The House of Lords Bill

One of the Bills not referred to in The Queen's Speech was the House of Lords Reform Bill.  This is a private member's bill introduced by Lord Steel of Aikwood.

It will create a Commission to consider individuals for Life Peerages.  Names could be put forward to the Commission who will assess them against criteria which will include "conspicuous merit" and "willingness and capacity" to contribute to the Lords but the Commission will be able to propose additional criteria.  In making any proposal for additional criteria they will have to consider the "diversity of the population of the U.K".  Any criteria must be "laid before" Parliament and could be annulled by a resolution of each House.  Surely, an affirmative vote ought to be required to bring them into force?  The Commission will present names to the Prime Minister who is then the only person who may recommend names to the Crown.  Whether the P.M. will have any say (e.g. veto) over the names is unclear on the face of the Bill.

The Commission will have 9 members who will be nominated jointly by the Speaker of the House of Commons and the Lord Speaker of the House of Lords.  There will have to be 4 members independent of political parties and there must be 4 Privy Councillors.  The Bill provides for some disqualification from being a Commissioner - e.g. having made a donation to a political party within the last 2 years.

The new Commission procedure appears to remove the right of a Prime Minister to simply nominate someone for a peerage.  Prime Ministers have frequently nominated new peers - e.g. upon dissolution of parliament.  [See the latest list].

The Bill provides for the final phasing out of the hereditary peers who were allowed to remain under the House of Lords Act 1999.  As each dies, he or she will not be replaced.

A further long overdue reform is that a peer could lose membership of the House of Lords if found guilty of and imprisoned for more than one year for a criminal offence.  [The wording of the Bill on this is matter ought to clarify whether suspended sentences of imprisonment are included].  Whether Lord Steel's bill will reach the statute book must be doubtful given that the new government are setting up a committee to examine reform of the House of Lords (including election) and tasking the committee to prepare proposals by the end of 2010.

A solicitor tells of his experience as a juror

 The Law Society Gazette for 27th May has published an article by a solicitor who served as a juror in the Crown Court.  He says that it was a genuine privilege and a hugely enlightening experience.  His article is well written and is definitely worth reading.

Criminal liability of Children and their trials

Two boys (now aged 10 and 11) have been convicted of attempted rape - see The Independent 24th May 2010. The trial was held at the Old Bailey and has sparked outrage in some quarters (especially children's charities) - see the BBC report.  The age of criminal responsibility in England and Wales is 10.  This is among the lowest in Europe and the United Nations has recommended that the age be raised -see House of Commons Briefing Paper February 2009.   Law and Lawyers looked at this back in March 2010. when, with rather unfortunate timing, the Children's Commissioner raised the issue.  Scotland is considering raising the age to 12 years.

The method of trying children and young persons in the Crown Court for serious crimes is crying out for radical reform. [In April, Law and Lawyers looked at the trial protocol to enable trial of serious sexual offences within youth courts].  It is now 17 years since the trial of Robert Thompson and Jon Venables for the murder of James Bulger.  In 1999 their cases were considered by the European Court of Human Rights (Grand Chamber) which was critical of the trial process used - see the judgements - T v UK and V v UK.  Since the trial of Thompson and Venables there has been considerable improvement, particularly with regard to "special measures" to enable child witnesses (and other vulnerable witnesses) to give their evidence.  Nevertheless, a child must still be subjected to live cross-examination which, of course, may be a considerable time after the events in issue.  There is little doubt that "special measures" have been (generally-speaking) beneficial to the trial process but the serious question remains as to whether different processes and procedures are required.

This is a complex issue but it should be examined with some urgency.  Former D.P.P. Sir Kenneth MacDonald has said - "..., we've been witnessing a spectacle that has no place in an intelligent society: very young children do not belong in criminal courts."  He must be right.

See also - "Children and Young People Now" - 25th May 2010

Scotland - a rather different approach:

Interestingly, since 1971, Scotland has used a system of Childrens Hearings to which those under age 16 (sometimes under 18) can be referred unless the Procurator Fiscal considers the seriousness of the case to justify trial by the Sheriff's Court or the High Court of Justiciary. It cannot however be claimed that everything about the Scottish Youth Justice system is perfect though the Childrens Hearing system is generally well regarded.  The Scottish system came out of the Kilbrandon Report of 1964. 

For an interesting article see "The Politicization of Youth Crime in Scotland .." (Laura Piacentini and Reece Walters) and see The Guardian 26th May for a useful article about the Scottish system (author Douglas Bulloch, a former Chairman of the Scottish Children's Reporter Administration).


