collateral damage to the contractors, employees and pensioners of those companies who are not affected by, for example, a company being shut down. The events which caused the criminal conduct are to be much regretted, but surely the new board and management have in this case done precisely the right thing in coming to terms with the wrongdoing and making account of it to the public, and, having cleaned its debts, can now get on.

[Lord Keen of Elie]

My Lords, I entirely concur with the observations of my noble and learned friend. The underlying purpose of deferred prosecution agreements is as he has set out, and the consequences are as he has referred to. It would have been wholly inappropriate to see the jobs of many employees put in jeopardy because of the nefarious activities of some in management, who have now been removed.

Courts and Tribunals (Online Procedure) Bill [HL]

Lord Garnier Excerpts

Report stage (Hansard): House of Lords
Monday 24th June 2019 Lords Chamber

[Lord Mackay of Clashfern]

Exactly. He is doing exactly what I think is required. If the person who has the responsibility finds out that it is okay with the Lord Chief Justice—at least that is what I hope would happen—that person then goes on and does it. Therefore, consultation is probably the right balance at that stage. I am rather against the idea of involving the Lord Chief Justice in any form of political work. I thought the Constitutional Reform Act sought to achieve separation between the judiciary and the legislature, so that the acting judiciary were no longer part of the legislature.

[Lord Garnier (Con)]

My Lords, I do not want to spread dissension where none is required or even helpful, but I am persuaded by the first three noble—and noble and learned—Lords who have spoken in this debate. I am always persuaded by what my noble and learned friend Lord Mackay says, and we need clarification. Although I fully accept what my noble and learned friend has just said in relation to the political angle, there are provisions in Clause 9 which, although they refer to amending, revoking or repealing an Act, or a provision made under an Act, at heart deal with the mechanics of the procedure to be operated under the Online Procedure Rule.

We need to think more carefully before rushing into this. I take my noble and learned friend’s point about the possible inconsistency between this legislation, if it is to be amended, and earlier provisions. However, sometimes consistency runs in the wrong way. If the current amendment points out something that would then become inconsistent, it may be that the earlier provision also needs to be amended. In any event, I am utterly convinced that my noble and learned friend on the Front Bench will be able to persuade me that what the noble and learned Lord, Lord Judge, has said, supported as he is by the noble Lords, Lord Pannick and Lord Beith, will enable us to move forward in a spirit of complete concurrence.

[Lord Faulks (Con)]

My Lords, I repeat the declaration I made at Second Reading that I am a practising barrister. The balance of powers between the Executive and the Lord Chief Justice is a delicate matter, and I too will listen with care to what my noble and learned friend says about it. However, I wonder whether the powers are quite as wide as the noble Lord, Lord Pannick, says they are. Clause 8 admittedly gives a power to the appropriate Minister to do what they think is expedient for the Online Procedure Rules, and the committee must make Online Procedure Rules. But that throws the matter back to the committee to make the rules and, in doing so, once again the committee has to go through the procedure that itself involves getting the agreement of the Lord Chief Justice—so there is a safeguard at that level.

As far as Clause 9 is concerned, there is consultation in relation to the Lord Chief Justice, as my noble and learned friend Lord Mackay said, and the powers are limited to making such changes by getting rid of impediments and tidying up, as is necessary or desirable, as a consequence of Online Procedural Rules. I wonder whether we are not putting up a rather alarming prospect of a Minister, as it were, riding roughshod when in reality these are necessary provisions for the Executive to use—subject of course to the actual making of the relevant rules which do themselves provide safeguards.

I of course endorse what has already been said: if these additional amendments are incorporated into the Bill, it would make it more restrictive to make these rules in relation to online procedure than is the case under the current Civil Procedure Rules. That would be odd, although I take the point made by my noble and learned friend Lord Garnier that if there is something wrong with it, there is no reason simply to rely on precedent. None the less, this has not been criticised so far and I wonder whether we are wise to do it now.

[Lord Garnier]

My noble friend has reminded me that I should have declared an interest as a practising barrister, given that that may not always be clear.

[Lord Marks of Henley-on-Thames]

My Lords, the noble and learned Lord, Lord Garnier, has reminded me that perhaps I should make the same declaration—so I do so now.

We support Amendments 22 to 24, not only for the reasons given by my noble friend Lord Beith but for those given earlier in the debate, in particular by the noble and learned Lord, Lord Judge, and the noble Lord, Lord Pannick. We regard it as very important that these rules should ensure a proper balance between the Lord Chancellor and the Lord Chief Justice: between the Executive and the legislature. I also take the two points made by the noble and learned Lord, Lord Mackay. First, there are of course equivalent provisions in the existing rules, but I agree entirely with the noble and learned Lord, Lord Garnier, who pointed out that that should not be treated as a precedent, and that if there is anything wrong with the earlier rules, perhaps they should be changed. If the 2005 Act overlooked those changes, perhaps it should not have done so, because that was the point at which the changes should have been made; that is, when the balance between the Lord Chancellor and the administration of justice changed.

