My Lords, I must first congratulate the noble Lord, Lord Taylor, who managed to escape the onerous task of replying or, indeed, of advocating the Government’s case. The noble Lord, Lord Faulks—the Minister—has, as it were, picked up a dock brief. He comes before the House as a poor man’s lawyer—or, I should say more relevantly, a poor Lord Chancellor’s lawyer.
It is instructive to consider how the debate on the Government’s proposal played out in the House of Commons. Deep concern and opposition to the original Clause 151 was voiced on all sides of this House in 19 speeches. Speakers included former Law Lords, lawyers of varying experience in this field and non-lawyers. Members may recall in particular the powerful speeches of the noble Lord, Lord Cormack, the noble and learned Lord, Lord Hope, who has addressed us tonight, and my noble friend Lord Brennan, who has also spoken to us, with his long history of involvement with this issue. These and other noble Lords voiced profound misgivings over the Bill’s requirement for those claiming compensation for a miscarriage of justice effectively to have to prove their innocence. I do not need to rehearse the arguments advanced at Second Reading, in Committee, on Report and again today. Only four speeches, other than those from the relevant Minister, supported the Government. Three of these, no less, were made by the eminent former Law Lord, the noble and learned Lord, Lord Brown of Eaton-under-Heywood, from whom we have heard again tonight. The other was made by the noble Lord, Lord Faulks, before his accession to ministerial office. One Member expressed doubts in a speech at Second Reading and did not vote on Report.
The overwhelming body of opinion in debate in this House—right through the progress of the Bill—was, therefore, opposed to a proposal that was at odds with our historic attachment to the presumption of innocence unless and until guilt is proved beyond reasonable doubt. It was a proposal that, as I have mentioned in previous debates, would save all of £100,000 a year, given the paucity of successful claims—some two a year, as the Government’s own impact assessment made clear.
The Government have consistently claimed that the law was uncertain: it was not, though the Supreme Court invited the Government and Parliament—having reached a conclusion by a narrow majority in the Adams case—to consider the matter. However, the decision in the Adams case was clear, and the noble Lord, Lord Faulks, was kind enough to advise me yesterday that it has effectively been followed and upheld by the Court of Appeal. Therefore, it was with some astonishment that I read the terms of the government amendment and the debate on it in the House of Commons.
The Minister, Damian Green, claimed:
“The Government have taken account of all the points that have been made and all the concerns that have been expressed and our position has changed as a result of the very good debates that have taken place in Committee as well as in the House of Lords”.—[Official Report, Commons, 4/2/2014; col. 163.]
The change, of course, is to drop the requirement for the claimant to establish that he was innocent of the offence and substitute the requirement to show that “he did not commit” the offence. I do not pretend to understand by what process of jurisprudential alchemy the base metal of proving innocence becomes converted to the gold of establishing that a claimant did not commit the offence. It is a distinction without a difference—an attempt to preserve the Government’s version of legislative maidenly modesty .
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Ministerial sleight of hand, however, did not stop there. The Minister sought to pray in aid the noble and learned Lord, Lord Phillips, who, as the noble Lord, Lord Pannick, has reminded us tonight, actually voted for his amendment. If Mr Green were to be charged with attempting to gain votes by false pretences, I would have to advise him to plead guilty; I think that even the Minister would have to advise him to plead guilty. I cannot see how he could prove his innocence or establish that he did not commit the offence that I have just invented. This, however, is a serious matter, both substantively and from the perspective of how the Government conduct their legislative business. The cases are few, but the principle is important.
There is another factor: last week, to her great credit, the Home Secretary established an inquiry into the use of undercover agents by the police. Who knows at this time what doubts might be cast on convictions procured by such means? What miscarriages of justice might now come to light? Now, I submit, is emphatically not the time to dilute the careful, moderate position established by the Supreme Court in the Adams case. On the contrary, it is time to affirm it and I hope the House will do so.