Blog “Civil liberties and the coalition government”, posted last Monday, dealt with the initial Tory and Liberal coalition agreement. It was to be followed in due course by a final and fully comprehensive agreement, and now, surprisingly early, comes that agreement. It is a schedule of over 400 objectives under 31 separate detailed headings (compared with only 11 headings in the original document).

The Civil Liberties section remains unchanged apart from one significant addition. This states: “We will establish a Commission to investigate the creation of a British Bill of Rights that incorporates and builds on all our obligations under the European Convention on Human Rights, ensures that these rights continue to be enshrined in British law, and protects and extends British liberties. We will seek to promote a better understanding of the true scope of these obligations and liberties”.

One of the new sections covers Crime and Policing. There is a string of proposals designed to ensure that police forces have greater freedom from Ministerial control, are better able to deal with the crime and anti-social behaviour and are much more accountable to the public they serve. There are also a number of specific alcohol related proposals – a ban on the sale of alcohol below cost price, an overhaul of the Licensing Act to give local authorities and the police much stronger powers to remove licences, a doubling of the maximum fine for under-age alcohol sales to £20,000, etc. There will be better recording of hate crimes against disabled, homosexual and transgender people, which apparently are frequently not centrally recorded.  And there will be a review of the operation of the Extradition Act – and the US/UK extradition treaty – to make sure it is even-handed.

Another new section goes under the heading of Justice. There are a number of measures designed to achieve more effective sentencing policies, as well as overhauling the system of rehabilitation to reduce reoffending and provide greater support and protection for the victims of crime. Other specific measures include delivering up to 15 new rape crisis centres, and give existing rape crisis centres stable, long-term funding using proceeds from the Victim Surcharge; and extending anonymity in rape cases to defendants. The introduction of effective measures to tackle anti-social behaviour and low-level crime is promised, including forms of restorative justice such as Neighbourhood Justice Panels. And yet another review, this time of legal aid “to make it work more efficiently”.

The full text of “The Coalition: our programme for government” can be found at:

 http://www.direct.gov.uk/prod_consum_dg/groups/dg_digitalassets/@dg/@en/documents/digitalasset/dg_187876.pdf

The Ministry of Justice has announced a further analysis of expert witness fees paid in legal aid work. It is seeking the support of civil and criminal legal aid solicitors in a data collection exercise being conducted on their behalf by the Legal Services Commission.

This follows a consultation exercise carried out last year on legal aid funding reforms. A response to the main consultation was published in December last year, but this did not include the proposals relating to experts’ fees. A further analysis, published in March this year, showed that 270 responses were received to the part of the consultation paper on experts’ fees. The majority of respondents were against imposing either fixed fees or the suggested hourly rates on the basis of current knowledge. There was a strong message from all categories of professional expert witness that if inadequate remuneration rates are imposed, this would lead to more experienced practitioners refusing to undertake the work, potentially leading to access and quality problems across England and Wales. It was accepted that something should be done to regulate rates charged as they were often variable and too high.

MoJ felt that several expert groups would be keen to assist them in gaining a better understanding of their work and better control over both price and quality. They therefore proposed a data gathering exercise to increase their understanding of the type of work experts undertake and what current rates are paid for this. Undoubtedly this is in response to the National Audit Office’s highly critical report to Parliament on the procurement of criminal legal aid in England and Wales and the Public Accounts Committee’s savaging of the Legal Services Commission. The PAC said: “Because the Commission is the sole buyer of legal aid, it is important that it knows it is paying the right price for this and the effects its policies are having on the sustainability of providers. But it does not know enough about the costs and profitability of firms to know if it has set its fees at an appropriate level”. To help analyse and validate the findings of this exercise, and work towards establishing fixed fees and hourly rates, where appropriate, MoJ also propose to set up a working group including expert witness representative bodies and other interested stakeholders.

The LSC has issued a request for participants in a file review of  experts costs in legal aid work to ensure that the information collected is as comprehensive and representative as possible. The Commission has asked that practitioners send any recently closed legal aid case files that include invoices for expenditure on one or multiple expert witnesses, for inclusion in the review. They need to receive a representative sample across Family (certificated); Clinical Negligence (certificated) and Crime, for a list of specified matter types. The exercise will not include an examination of the costs of instructing interpreters. Practitioners willing to contribute to the file review should contact the LSC’s Chester office as soon as possible. The data collection exercise will be taking place over 7 or 8 weeks from the beginning of May.