I also suggest that what the noble and learned Lord, Lord Mackay, said was telling. He said that the difference between consultation and concurrence is that where you have consultation, the Lord Chancellor will go to the Lord Chief Justice and check that the change in the rules is okay with him—or that is what he hopes he would do—and then he would go back to make the rule. However, it seems to me that the need for concurrence in these rules is dependent on the Lord Chancellor finding out that the rules are okay with the Lord Chief Justice and the requirement for concurrence is to determine the position where they are not okay with the Lord Chief Justice, and that is why we have the concurrence requirement. I will give way to the noble and learned Lord.

Sentencing (Pre-consolidation Amendments) Bill [HL]

Lord Garnier Excerpts

Second reading committee (Hansard): House of Lords
Wednesday 12th June 2019 Grand Committee

[Lord Garnier (Con)]

My Lords, it is a pleasure to follow the noble and learned Lord, Lord Hope, and the noble Baroness, Lady Mallalieu. I think that all of us in the Room will support this measure. The Law Commission has told us that there are three good reasons for codifying the law on sentencing: it would make the law simpler and easier to use; it would increase the public’s confidence in the criminal justice system; and it would increase the efficiency of the sentencing process.

I do not intend to say anything other than a few remarks about making the law simpler and easier to use. I say it from the point of view of someone who was a recorder, like the noble Baroness. Unlike her, I was not a criminal practitioner. I learned such criminal law as I did learn at the feet of someone who was then called Lord Justice Judge, who used to chair the recorders’ training weekends in Cheltenham. In the mid-1990s, when I was there, it dawned on me just how complicated criminal law was and, in particular, how complicated criminal law to do with sentencing was. As a civil practitioner, I had rather a grand idea about criminal law and thought that it must be terribly easy. Well, it is not and was not. Since I became a recorder in 1998, it has just got more and more complicated, so anything that can be done to make it simpler and easier to use is to be applauded.

I say that not only because it would have helped me—it became so complicated that I had to stop in 2015 as my brain was beginning to ache—but because most criminal cases, certainly in England and Wales are tried by amateurs, the magistracy, the lay Bench, which deals with about 90% of criminal cases, possibly more, and recorders, who are part-time judges who sit as Crown Court judges for perhaps three or four weeks during the course of the year. Many of them will be non-criminal, civil practitioners: solicitors and barristers whose specialism is in areas of the law outside crime.

Like the noble Baroness, I would frequently ask the advocates in front of me, “What can I do in this case?”, expecting that those experienced barristers—some were less experienced—would be able to tell me. Often, we had to adjourn for 20 or 30 minutes while everyone went and looked up the answer to the question. I confess that it was not always the case that we got it right, which led to the expense and delays to which the noble Baroness has already referred.

The problem is also accentuated because the amateur judges, be they magistrates or recorders, tend to do the cases “of less importance”. The irony, though, is that High Court judges and senior Crown Court judges frequently sit in murder cases, or cases where the only available penalty is life imprisonment. The biggest question that they have to decide as a matter of sentencing law concerns the tariff—that is, what is the minimum amount of time that the defendant will have to serve as part of that life sentence? But for the Crown Court recorder dealing with a case of burglary, domestic abuse or death by dangerous driving, with all its complicated aspects—or, sometimes, a historical sex case—a judge might on occasion be looking at the law prior to 1956 and applying it to a sentencing exercise in 2007 or 2015. That adds to the complications to which my noble and learned friend has already drawn our attention. For that reason alone, if we can introduce this sentencing code as quickly as we sensibly can, I suggest that the Bill is to be much welcomed.

I will give one further illustration of the complicated nature of our current sentencing system. In the first decade of the century, after the passing of the Criminal Justice Act 2003, one of the little games I used to play was to put down a Written Question at the beginning of every Session, asking the then Labour Government how much of that Act had been implemented, how much of it had been repealed before being implemented and how much of it had been repealed after implementation. Broadly, between about 2004 and 2010, the answer, “One-third, one-third and one-third”, used to come back. That is not a good way to run a criminal justice system. Although I appreciate that it is but the overture to the main work, if the Bill and this collection of measures can reduce that sort of stupidity and illogicality in our sentencing system, so much the better.

I heartily support the sentiments behind the Bill. I look forward to its speedy, but properly scrutinised, progress through this House and the other place. In finishing, I add my personal thanks to Professor David Ormerod. He first began discussing this matter with me more than five years ago, probably longer. I honestly did not think that I would live to see the codification of our sentencing system, but he and others at the Law Commission, under the chairmanships of both Lord Justice Bean and Lord Justice Green, have performed quite spectacularly to get this highly complicated subject reduced into something that even I can understand. I look forward to seeing it get on to the statute book.

