My Lords, I will correct the noble and learned Lord, Lord Hope, on only one point. I think that at one point he referred to me as noble and learned. Nothing could be further from the truth—I think, in fact, I am the first non-lawyer to rise to his feet in this debate. But we are none the worse for that, because this is about getting it right. I am very pleased that the way in which the debate unfolded showed what a challenge the Government are trying to meet. I have one little chide for the noble and learned Lord, Lord Cullen: he talked about the Government’s “ostensible” reasons, which implies that there are some less worthy reasons behind the legislation. Again, as the debate unfolded, it became clearer that we are trying to deal with some genuine problems. I believe that this debate will stand very good reading. We are all going off on recess and so will have the opportunity to study very carefully some very detailed speeches. The best advice that the noble Lord, Lord Beecham, gave was that we should all listen carefully to the arguments. That is certainly what I intend to do.
We are going to some fundamental questions. The noble and learned Lord, Lord Cullen, questioned whether Parliament has the right to override a carefully calibrated judgment of our Supreme Court. As I say, I am not a lawyer but I am, if I have any other description, a parliamentarian and have always thought that Parliament has that right, however well calibrated the judgment might be. The noble Baroness, Lady Kennedy, was very keen to see it as an affront to that fundamental principle of the presumption of innocence and, indeed, as an affront to our common law. The noble Lord, Lord Pannick, warned us that it was a breach of the European convention. Then, almost like the 7th Cavalry, the noble and learned Lord, Lord Brown, came over the hill with what sounded like, even from my layman’s position, a magisterial dissection of the arguments. I hope and advise that all participants in the debate, and wider readers, read what the noble and learned Lord, Lord Brown, had to say. He pointed out clearly that compensation was not available in all circumstances and that only a limited number would qualify. I will not try to repeat his arguments, as I want to study them carefully.
5.30 pm
The noble Baroness, Lady Hamwee, was concerned that the emphasis on the new fact was a challenge to the principle of the presumption of innocence. The noble Lord, Lord Faulks, said that that was one of the things that had worried him, but that he had been persuaded by the arguments that it was not. Again, I will not try to analyse and dissect this, but I think that those on all sides who are interested in getting this right would do well to study the intervention of the noble and learned Lord, Lord Hope. He acknowledged
that there is confusion, that it is important to get the right standard of proof and that the Government were probably right to try to offer the certainty of statute but, in a carefully balanced judgment, he found that the effort of the noble Lord, Lord Beecham, was too loose and that the Government’s effort would not meet the non-disclosure test, as he illustrated by reference to the tragic case of Sally Clark.
This is a debate worthy of this House and it is our responsibility to try to get this right. There is no sleight of hand or hidden agenda; this is an attempt to get clarity into the law without sacrificing the fundamental principles that have been alluded to. I will put on record the Government’s explanation of this clause as it now stands. I hope that the House will listen to it and test it against the interventions that have been made, as it is obvious that we will be returning to this in some form on Report.
Clause 151 provides, for the first time, a statutory definition of what constitutes a “miscarriage of justice” for the purpose of determining eligibility for compensation under Section 133 of the Criminal Justice Act 1988. This definition will mean that compensation is paid only where the new fact that led to the quashing of the applicant’s conviction shows beyond reasonable doubt that they were innocent of the crime of which they were convicted.
At Second Reading, several noble Lords spoke on this issue. We heard concerns about the relationship of this provision to the presumption of innocence, which have been repeated today. The Government do not believe that the provision conflicts with, or in any way undermines, the presumption of innocence. The presumption of innocence is a fundamental constitutional right, enshrined in the European Convention on Human Rights, and one that we fully support. Once a person’s conviction has been quashed on the basis that it was unsafe, he or she is once more presumed innocent. That is only right. However, as the European Court of Human Rights recognised in the Allen judgment, and in the subsequent judgment of KF, the fact that someone is once more presumed innocent does not automatically mean that they suffered a miscarriage of justice. In the Government’s view, a miscarriage of justice will have taken place only when someone should not have been convicted—not just because something went wrong with the trial process or with the investigation, either of which could render a conviction unsafe, but because there was a fact, unknown at the time of their conviction, that clearly demonstrates that they did not commit the crime.
We agree that people should not have to prove their innocence in order to qualify for compensation. We also agree that to require this would be equivalent to reversing the burden of proof. That is why we are not requiring it. We do not, and do not plan to, require applicants for compensation to prove anything. We do not wish them to provide us with new evidence relating to their case. We look only at the new fact that led the Court of Appeal to quash their conviction and at the impact of that new fact. If the new fact shows that they were innocent—for example, that they were somewhere else when the offence was committed—then they have been the victim of a miscarriage of justice and should, and will, be compensated.