For the text of the letter of invitation go to:

http://www.justice.gov.uk/consultations/docs/legal-aid-expert-witness-fees-letter.pdf

For the full text of “Legal Aid: Funding Reforms Part Three: Experts’ Fees” see:

http://www.justice.gov.uk/consultations/docs/legal-aid-funding-experts-response.pdf

Party manifestos are really little more than wish lists. But the unprecedented Tory and Liberal coalition agreement, produced at breakneck speed, and to be followed in due course by a final and fully comprehensive agreement, is something else. It is little short of a Queen’s speech for a whole parliament. Section 10 of the agreement is about civil liberties. The preamble states: “The parties agree to implement a full programme of measures to reverse the substantial erosion of civil liberties under the Labour Government and roll back state intrusion.” There follow 12 specific pledges.

 Britain leads the world in the use of CCTV. As a result, surveillance has become an inescapable part of life. Britain has a larger DNA base and more police powers and email snooping than any comparable liberal democracy. The agreement pledges further regulation of CCTV, the ending of storage of internet and email records without good reason and the adoption of the protections of the Scottish model for the DNA database. The presumption of innocence and the principle that every defendant has the right to be tried by a jury were weakened by the Domestic Violence, Crime and Victims Act 2004 and the right to silence was further eroded by the Counter-Terrorism Act 2008. Under the same Act an individual and his lawyers may be barred from court proceedings. Freedom to communicate in private has been effectively extinguished by the Regulation of Investigatory Powers Act 2000. The rights to freedom of assembly and demonstration were eroded by the Anti-Social Behaviour Act 2003 and the Serious Organised Crime and Police Act 2005. The coalition agreement promises the protection of historic freedoms through the defence of trial by jury and the restoration of rights to non-violent protest.

In June last year, the law lords dealt a major blow to the controversial use of control orders on terror suspects, saying that reliance on secret evidence denies them a fair trial. The then Liberal Democrat home affairs spokesman, Chris Huhne, and Chris Grayling, the then shadow home secretary, went on record to welcome the law lords’ decision and to demand an end to “cruel and counter-productive punishments without trial”. Under section 44 Terrorism Act 2000 police can stop and search anyone in a designated area without suspicion that an offence has occurred. Last year a total of 117,278 people were stopped and searched. The coalition agreement promises safeguards against the misuse of anti-terrorism legislation.

Kenneth Clarke, the new Justice secretary, and his team, including Lord McNally, Lib Dem leader in the Lords, will immediately commence work on the promised ‘Freedom or Great Repeal Bill.’ Other major provisions include the scrapping of the ID card scheme, the National Identity register, the next generation of biometric passports and the Contact Point Database; the outlawing of finger-printing of children at school without parental permission; and the extension of the scope of the Freedom of Information Act to provide greater transparency. There will be a review of libel laws to protect freedom of speech and a new mechanism to prevent the proliferation of unnecessary new criminal offences.

The full text of the Conservative Liberal Democrat coalition Agreement can be found at:-

http://www.conservatives.com/News/News_stories/2010/05/Coalition_Agreement_published.aspx

“The importance of civil trials being fair, the procedures of the court being simple, and the rules of court being clear are all of cardinal importance. It would, in our view, be wrong for judges to introduce into ordinary civil trials a procedure which…cuts across absolutely fundamental principles (the right to a fair trial and the right to know the reasons for the outcome), initially hard fought for and now well established for over three centuries”. So said the court of appeal in their concluding remarks when they dismissed an attempt by MI5 and MI6 to suppress evidence of complicity in torture in respect of British residents held at Guantanamo Bay.

Binyam Mohamed and five former prisoners are claiming damages against the Government for alleged complicity in torture and extraordinary rendition. The Government and security services wanted to use confidential information in their defence at the High Court, which in effect would have meant the case being held in secret. They filed an “Open Defence”, in which, while admitting that each of the claimants was detained and transferred, the defendants put in issue any mistreatment which the claimants allege, and, in any event, denied any liability in respect of any of the claimants’ detention or alleged mistreatment. “The issue on this appeal is whether Silber J was right to conclude, as the defendants contend, that it is open to a court in England and Wales, in the absence of statutory authority, to order a closed material procedure for part (or, conceivably, even the whole) of the trial of a civil claim for damages in tort and breach of statutory duty”.