Courts and Tribunals (Online Procedure) Bill [HL]

Lord Garnier Excerpts

Committee: 1st sitting (Hansard): House of Lords
Monday 10th June 2019 Lords Chamber

[Lord Thomas of Cwmgiedd]

I make two brief observations. First, I support the introduction of the amendment by the noble Lord, Lord Marks, and emphasise that HMCTS provides a lot of advice on various areas and, because it is now jointly accountable to the Lord Chief Justice as well as to the Minister, its independence ought to be seen. Secondly, if Amendment 13 is adopted, I would hope that due regard is paid to the provisions of the Welsh Language Act; subsection (5) does not do so properly at present.

[Lord Garnier (Con)]

My Lords, before my noble and learned friend replies, I gently support the amendment and the way in which it was proposed by the noble Lord, Lord Marks. The policy behind the Bill is clear and sensible: it is to provide easier access, cheaper access and cheaper administration of litigation in certain types of cases. It seems from Clause 2 that the ambit of those cases is broad at the moment. For the reasons given by the noble Lord, Lord Marks, if we do not provide appropriate assistance—if not in the terms expressly set out in his and his supporters’ amendments, at least in some form—I fear that the good intentions behind the policy and the Bill will lead to the unintended consequence, again spelled out by the noble Lord, of a breakdown of the smooth operation of the system because people either do not understand the system or, having got into it, do not understand the technicalities behind internet access. As others have mentioned, that will lead to delay, expense and frustration within the justice system, which the Bill is surely designed to do away with.

I, for one, am certainly not wedded to any particular wording—like the noble Lord, Lord Marks, I am much more interested in outcomes—but the Government need to apply their mind to providing cost-saving and effective forms of assistance. It is not just to the elderly or people with language difficulties, whom the noble Earl mentioned a moment ago, that we need to offer our help: we need to make the system work well and efficiently and be genuinely part of the justice system.

[Lord Keen of Elie]

My Lords, I begin by saying that I entirely agree with noble Lords that digital support for those who want to access online services will be paramount to the effectiveness of the proposed changes in civil procedure. We are of course conscious that not all court and tribunal users have the confidence or ability to use digital channels unaided.

On the point made by the noble and learned Lord, Lord Thomas of Cwmgiedd, HMCTS already has an assisted digital strategy in place quite independent of the Bill. For simple support needs, HMCTS staff will talk users through queries over the telephone. In cases of more complex needs, there is provision for face-to-face support, currently being piloted by the Good Things Foundation, which is a charity that specialises in digital inclusion. That means that people can be taken through a digital process step by step. As the noble Lord, Lord Beith, noted, that support is being piloted in 18 locations throughout England and Wales, and in fact will now be rolled out across the country, in order that there is general access to it. We have that digital assistance in place and want to see it developed. We understand the need to ensure that such assistance is available.

We are also seeking to simplify some online forms, essentially by way of a “save and return” process. One frustration encountered by some users of online forms has been that, when they find themselves half way through a form, they decide to consult an appropriate oracle about how to complete the second half of the form but, by that time, the first half has disappeared. Simple steps like that can enable people to use these systems far more easily. We are entirely conscious of the need for such assistance.

I hear what noble Lords say about wanting to see some expression of willingness or intent in the Bill; I would be happy to discuss that further with them before Report. I cannot accept the proposed amendments in their present form—I will not seek to detail why at this stage—but we are willing to discuss an expression of intent that may appear in the Bill. I will leave the matter there at this stage.

Amendment 14, in the name of the noble and learned Lord, Lord Mackay of Clashfern, concerns fraudulent activity from persons perhaps pretending to act on behalf of the court. Of course, we take cybersecurity and online fraud extremely serious across all government services. We have cybersecurity professionals involved in the development of all our systems, including new digital services. Those are assessed by the Government Digital Service before they are ever rolled out for public access, so we have a means of ensuring that these systems are fit for purpose. Of course, we understand the importance of building appropriate data security and privacy measures into all such technological systems. Indeed, our systems are subjected to regular checks to ensure that there is no improper access or misuse. HMCTS has developed a risk assessment framework aligned to Government Digital Service standards. My understanding is that, on the basis of the present offerings online, it is unaware of any fraudulent websites claiming to offer access to such sites. Of course, we will maintain vigilance in that regard.

