Examination of Witnesses (Questions 20
- 39)
TUESDAY 16 OCTOBER 2001
THE RT
HON LORD
IRVINE OF
LAIRG QC AND
SIR HAYDEN
PHILLIPS KCB
Mrs Dean
20. What lessons have emerged from the awareness
training in Whitehall on freedom of information?
(Lord Irvine of Lairg) There is awareness training;
there is operational training. I do not think that any lessons
as such have arisen other than the need for the training itself.
The departments have to be ready for the implementation of the
Act and the most important issue is of course when the Act is
going to be implemented, but the preparation is obviously necessary.
It is ongoing. Every department has got a freedom of information
champion and so on. In a sense I see this awareness training as
a successful parallel to, if you like, the two years' delay we
took in implementing the Human Rights Act which was much criticised
at the time: "We have waited long enough for a Human Rights
Act. Why do we not just implement it?" Similarly, I see the
awareness training as a real process which should mean that the
Act will be successfully implemented. The big issue of course
is, when is it going to be implemented?
21. Which leads me on to the next question.
What do you expect to report to Parliament by the end of this
month on the progress towards implementation?
(Lord Irvine of Lairg) I led with my chin there of
course. How do I put it? Because we have not yet finally decided
and because the report is not yet ready and decisions have not
yet been made, I cannot tell you what I am going to say in the
report to Parliament. I think there are two basic approaches,
and let me share this with you and say that there is much to be
said for both approaches and tell you quite honestly that we have
not actually decided between the two. It is basically the difference
between what you could call a big bang approach and a stage by
stage approach. The Act has to be fully in force by 30 November
2005. It is important to mention that because that is the period
of time that we are talking about. We could implement the Act
in stages by a type of public authority, perhaps—probably—starting
with central government. Then of course what you would have to
do is decide on some kind of time programme. Because, as you know,
these publication schemes are hugely important, the publication
scheme of each department has to publish with the assistance of
the Information Commissioner, it seems to me that on a stage by
stage approach it would be sensible to have the publication scheme
published on a date and then for the individual's right of access
under the Act to come into force a period of time after the publication
of the publication scheme in the particular area. What might that
period of time be? For argument's sake, six months or nine months.
Do not start adding up my notional figures because I might get
beyond November 2005 which would not do. You could have a publication
scheme date for central government first and then you could have
local government, for argument's sake, nine months or a year later.
Then you could have a bit later, let us say, the police authorities,
the armed forces. Then you could have the health service. Then
later you could have the schools and the universities, and then
you could have, if you like, all the rest. You could have a staggered
process of publication schemes which would obviously have broadly
to correlate to readiness within each area, and then you would
have to take a realistic stab at the interval of time that should
elapse before the individual's right of access can be engaged,
always remembering that you are working to a deadline of November
2005. The other way of looking at it would be to roll out the
publication schemes perhaps across a similar model, but then have
a big bang so that the individual right of access does not come
until a single date before November 2005, obviously. I will be
quite frank: there is discussion going on around these two alternatives.
Both can be argued but what I can say is that one or the other,
a variant, is going to happen and that we will of course comply
with the statutory outer limit of November 2005. Again I have
been hinting about delay and I do not apologise for this delay
because I said in answer to your colleague that a large part of
the success of the Human Rights Act has been attributable to taking
the necessary time.
Chairman
22. Is that not the case for not going for a
big bang?
(Lord Irvine of Lairg) Yes. There is a powerful case
for not going for a big bang, for doing it gradually, and modulating
how you go according to readiness in particular areas. On the
other hand, there are in fact arguments the other way as well
but that is the broad outline. What you should also know is that
this is a hugely ambitious Freedom of Information Act. It applies
retrospectively as well as prospectively. We could have made it
apply only to future paper. It applies to all past paper. That
is quite staggering in itself. It also applies to about 50,000
bodies, so it is big stuff.
Bridget Prentice
23. Lord Chancellor, I want to take you back
to Auld if I may. You have explained the importance of it within
your departmental remit. You have already given us some information
about the consultation that has taken place. I wonder if I could
tease out from you a little bit more about when you think you
will be able to make ministerial decisions in order to introduce
legislation?
(Lord Irvine of Lairg) We have only had the report
for a very short period of time. The period for public comment
ends on 31 January 2002. We will respond in the form of a White
Paper, which I hope will be published in the spring of next year.
That is a pretty good timetable. Of course there is going to be
huge debate, I envisage, in the interim when the full breadth
of all this sinks in. Again, it really is big stuff. Would it
be convenient, Chairman, if I just said in a few words how big
it is?
Chairman
24. Yes, please do.
(Lord Irvine of Lairg) This is not necessarily the
Government's decisions. This is what Auld is saying. This is why
this is really a hugely radical document which will also be highly
controversial in particular areas, not least in its impact on
jury trial. He says that the crown court and the magistrates court
should be unified into a single criminal court. It is going to
be called the criminal court. It is going to have the same powers,
the same practices, and it is going to have a common administration.