Centre for Crime and Justice Studies - "10 years of Labour's Youth Justice Reforms" - May 2008.

Addendum - 7th June 2010:  Paul Mendelle QC, the Chairman of the Criminal Bar Association, has called for the age of criminal responsibility to be raised.   See Telegraph 7th June.

The Queen's Speech - a lot to do

The State Opening of Parliament was held on Tuesday 25th May with the usual pomp and pageantry.  The real business of Parliament now begins and interesting days lie ahead.  The Queen's Speech contained 23 Bills (and one draft Bill) - see Number 10 for a list of the Bills and The Guardian 26th May.  Many of the Bills are concerned with implementing economic policy (e.g. Office for Budget Responsibility Bill; Financial Reform Bill; Welfare Reform Bill etc).  Of particular interest to Law and Lawyers will be the Parliamentary Reform Bill, Scotland Bill (aimed at implementing recommendations of the Calman Commission); Police Reform and Social Responsibility Bill; Freedom Bill; Terrorist (Asset - Freezing) Bill; European Union Bill and the draft Parliamentary Privilege Bill.

To the relief of many, there is no blockbuster Criminal Justice Bill - (as such).  Relief is likely to be temporary since there are many areas of the criminal law and the criminal justice system which ought to be improved.   Similarly with civil cases - e.g. the very pressing issue of costs.  Legal Aid is a major issue for both criminal and civil justice.

The Freedom Bill perhaps comes closest to a criminal justice bill since it will deal with a range of matters such as the DNA Database, peaceful protest, trial by jury etc. This Bill will also address reform of the libel laws.  Also, Lord Lester of Herne Hill QC has introduced a Private Member's Bill on Defamation reform.  Lord Lester's proposals merit very serious consideration.

This is a big legislative programme and it is to be wondered just how much detailed scrutiny will actually be applied to each Bill.  The progress of the various bills can be see via the Parliament website.  In addition to the legislative programme, there is a massive amount of work to be done in other areas.  Some 22 such areas are listed on the Downing Street website.

Governmental News and Reviews but not all will be plain sailing

The State Opening of Parliament will be on 25th May.   This is one of the State occasions when the full panoply of Her Majesty The Queen attending Parliament can be seen.  The "Queen in Parliament" is the U.K's legislative body.  Any Bill must, in order to become law, pass both Houses of Parliament and receive the Royal Assent though, in practice, the latter is a formality.  The Queen will read the "Queen's Speech" setting out the plans for the forthcoming session of Parliament.  The speech is followed by debate in the House of Commons.  The detail of the speech is eagerly awaited and this is particularly the case with the first speech of a new Parliament.
 

The Ministry of Justice - [now headed by Kenneth Clarke] - has announced the responsibilities of the Ministerial Team.  Significantly, responsibility for Youth Justice is now entirely with the Ministry of Justice instead of the previous division between MoJ and Education.

Some 27 Policy Reviews have been announced in the full version of the Coalition Agreement.  The Civil Liberties proposals are in section 3 of the agreement; Policing is at paragraph 6 and Justice at paragraph 20.  This is a very full programme over the entire range of government activity.  The reviews will look at important topics such as the Human Rights Act 1998; the Extradition Act 2003; House of Lords Reform and Sentencing Policy.   The Extradition Act 2003 has been particularly criticised because of the arrangements between the U.K. and the U.S.A.  The Gary MacKinnon case exemplifies these arrangements.

Also, there will be a review of legal aid aimed at making it work more efficiently.  Proceeds from the "Victim Surcharge" will be used to deliver up to 15 new rape crisis centres as well as putting those which exist on a more stable basis.  A further and unexpected announcement is that anonymity will be extended to defendants in rape cases.  This is likely to be extremely controversial - see The Guardian 20th May.  Under the Sexual Offences (Amendment) Act 1976 s.6, defendants had anonymity but this was removed by the Criminal Justice Act 1988 s158(5).


The Electoral Commission has been looking at the problems with voting at the General Election on 6th May.  See their announcement and report.  The HUMAN RIGHTS BLOG has a good article on this.  LIBERTY has responded to the Commission's report.

Costs: "Bordering on Despair"

Litigation can be hideously expensive.  This seems especially so in actions for Defamation (Slander and Libel) and in Boundary Disputes.  The previous government had a commitment to looking at reform of libel actions and the present government has stated a wish to take forward reform (including costs).  Work done by the Ministry of Justice may be seen at March 2010 report.  See also BBC 3rd March 2010.