There is perhaps a distinction to be drawn here between some scams and the sort of online scam where somebody claims to be from Her Majesty’s Revenue & Customs and invites you to send them your bank account details so that you may be the happy recipient of a tax rebate, but you then discover that your bank has inadvertently been emptied rather than credited. In the context of the court process, we are vigilant against fraud but there is no scope there for that sort of fraud. As I said, we have not encountered fraudulent use, or attempts at fraudulent use, of the websites in so far as we already have certain online channels with HMCTS, so we would not consider it appropriate to accept the noble and learned Lord’s amendment at this stage. That said, I would be happy to discuss further the other amendments in the group. In the meantime, I invite the noble Lord, Lord Marks, to withdraw his amendment.

--- Later in debate ---

[Lord Judge (CB)]

My Lords, since Second Reading, when I argued in support of these amendments, I have had a meeting with the Minister and, notwithstanding his customary courtesy, I was unable to persuade him of the good sense of these amendments. Listening to his response to today’s debate, it is quite obvious that we cannot expect a Damascene conversion on his part, but did I detect the tiniest shining light—the dawning of a better understanding of why these amendments should be made? If I detected a light, it was only a faint one and I shall certainly not turn the lights off. If we are talking about dawns, nor shall I allow any clouds to obscure my meaning.

We have discussed the issues and I shall not go over those that have already been ventilated in our debate. Lord Justice Briggs’s report is admirable and I continue to support it, but it was a report directed to a small feature of the system of litigation. The Bill, as has been said but is worth repeating, has the potential to cover every single aspect of the administration of civil justice, every single aspect of the administration of family justice and the entire tribunal system. It is difficult to exaggerate the level of interference with the administration of justice in all the areas that the Bill would give to the Lord Chancellor. As I say, the issues have been addressed and I shall not repeat them, but I have heard the Minister say on a number of occasions, “It’s all right because there is the committee with a judicial involvement”. Indeed, in answer to an earlier debate, he pointed out the happy differences between this committee and the Family Procedure Rule Committee, the Civil Procedure Rule Committee and so on. But there are two that he did not grasp and they are the ones that matter.

This is a committee on which the judiciary will be in a minority and it is the first such committee. It will be a committee of which the majority of the members will be appointed by the Lord Chancellor. Let us pause and think about that. The majority will be appointed by the Lord Chancellor and presumably it will be for him to dismiss them if he disagrees with them. That is consistent with the pernicious modern tendency, which I have go on about before, of our being asked to vest greater powers in the Executive—in this case in one Minister. We have become inured to it and it is particularly incongruous in the context of the administration of justice, where, as a matter of constitutional necessity, everyone accepts that the powers should be separate.

Since the constitutional reforms made in the early 2000s, ultimate responsibility for the administration of justice is vested not in the Lord Chancellor or in any other Minister of the Crown, but in the office of the Lord Chief Justice, an office I had the privilege to hold. At the time, none of the judges was urging any such change; we did not want to get rid of the Lord Chancellor. The noble and learned Lord, Lord Mackay, was not the Lord Chancellor at that time, but we were very happy with who we had had and did have. It came as a complete surprise to the judiciary, therefore, but it has come, and the consequence is this: a reduction in the responsibilities of the Lord Chancellor for the administration of justice, and a significantly enhanced responsibility of the Lord Chief Justice. He is responsible for what happens in the court system, and that must be understood when we are contemplating this Bill.

With one important exception—important for a reason to which I shall come—under the Bill in its present form, in the discharge of his responsibility for the day-to-day running of the family courts, the civil courts and, to the extent that he has responsibility over the tribunal system, the tribunal courts, the Lord Chief Justice is granted what is pushed as a “privilege” to be consulted by the Lord Chancellor if the Lord Chancellor and his committee have any proposals for change. However much the noble and learned Lord, Lord Keen, may be frightened of what the Lord Chief Justice may say, a political Lord Chancellor disagreeing with the Lord Chief Justice can simply disregard whatever he may say. It would for years, no doubt, be done with appropriate courtesy—and I hope that, in years to come, it will always be done with appropriate courtesy—but there is no guarantee even of that. But pause here because, after these changes have been implemented, the responsibility if they fail to work will fall not on the Lord Chancellor but on the Lord Chief Justice—even if, when consulted, he or his predecessor argued against them. In those circumstances, limiting the role of the Lord Chief Justice to consultation is absurd.

The change in the relative responsibilities of the Lord Chancellor and the Lord Chief Justice has been understood and acknowledged in earlier arrangements. Thus, for example, when the question arises of whether court proceedings in England and Wales may be televised—and, if so, which part of such proceedings may be televised and what damage there may be, if any, to the administration of justice depending on what proceedings are televised, or how the administration of justice may be advanced if part of the proceedings are televised—that decision is not vested exclusively in the Minister, who may after all have political reasons for his decision; it requires the concurrence of the Lord Chief Justice. On disciplinary proceedings, if a judge has misbehaved or misconducted himself or herself, there is a requirement for concurrence between the holders of the two offices. What is more, the Bill itself, in Clause 6(2), recognises circumstances in which concurrence is appropriate. The amendments proposed to this and the remaining clauses are therefore entirely consistent with a provision in the Bill and with other provisions outside it.