All cases should start and finish in the same court; no more of
this nonsense of committing for trial from one court to another
doing half of a case in the magistrates court and then committing
it to the crown court. The criminal court, he says, should be
divided into three divisions: the magistrates division, the district
division and the criminal division. I dare say you will be very
interested in each of these. Then, importantly, he says there
should be a single, centrally funded, executive agency as part
of my department, the Lord Chancellor's Department, responsible
for the administration of all courts, civil, criminal and family,
replacing the court service and the magistrates' court committees
but with a huge amount of delegated local responsibility. That,
he says, would, among many other beneficial things, promote electronic
sharing of information between courts. Then he proposes a big
new IT agenda, that there should be a new, single IT system for
the unified criminal court. Then, getting into the area of big
controversy, he says that in either way cases, that is to say,
the cases where today the defendant can decide whether to be tried
in the magistrates court or to go for jury trial, allocation is
to be decided by the court. It is not going to be decided by the
prosecution; it is not going to be decided by the defence. These
are big controversies, as we know, not merely from the fate of
the mode of trial bills of more recent memory, but also because
that is what the Runciman Royal Commission recommended, that is
what the Narey Committee recommended on delay. Because of this
district division, where a professional judge could sit with two
lay magistrates, it is actually a huge vote of confidence in the
lay magistracy because these two lay magistrates in trials in
the district division would be a sort of quasi lay jury. Then
he has got very important things to say about hearsay evidence
and evidence of previous misconduct and so on. Basically we should
be getting rid of a lot of the highly technical rules which may
be food and drink to the lawyers but are a needless technicality.
Maybe we should trust fact finders more to give relevant evidence
the weight it deserves. Then he makes really quite dramatic recommendations
about the conduct of the trial itself and what the judge should
do, really heralding an end to these huge summings up that judges
give at the ends of trials. He suggests that there should be a
case and issues summary settled right at the beginning of the
trial. It may have to be modified as the trial progresses and
the issues are refined, and a check list for the jury of what
this is really about, and then a really very bold recommendation
indeed, on which I look forward hugely to the results of consultation:
the juries at the end of the day should be asked questions, they
should be asked a whole list of questions, on each of which they
have to give an answer and, depending on the answers they give,
the result will ineluctably be either guilty or not guilty, and
that carries with it the implication of getting rid of these hugely
time-consuming summings up at the end. This is dramatic stuff.
25. It certainly is. Given that it is such dramatic
stuff, how do you think you will implement those reforms assuming
that you will take on board many of the 328 recommendations? How
do you think you will manage to implement those without any system
overload? After all, the criminal justice system has been through
fairly major changes in recent years.
(Lord Irvine of Lairg) Lord Justice Auld I suspect
would be the first to agree that we have far too many Criminal
Justice Acts, that they keep coming forward like confetti, and
that it is time we just got the whole system right and give it
a rest—a rest in theory that is—and let it get on
with its job. He has proposed a very fundamental debate but it
would be the reconstruction of the courts in itself which would
require major legislation and we are in the course of assessing
just what the legislative impact would be. I think the shortest
answer I can give is that we might be able to cherry pick some
very important things for legislation this session but I do not
hold out any particular hopes of that. I think it is second session
material is the honest answer.
Chairman
26. And then some.
(Lord Irvine of Lairg) And then some, yes.
Bridget Prentice
27. Obviously it will take several years before
all this could be rolled out.
(Lord Irvine of Lairg) I think it will take several
years.
28. Have you made any estimation of the financial
cost of all this? What about manpower implications?
(Lord Irvine of Lairg) No. The answer certainly is
not yet. There should of course, in the streamlining of the trial
process, be considerable cost savings. There should also be a
very much better utilisation of court resources because unused
magistrates court space or—put it this way—frequently
unused magistrates court space could be space in which the district
division could sit. Obviously there will be big costs as well.
We have started thinking about it but any thinking is in its infancy.
29. Does that mean that there is a straightforward
"no" to my question about any budget between the departments
that are involved?
(Lord Irvine of Lairg) Decisions in principle have
to be taken first. There are certain quite important areas where
Lord Justice Auld has made important recommendations which are
capable of being regarded as discrete recommendations. I did not
really want to bog the Committee down in excessive detail but
you will all have noticed in the press recently the accounts,
all too frequent, of escapes from the dock and even attacks upon
judges and so on. There is a big issue about court security and
of course the police, as you know, have very considerable priorities
which inevitably in practice will be given a greater weight than
court security. Basically what Auld says is that the police have
got to do it. Alternatively, what we should have is a court security
service, and he cites the British Columbia model, and what that
would mean would be a uniformed court security service employed
by the court service but with all the powers of constables to
arrest and to detain, so they would be police officers by another
name. The presence of a uniform is actually very important from
a security point of view, and he has made a pretty firm recommendation
that, if not the police, then this is the way forward. That is
the kind of thing that you could take forward as a discrete issue
if you thought that there was a sufficiently pressing need to
do so.