The men’s lawyers argued that use of the “closed material” procedure, normally confined to criminal cases, would undermine the basic concepts of a fair and open trial. The court of appeal agreed with them, stating: “We have concluded that we should allow this appeal, and that we should say firmly and unambiguously that it is not open to a court in England and Wales, in the absence of statutory power to do so or (arguably) agreement between the parties that the action should proceed on such a basis, to order a closed material procedure in relation to the trial of an ordinary civil claim, such as a claim for damages for tort or breach of statutory duty”. They gave as their primary reason for their conclusion that, by acceding to the defendants’ argument, the court, while purportedly developing the common law, would in fact be undermining one of its most fundamental principles. Under common law a party to litigation should know the reasons why he won or lost, and trials should be conducted, and judgments should be given, in public. “In our view, the principle that a litigant should be able to see and hear all the evidence which is seen and heard by a court determining his case is so fundamental, so embedded in the common law, that, in the absence of parliamentary authority, no judge should override it, at any rate in relation to an ordinary civil claim”.

The judges gave the attorney general, MI5 and MI6 28 days to appeal to the supreme court. It will fall to the new government to decide whether or not to appeal, but, according to the ‘Guardian’, the former detainees are now likely to be offered compensation of millions of pounds in out-of-court settlements, that being preferable to having embarrassing evidence of the security and intelligence agencies’ complicity in abuse being exposed.

The full text of the judgement by the Master of the Rolls, Lord Justice Maurice Kay and Lord Justice Sullivan in Neutral Citation Number: [2010] EWCA Civ 482 can be found at:

http://www.bailii.org/ew/cases/EWCA/Civ/2010/482.html

Party manifestos are probably the most unread of documents. The major upheaval in political campaigning brought about by the three TV debates between the major party leaders could even render them redundant for future elections. In the meantime, it is not without interest to compare the three main manifestos for what they have to say about crime and justice.

Labour express a determination to continue to bear down on crime, building on the 3,600 Neighbourhood Policing Teams now in every area of England and Wales. They claim 26,000 more prison places since 1997, plan to provide a total of 96,000 places by 2014, while at the same time “taking steps to address unnecessary increases in the prison population”. Tories claim that prisons are chronically overcrowded, reoffending rates remain very high – 100,000 persistent offenders responsible for more than half of all crime – and 80,000 prisoners have been let out early from prison. They pledge that early release will not be reintroduced and they will redevelop the prison estate and increase prison capacity. On policing, their aim is to restore responsibility and discretion to the police, getting them out of police stations and onto the street fighting crime, and giving people the power to elect an individual who will set the policing priorities for their community. Liberal Democrats would pay for 3,000 more police on the beat, reduce time-wasting bureaucracy at police stations with better technology that can be deployed on the streets and give local people a real say over their police force through the direct election of police authorities. They would always base drugs policy on independent scientific advice, including making the Advisory Council on the Misuse of Drugs completely independent of government. For Labour, “on drugs, our message is clear – we will not tolerate illegal drug use.”

On Human Rights legislation, Labour detail their introduction of the Human Rights Act in 1998, the establishment of  the Equality and Human Rights Commission in 2007 and, in 2009, the introduction into Parliament of the new Equality Bill. Lib Dems refer to the importance of the Universal Declaration of Human Rights which set out the worth of every human being and pledged governments to uphold that worth in future. Hence their support for the Racial and Religious Hatred Act 2006 and support for the passage of the Equality Bill. The Tories take a different line and, to protect and strengthen civil liberties, pledge to replace the Human Rights Act with a UK Bill of Rights and “roll back Labour’s surveillance state, curtail powers of entry for state officials, and introduce new protections over the use of personal data.”

In the dying days of the last Parliament Jack Straw announced reforms to the libel laws (see blog “Reform of libel laws”, posted on 31 March). The proposals were voted down in the hasty final sessions of that Parliament. Despite that, or perhaps because if it, the party manifesto makes no mention of reform. The Tories promise to conduct reviews of the libel laws as well as family law. Lib Dems are the most specific, pledging definite changes to the libel laws, including Reynolds public interest defences. Legal aid does not get a mention in any of the three manifestos, beyond a promise from the Tories to conduct a review.

 If you want more, try any or all of the following:

http://www.labour.org.uk/policies

http://www.conservatives.com/Policy/Manifesto

http://network.libdems.org.uk/manifesto2010