Concurrence of the Lord Chief Justice, and where appropriate the Senior President of Tribunals, is necessary surely when an issue affects the administration of justice on a day-to-day basis. That is what the Bill is about: the administration of justice, day to day. Questions of how proceedings in whichever area of law may be conducted and how they may not; whether, and if so in what circumstances, they must be conducted digitally or on paper; whether and how the interests of litigants who are not proficient are upheld, as we discussed earlier—that is all part of the day-to-day requirement of what goes on in our courts. There is one final consideration, which always seems to me to matter hugely: whether the unsuccessful litigant leaves court satisfied, not of course with the result but with the idea and conviction that he or she has been heard and understood. “Even if the judge got it wrong, he listened to me”, seems a very important part of the administration of justice. These are all questions for the day-to-day search for justice.

In the context of the Bill, which proposes at some stage along the line of history to give wide powers to a Minister, consultation alone is a meaningless handout from the Executive to the judiciary. More importantly, alone it offers no sufficient protection to the citizen against inappropriate Executive interference with the administration of justice. I beg to move.

[Lord Garnier]

My Lords, in agreeing with the noble and learned Lord, Lord Judge, given his anticipation of beneficial light emerging from the Front Bench, I caution him that, as so often happens in these matters—particularly when the Government are giving something away, such as consultation—the light at the end of the tunnel ends up being the light of the approaching train. I urge that we temper our enthusiasm for any blandishments from the Government—not that my noble and learned friend on the Front Bench would ever be guilty of offering anything as vulgar as a blandishment.

The noble and learned Lord, Lord Judge, has made all the points that need to be made and has made them better than I possibly could. However, if one strips away the words “the Lord Chancellor” and replaces them with the words “Secretary of State”—and Clause 6(2) condescends to do that, because clearly the Lord Chancellor cannot agree with himself and has to agree with his schizophrenic self, the Secretary of State—and if one strips away the ancient legal title and office of Lord Chancellor, one finds that one is in fact dealing with a political Minister in a spending department at the Ministry of Justice and that he or she will be placed under all the pressures of both self-interest and Cabinet responsibility that go with being in a spending department. If it is inconvenient for the Chancellor of the Exchequer to allow the Secretary of State to agree with the Lord Chief Justice, he will disagree with the Lord Chief Justice. We should not be under any misunderstanding about that.

In the what must now be 20 years since the removal of the office of Lord Chancellor as head of the judiciary—and I am standing behind one of the finest exemplars of that office—with that position having now gone to the Lord Chief Justice, the metaphorical gap and indeed the actual distance between the law and Parliament has grown immeasurably. The understanding between the law and those who administer it and politicians has grown immeasurably. One only has to look at the record of some Secretaries of State for Justice who have succeeded my noble and learned friend and who do not have that intimate knowledge of the administration of justice to understand the difficulties and dangers that the noble and learned Lord, Lord Judge, anticipates—and have happened already.

While I support the sensible policy behind the Bill, all kinds of little niggles pop up from time to time which will destroy its purpose. They will make it less beneficial for the public good than it would otherwise be, were the suggestions made in the previous debate by the noble Lord, Lord Marks, and in this current debate by the noble and learned Lord, Lord Judge, taken into account. As a supporter of the Bill and the Government, I urge them not to allow themselves to be swept down the river of consultation when the river of agreement is a much safer journey to take.

[Lord Beith]

My Lords, the messages are getting more complicated and conflicting between approaching trains, rivers and nuclear options. Perhaps we should recognise that we are replaying debates in which some of us were involved when it was attempted to abolish the Lord Chancellor overnight and there emerged from that process the system we have now. It is very relevant to the noble Lord’s amendment and to the powerful points he has made in support of it. The change in the role of Lord Chancellor, quite correctly emphasised by the noble and learned Lord, Lord Garnier, as Secretary of State for the Government as well as Lord Chancellor, stretches forward to influence what we ought to be doing in this legislation.

Parliament: Freedom of Speech and the Rule of Law

Lord Garnier Excerpts

Thursday 23rd May 2019 Lords Chamber

[Lord Garnier (Con)]

My Lords, I thank the noble and learned Lord, Lord Brown of Eaton-under-Heywood, for initiating this debate. He has calmly set out his arguments with authority and care, which comes as no surprise, despite his obvious disappointment at the conduct of the noble Lord, Lord Hain, in deliberately breaking a court order last October not to identify a party to a legal dispute. I agree with the noble and learned Lord’s arguments and his conclusions, subject to the tempering of those conclusions in the speeches of the noble Lord, Lord Empey, the noble Baroness, Lady Deech, and my noble friend Lord Norton.