Chairman
30. Is the purpose of all this change, do you
think, to save money or rather would one of the outcomes be to
save money or to spend more money at the end of the day?
(Lord Irvine of Lairg) Speaking for myself, and having
read all of Auld, I do not think he is really addressing money
at all. I think that what he is doing is looking at a more just
and efficient system. Of course every judge is aware of the need
to deliver efficiencies and so on. I would think that any reader
of Auld would think that this is an honest and disciplined attempt
to make a system which in many ways is quite chaotic, a much better
system. Nobody could say, reading Auld, that it is in any way
driven by considerations of economy.
31. You will have to address money even if he
does not.
(Lord Irvine of Lairg) I will, oh yes. We will have
to make the most detailed assessments, of course.
32. So if it is going to be more efficient does
that mean it is also going to be a little cheaper? Any student
of the legal system could see scope for the odd saving.
(Lord Irvine of Lairg) Yes. There are of course issues
such as building programmes, modern courts, investing in order
to save, a proper IT system. We are talking about real money.
That is classic investment to save. I am not in a position to
commit the Government yet to any specific Auld recommendations,
but the streamlining of the trial process, if it takes place along
the lines that he suggests, is bound to effect economies, yes.
David Winnick
33. The critics, Lord Chancellor, paint a different
picture. They say that the recommendations regarding juries would
undermine the jury system except in the most serious cases. Is
that not an accusation that should be taken very seriously by
all those who believe the jury system has served this country
well over many centuries?
(Lord Irvine of Lairg) First of all the jury system
does occupy a hallowed position and nobody is suggesting that
the jury system should cease to be the system that applies to
really serious crimes. Our present system of either way offences
only arises out of a report of a committee in 1975 by Lord Justice
James and a statute of 1980. There is no magic in freezing what
was the position at a particular moment in time. The fact is that
a colossal number of trials take place in the crown court. I think
the figure is that in about 55 per cent of the trials in the crown
court sentences are imposed which were well within the magistrates'
competence. I get letters all the time from disgruntled litigants
but nobody says that the magistrates provide an inferior form
of justice. The truth is that you will get a fair trial in this
country by a number of different means and the issue as I see
it is whether there is a broad range of cases where you do not
need the full panoply of trial by judge and jury in order to do
justice. I know this is the argument over the mode of trial bill
again. You have probably heard it ad infinitum, but if
Auld's recommendations are going to be taken up again, then you
are going to hear it again.
34. What about the slippery slope argument?
You start with what is being recommended. It is implemented and
then there is pressure that more serious cases should not be subject
to a jury.
(Lord Irvine of Lairg) People can always use the wedge
argument and say, "where will it ever end?", but we
are a pragmatic country. There is general acceptance I think in
this country, and it has huge judicial support too, that in really
serious cases there should be a judge and a jury. What we have
to ask ourselves is whether it is really necessary in order to
do justice in this broad range of either way cases. What Auld
is recommending, and we will all have to consider, is that yes,
there is a medium category of case. Why can justice not be done
by a qualified judge, a district judge, who has two lay magistrates,
who are experienced lay magistrates, the same people who try daily
summary cases in the magistrates courts, where on matters of fact
they will have an equal vote with the judge and they will be able
to out-vote him on factual questions of guilt or innocence? Why
is that not a perfectly fair trial? That is what Auld says and
we will all be expressing our views about it in the weeks of consultation
that lie ahead.
35. Your responses seem to give a very strong
indication that you are in favour of the recommendations. Would
that be a wrong interpretation?
(Lord Irvine of Lairg) I think you really misunderstand
an old hand as an advocate who is just putting the Auld case to
you.
36. Do I take it that you can put the case against
as well?
(Lord Irvine of Lairg) Oh, I could do that too.
37. Because I would like to hear the case against,
Lord Chancellor.
(Lord Irvine of Lairg) I could of course do it. There
are some very extreme views, as you know, regarding juries. Auld
certainly does not espouse them. Auld attacks them but from his
standpoint of course he would. There are some people who go so
far as to regard juries as an aspect of popular democracy and
set up juries almost on a level with Parliament itself. There
are some people who seriously say that juries are entitled by
their verdicts to say no to laws that they do not like or to say
no to prosecutions that they do not like, even although, if they
were to deliver a true verdict according to the evidence, they
would be convicting. We all know from history that juries have
done that in centuries past to avoid convictions of capital offences
where you could get your head chopped off for stealing something
worth 20 shillings. The jury is written into a huge traditional
popular affection in this country and the extremist form of putting
it is that it is virtually a sort of check on the executive and
a means of saying no on the part of the 12 good men or women and
true to what the state is trying to get them to do. That is the
extremist argument on the other side.
38. All lawyers can put both cases eloquently.
Otherwise they would not be lawyers.
(Lord Irvine of Lairg) I just do not get paid for
it any more.
39. Well paid, some may say. Tell me, Lord Chancellor:
the recommendation is the way juries are going to be asked questions.
(Lord Irvine of Lairg) That is one idea.
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