Boundary disputes between neighbours are another area where some reform of procedure should be considered so as to reduce costs.  Perhaps a mandatory requirement to refer the dispute to alternative dispute resolution such as binding arbitration.  A very good article on these disputes may be read at "Loathe Thy Neighbour".  In a recent case - Charalambous v Welding [2009] EWCA Civ 1578 - the dispute was over a few feet of land worth about £5000 but the costs were almost £250,000.  One judge has stated - " ... boundary disputes can be fought with a passion which seems out of all proportion to the importance of what is involved in practical terms."

Lord Justice Jackson's Review of Costs may be seen here.

The Daily Mail 18th May offer another example of this litigation madness.

Addendum 24th May 2010:  The Times 24th May has published an item by Lord Lester of Herne-Hill QC who is introducing a Private Member's Bill dealing with Defamation Reform.  Lord Lester argues that the current law stifles free speech and the use of Conditional Fee Agreements (CFAs) allows lawyers acting for claimants to be enriched at the expense of writers and publishers.  The present government is committed to taking forward some reform in this area of the law.  Lord Lester's Bill may assist in this process.

Addendum 27th May 2010:  Here is a link to Lord Lester's Defamation Bill. Some analysis of it - here.

House of Lords - Reform

An unelected House of Parliament stands in contradiction to the democratic idea of a parliament elected by the people.  Whilst most modern politicians appear to accept that position, reform of the House of Lords is proving to be a difficult issue.

The agreement between the Conservatives and the Liberal Democrats envisages setting up a committee to look at reforming the House of Lords into a "wholly or mainly elected upper chamber on the basis of proportional representation".  No alternative name for the reformed chamber has been suggested (e.g. Senate).  The committee will report by December 2010.  It is interesting that the agreement referred to "single long terms of office" and a "grandfathering system for current peers".  The very terms of the agreement appear to have already limited the terms of reference of the committee.

We await details of what is a "long term of office" though it is believed that a term as long as 12 years may be on the cards.  Would it not be preferable to limit the length of a term of office to 5 years but permit the person to be re-elected a maximum number of times (e.g. once or twice)?

It appears that the coalition government is about to create 100 new Conservative/Liberal Democrat peers - The Times 17th May - so that the House of Lords membership more accurately reflects the results of the recent general election.  Of course, the aim of creating so many new peers is to remove the majority in the Lords which Labour has enjoyed since 2005.  In addition, further peers will be appointed as a result of the Dissolution Honours and obviously many of those will take the Labour whip.


It would seem that all of these appointees would enjoy the "grandfather rights" referred to in the coalition agreement and it would therefore take many years before they disappear from a supposedly reformed upper house.

Little of this seems very satisfactory.  To avoid a reformed Lords becoming unwieldy, it would necessarily require a sensible maximum number of members.  The retention of large numbers of appointed peers would limit the number of persons who could be elected and would slow down the pace of reform.  Their retention would also result in two classes of members - those with peerages and those without (assuming that elected members would not receive peerages).

Would it be preferable to grasp the nettle, make a fresh start and move to a fully elected second chamber at the earliest date possible?   To achieve that would entail the appointed peers being removed in the way that the majority of the hereditary peers were removed by the House of Lords Act 1999.



Addendum 18th May:   The Guardian comments that some 170 new "Coalition" peers would be needed.  Between them, the Conservatives and Liberal Democrats already have a significant political majority in the Lords (260 to Labour's 211 - with crossbenchers, bishops and a few others making up the rest of the House).  The Times also points out that well in excess of 100 peers would be required if the Lords is to mirror the result of the last election.  They ask: what if the next election produces a dramatically different result?  Would the new government then appoint further peers to achieve a further rebalancing?

The possible consquences of this make the case for reform urgent and unarguable.  A democratic upper chamber will never be achieved if things continue in this vein.



Addendum 24th May:  The Times 20th May published a suggestion of Professor Dawn Oliver that the House of Lords be replaced by a new "Commission for Executive Scrutiny".  I would acknowledge that this is a suggestion from an eminent source.  The proposed Commission would not be part of parliament but would examine bills and propose amendments and might even have power to impose delay.  There are enormous advantages to having a BICAMERAL Parliament since one House acts as a check on the other.  A UNICAMERAL Parliament could, for example, extend its own lifetime and, with a large enough government majority, might engage in all sorts of "excesses".  For my part, I would not wish to see an Executive Scrutiny Commission.  A mostly elected and reformed upper house - (Senate) - is surely preferable and would be a true part of our national parliament