I have known the noble Lord, Lord Hain, as a political opponent and as an acquaintance for the past 25 or 30 years. I sincerely admire much of what he has done in public life, and I desperately wanted him to convince me today that what he did last October was right, but I am afraid he failed. I draw the House’s attention to my interests set out in the register and, in particular, to the fact that for more than 40 years I have practised as a barrister specialising in media law, the law of privacy, confidence and contempt. When I was Solicitor-General, I frequently had to prosecute cases as contempt, dealing with respondents who had in one way or another interfered with the course of justice in particular cases.

That said, I am entirely familiar with the vital importance in our democracy of free speech in and out of Parliament, the importance of having free media and fearless journalists, and the importance of having laws that protect our right to freedom of expression. Any curtailment of that right must be necessary and proportionate and, if our freedom of expression is to be guaranteed or its curtailment is to be legitimate and acceptable, we can in the final analysis rely only on the law and our justice system to protect our interests,

If we are to rely on our justice system and the law to provide that protection, we need to accept that sometimes, for the greater good of society, decisions or laws may not always suit us personally. For example, I may prefer to keep some information about me private because it is personally or politically embarrassing, whereas someone else may feel that that that information ought, in the public interest, to be made known. I may find somebody else’s comments about me or my conduct offensive and unwarranted, while that person may hold the view that his opinion of me or my conduct is warranted and entirely fair.

Over the centuries, there has been a healthy but often heated debate about where as a general rule, and where in a particular case, the line lies between on the one hand an individual’s right to privacy and the protection of their reputation, which I distinguish from self-esteem, and on the other the right to freedom of speech. Of course, there will be occasions when people confuse what is interesting to the public and what is in the public interest but, absent an agreement on the matter between the individual concerned and the person wanting to publicise it, in a civilised society we ask a dispassionate, disinterested judge to assess the facts of the matter and apply the law, be it our own domestic statute and common law or imported law in international treaties or conventions, such as the European Convention on Human Rights.

I venture to think that judges trying defamation cases in the High Court or dealing with a contempt matter before the implementation of the Human Rights Act would have taken the same liberal view of the law relating to freedom of speech as they do now, as well as recognising that some things are matters for Parliament and some are matters for the courts. Sir Stephen Sedley, a former Lord Justice of Appeal, had it exactly right when he said, in explaining the real significance of freedom of expression in a case involving the unlawful arrest of a street preacher:

“Free speech includes not only the inoffensive but the irritating, the contentious, the eccentric, the heretical, the unwelcome and the provocative provided it does not tend to provoke violence. Freedom only to speak inoffensively is not worth having”.


However, he also said on another occasion:

“If Parliament does not like what the courts do, it changes the law. The sovereignty of Parliament as the final source of law and the sovereignty of the courts in interpreting and enforcing the law are the twin pillars on which democracy and the rule of law in the UK rest”.


“Exclusive cognisance” is an old-fashioned term but I think we know what it means.

We all have rights and obligations that need to be respected if we are to live in a tolerant society. Call it a rules-based society, call it respect for the rule of law, call it a world in which we accept that there is no reason not to have a bit of give and take—an understanding that sometimes we have to meet half way and that we cannot always have things our own way—but, however we describe it, we need to live our public and private lives in a way that respects the opinions and customs of others. That does not mean that we are not allowed opinions, that we cannot criticise judges for the decisions they make or that we all have to think and do the same. One of the central purposes of this very Parliament is to provide a forum for argument.

Through the Bill of Rights, the law of the land protects us from arrest or litigation for what we say in this House and in the other place, but we cannot, without damaging our way of life, take unto ourselves the power to make decisions which are entirely or largely selfish. The Bill of Rights enshrined in law what has come confusingly to be called “parliamentary privilege”. Privilege is a legal term with several different meanings depending upon its context.

We know now that our privileges not to be arrested and sued for what we say here are not our own but are held on trust from the public so that we can the better carry out our public duties. That relationship between the public, our uncodified constitutional arrangements and us as trustees is very delicate, and much of it is based on convention, mutual respect and understanding for and between the different elements of our mutual system of law and governance. So it is all the more important for the proper working of our Parliament, courts and Government that none of those constitutional bodies behaves in a way that damages that respect or mutual understanding. In this I entirely agree with the noble and learned Lord, Lord Thomas.

Time prevents me from developing these arguments further, but I urge my noble friend the Minister and all noble Lords that, if we are to run this place in a civilised and sensible way, we must have mutual respect for the various institutions of government and not trample all over them for personal gain.