In our view, Article 14(6) of the International Covenant on Civil and Political Rights, which we have implemented through Section 133 of the Criminal Justice Act 1988, obliges us to pay compensation for a “miscarriage of justice” only in these circumstances. We do not believe that it is necessary to pay compensation more broadly than this. Compensating everyone whose conviction has been quashed would be tantamount to saying that everyone who is acquitted at trial has suffered a miscarriage of justice. That is clearly not the case.
For many years the courts have regularly tussled with how a miscarriage of justice should be defined. Before 2011, it was defined as a case where the person whose conviction was overturned was shown to have been innocent. As the then Lord Chief Justice, the noble and learned Lord, Lord Judge, put it in his dissenting judgment in the Supreme Court case of Adams,
“the operation of the compensation scheme under section 133 is confined to miscarriages of justice in which the defendant was convicted of an offence of which he was truly innocent. In my judgment nothing less will do, and no alternative or half-way house or compromise solution consistent with this clear statutory provision is available”.
The Government agree with him.
The noble Lord, Lord Pannick, referred to the recent letter from the Constitution Committee to my noble friend Lord Taylor. In that letter, the Constitution Committee questioned whether it was appropriate for Parliament to use its legislative supremacy to overrule a decision of the Supreme Court. I hope that noble Lords will have seen the response from my noble friend to the noble Baroness, Lady Jay. In short, the Government argue that it is the proper role of the courts to interpret the law made by Parliament. Where this law is not clear, or leaves gaps, as Section 133 of the Criminal Justice Act 1988 does at the moment, it is entirely appropriate for the courts to fill those gaps with their interpretation. However, where the courts cannot reach a settled view on what a statute is meant to achieve, it is properly for Parliament to address those gaps or ambiguities. That is what Clause 151 will achieve.
I cannot say the same for the amendment tabled by the noble Lord, Lord Beecham, which seeks to maintain the current definition of a “miscarriage of justice”. There are two problems with this definition, which derives from the Divisional Court’s recent judgment in Ali and others, where the court sought to clarify the Supreme Court’s definition in its judgment in Adams. First, unlike Clause 151, the Ali definition requires the applicant to demonstrate that they have suffered a miscarriage of justice; secondly, it requires an assessment of what a jury,
“properly directed as to the law”,
would decide. This is clearly ambiguous and arguable in every case. We do not believe that this is satisfactory. It is essential that applicants for compensation have clarity and are able to understand the test that applies. That is not the case now—as is demonstrated by the many unsuccessful applications for judicial review when compensation is refused—and it would not be the case if we kept the current test and gave it a statutory basis.
In contrast to the noble Lord, Lord Beecham, the noble Baroness, Lady Kennedy of The Shaws, other noble Lords and the Joint Committee on Human Rights have argued for the removal of Clause 151 from the Bill. The effect of this would be to leave the definition of a miscarriage of justice to the courts. The lack of statutory definition has left applicants struggling with case law, which, as well as often appearing ambiguous and confusing, changes unpredictably, automatically moving the goalposts for existing applicants.
The Government believe that creating a clear and comprehensible statutory definition will make it easier for potential applicants to predict their chance of success and to understand the Secretary of State’s decision on their case. This should end the succession of unmeritorious attempts at judicial review, which create uncertainty for applicants and incur significant costs for them and the taxpayer. The purpose of Clause 151 is to make the definition of a miscarriage of justice more consistent, clearer and easier for the public and potential applicants to understand. We believe that it is fairer than using an obscure and confusing definition or continuing to work with a definition subject to unpredictable change. Finally, I remind the House that the tests that we are now enshrining in legislation operated successfully between 2008 and 2011.
Clearly, as I said, we are going to return to this matter. What I have just stated is the considered government reasoning for bringing forward Clause 151 with all the legal advice at the Government’s disposal, but I am also extremely grateful to noble Lords—as I often say about the team that I have in the Liberal Democrats who occasionally advise me on these things, if we had to pay them, we could not afford them. We have had a range of thought-provoking interventions, which I will take back. I am encouraged that those interventions do not, for me, dismantle the case for Clause 151. In fact, I think that a balance of reading or a balance of listening gives me more confidence. I think, however, it would do us all well, as the noble Lord, Lord Beecham, advised at the beginning, to listen carefully. I recommend that we read carefully, and we will return to this matter on Report.