Select Committee on Home Affairs Minutes of Evidence

Examination of Witnesses (Questions 20 - 39)



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.


  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?


  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.


  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.


  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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