Legal Aid, Sentencing and Punishment of Offenders Act 2012

Lord Garnier Excerpts

Thursday 7th February 2019 Lords Chamber

[Lord Keen of Elie]

I am obliged to the noble Lord. Looking more generally at advice and assistance, we want and propose to look at how we can engage with people at a very early stage, so that we can evaluate their legal problems—and, indeed, sometimes problems that are not entirely legal but that lead on to legal issues if not addressed quickly enough.

In the specific area of social welfare law, we will seek pilots that evaluate various technological solutions and look at the cost benefits of trying to approach matters in that way. I mentioned earlier the idea of web-based material and the development we have seen in digital access to legal advice. For example, we have already instituted such digital access in the areas of uncontested divorce and debt, so that people can, without the need for legal advice, be guided through what should be a relatively straightforward process for the resolution of certain legal issues.

[Lord Garnier (Con)]

My Lords, in thanking my noble and learned friend the Minister for repeating the Lord Chancellor’s Statement, I declare an interest as a member of the private Bar, albeit I do not do any legal aid work.

The Minister said he was disappointed by the reaction of the noble Baroness and the noble Lord to the Lord Chancellor’s Statement. I was the Opposition spokesman in the Lord Chancellor’s Department from 1997 to 1998, and then variously shadow Attorney-General throughout the Blair and Brown Governments. I can assure my noble and learned friend that I made exactly the same sort of speeches as the two opposition Peers made just now. This is a continuing and almost intractable problem, and it is of course a question of judgment and priorities when resources are scarce. But there is much to commend in what my noble and learned friend has said, albeit I would like to see plenty more done.

I welcome the £3 million support for litigants in person. However, it is fair to say—I agree with the noble Lord, Lord Marks—that the increasing presence in our courts of litigants in person not only makes our court system more sclerotic but feeds into the lessening of morale in the judiciary. Although not immediately germane to the post-implementation review, that is a factor that needs to be thought of within and outside its scope.

Finally, and most gently, I urge my noble and learned friend to see whether the Secretary of State and the Treasury can do something more—I know they have been doing some things—to assist in the funding of the criminal legal aid system. If there is one aspect of the criminal justice system that most worries me, it is the underremuneration of criminal legal aid lawyers, both solicitors and barristers.

I daresay that many will say, “Here’s one fat lawyer seeking to protect other fat lawyers”, but it really is not like that. I urge my noble and learned friend to do what he can to enhance the remuneration of legal aid lawyers in the criminal justice system. They have taken a pay cut of 10% or 20% over the last few years. Until that is recovered, our criminal justice system will be much hampered and hindered.

[Lord Keen of Elie]

My Lords, we recognise the importance of a viable, properly trained and effective criminal Bar in order to maintain suitable access to justice for all. That is demanding in the present circumstances. Quite recently, as my noble and learned friend Lord Garnier will know, we have increased the level of fees for criminal justice work. That was done in discussion with the Bar Council in order that it could be suitably targeted to the areas where it was most needed. But I will not suggest that no more needs to be done. I quite understand the observations made about the need to maintain a viable, effective criminal Bar in that respect.

We are conscious of the issue of litigants in person, particularly of the need to avoid the simple matter of cost transferring: in other words, you relieve one area of costs by reducing legal aid provision only to find that you increase costs elsewhere because of the demands on the court system and the judiciary, because with an increasing number of litigants in person, we may find that court hearings take longer and are more demanding. We are conscious of that when looking at this overall. I reiterate that legal aid provision as such is only one aspect of a wider ecosystem that is designed to ensure access to justice.

Civil Jurisdiction and Judgments (Amendment) (EU Exit) Regulations 2019

Lord Garnier Excerpts

Tuesday 29th January 2019 Grand Committee

[Lord Marks of Henley-on-Thames]

The noble Lord has understood it absolutely correctly and has plainly made the point more eloquently than I did. It was the point I made when I mentioned that the noble and learned Lord had accepted that that was how the Government’s impact statement worked. The noble Lord is right to draw the distinction between the,

“impact on business, charities or voluntary bodies of this instrument is, on balance, expected to be positive when compared to making no changes to retained EU law”,

and the real meat of this, which is in the last part of the paragraph:

“However, as compared to the pre-Exit position, common law rules on jurisdiction provide for a discretionary rather than mandatory stay in the case of parallel proceedings. This creates an increased risk of parallel proceedings”—


precisely the point I was making—

“whether the court in the United Kingdom is seised first or second. This could increase the number and complexity of disputes before the courts and the cost of litigation for parties. Common law rules also involve a less efficient mechanism for recognising and enforcing judgments than using existing EU rules deriving from the Brussels regime, which will cost those seeking to have their judgment recognised in the UK more money and time”.

Addressing the Committee, I attempted to add my further point that it is not just the cost to litigants who go through all this but the attractiveness of the United Kingdom as a location for doing business that suffers from the fact that you cannot rely on a uniform system.

Before closing, I simply ask this. We are in this dreadful position of being a very short time away from the risk of a no-deal Brexit. As Sabine Weyand put it yesterday—I make no apology for her being blunt, because I think she was right to be—we could fall into it “by accident” rather than on purpose. What a travesty for a Parliament almost entirely opposed to a no-deal Brexit to be at risk of forcing our country into this calamitous outcome by accident—but that is where we are. So I ask the noble and learned Lord: in the circumstances, given that almost everybody accepts that this reciprocal set of arrangements for the justice system is of such crucial importance to our functioning legal system, what talks have there been at Secretary of State for Justice level with other members of the European Union to try to preserve some element of a reciprocal system that will replace what we have, even if we walk into this catastrophe by mistake?

[Lord Garnier (Con)]

My Lords, I seek your Lordships’ indulgence. I was a little late to this sitting of the Committee because I was detained listening to the wonderful oration of the noble Lord, Lord Foulkes, in the Chamber. He made a number of interventions.

[Lord Foulkes of Cumnock]

With the permission of the noble Baroness, Lady Vere, I intervene merely to apologise to her, because I realise that she will be as upset as I am about what we are doing at the moment. She was a very good director of ConservativesIN and campaigned very hard for us to stay in Europe, so I realise she must be deeply hurt by what her Government are undertaking at the moment. I apologise.

--- Later in debate ---

[Lord Garnier]

We are not only in danger of talking about forum non conveniens but interventus illicitus. I will advance one simple point. I entirely accept what my good friend, the noble Lord, Lord Marks, has said on the unfortunate state of affairs we are in, and would be in were we to have a no-deal departure from the European Union. Surely the whole point of today’s exercise is to anticipate that and to ensure we have mechanisms in place to mitigate the consequences he has so correctly spelled out. Yes, it is all very sad and much to be regretted, but it would be even more to be regretted if my noble and learned friend Lord Keen were unable to move this Motion to its sensible conclusion.

[Lord Marks of Henley-on-Thames]

I will simply respond to that, because in a sense it is an intervention on me. I accept that this is conditional in the sense that the noble Lord mentions. However, my fundamental point was that the importance of this aspect of no deal has been woefully underestimated in considering how dangerous the concept of no deal is. To that extent, I regard the points I have made in highlighting that danger as valid, because no deal is profoundly to be shunned.

Non-Contentious Probate (Fees) Order 2018

Lord Garnier Excerpts

Tuesday 18th December 2018 Lords Chamber

[Lord Northbrook (Con)]

My Lords, clearly, after an hour and 20 minutes, this non-contentious probate order is misnamed. It is interesting that opposition to it unites the noble Lords, Lord Marks of Henley-on-Thames and Lord Beecham, and the Daily Mail. I am also in strong agreement with my noble friend Lady Browning that it is a distinctly un-Conservative policy that will alienate our natural supporters once a lot of them have woken up to what is going on.

I will not talk about the order in detail because everyone else has discussed it, but the fee of £6,000 for an estate of £2 million is high if, for instance, a main residence is taken into consideration. It is not just I and other noble Lords in this House who disapprove of the order. A helpful Law Society brief which I do not think has been touched on so far states:

“The service involved in a grant of probate is the same whether an estate is worth £50,000 or £2 million. However, under the new proposals, some estates would face a charge of £6,000. This is excessive … It is unfair to expect the bereaved to fund/subsidise other parts of the court and tribunals service, particularly in circumstances where they have no other options but to use the probate service”.


Echoing the Law Society’s concerns, as many other noble Lords have stated, our Secondary Legislation Scrutiny Committee has stated that it has very serious concerns that the order,

“arguably amounts to a ‘stealth tax’ and, therefore, a misuse of the fee-levying power”.

Similarly, the Joint Committee on Statutory Instruments, as other noble Lords have stated, raised concerns as to whether the order is intra vires, noting that it makes an unexpected use of the power conferred by the enabling Act.

The Law Society wholly agrees with the two committees that the current proposed fee is a misuse of the fee-levying power under Section 180 of the Anti-social Behaviour, Crime and Policing Act. I will not join in the debate about this section and the different views expressed by the noble and learned Lord, Lord Brown of Eaton-under-Heywood, and the noble Lord, Lord Pannick, except to say that once you start levying this sort of thing, what is to stop any amount being levied by way of an extra fee, or even applying to other aspects of the legal system?

[Lord Garnier (Con)]

Surely the point therefore is to take on board the point made by the noble and learned Lord, Lord Judge: attack the primary legislation, not the secondary legislation. We have rather missed the boat on the primary legislation.