Crime and Courts Bill [HL]

Baroness Butler-Sloss Excerpts

Tuesday 18th December 2012 Lords Chamber

[Lord Pannick]

My Lords, I understand that Amendment 5, to which I wish I speak, arises in particular out of concern that the House may unintentionally have been misled on Report. I support the noble Lord, Lord Avebury, on Amendment 5. I fully understand the argument deployed by the Government on Report—it would be absurd to allow a person regarded as dangerous back into the country in order to pursue an appeal. My concern is that legal practitioners understand the policy of the Home Office to be to wait until a person with leave to remain travels abroad before then making the decision to curtail their leave, with the express intention of depriving them of the right of appeal from within the United Kingdom. That seems to be difficult to reconcile with the rule of law. I ask the Minister in his response to Amendment 5 at least to give the House an assurance that decisions to curtail leave to remain will not be deliberately delayed until a person travels abroad, with the intention of depriving them of a right of appeal from within this country.

[Baroness Butler-Sloss]

My Lords, I declare an interest as co-chair of the human trafficking parliamentary group. If there are reasonable grounds for someone being understood to be a victim of trafficking, it would be extraordinarily unjust and contrary both to the Council of Europe’s convention and the directive of the European Union, to both of which the Government are signatories, to treat that victim in the way that it is possible that he or she would be treated if the amendment were not passed.

[The Earl of Listowel]

My Lords, I would be most grateful if the Minister could clarify the position, raised by the noble Lord, Lord Avebury, regarding this sudden moment of transition at the age of 18. I would appreciate him reassuring the House that the Government do not consider there to be a single cut-off immediately after the child moves past the age of 18 but that there is humane consideration of a young person’s need for a transition into adulthood. With young people who have been traumatised—for instance, those who have been trafficked—one sees that their development may well be delayed and one has to allow for that. In the Children (Leaving Care) Act, we see special consideration being given to their needs, because of their early trauma, up to the age of 21 and, in some cases, until the age of 25. We need to pay attention to the developmental needs of children and to recognise that some children, particularly those who have been traumatised in their early life, need more care and attention as they make that transition into adulthood.

--- Later in debate ---

[Lord Goodhart]

My Lords, I am going to take a rather unusual position on this and say that I am afraid I do not agree with Amendment 3. I was considerably involved in the drafting of the Constitutional Reform Act 2005 and I had no objection at that time to Sections 48 and 49, which are now objected to in this amendment. The reason why I do not welcome this amendment is that the chief executive is an administrator, not a judge. That being so, I see no serious reason why Lord Chancellors should not continue to be involved in the proceedings of Sections 48 and 49 as they now are. The administration of an issue which involves both those in charge of costs and those in charge of the law needs to recognise the real issues here because of the way in which the funds get to the Supreme Court.

I am in general a strong supporter of the two former judges who have put their names to this amendment and of the noble Lord, Lord Pannick, but in this case I fail to be able to agree with them as they would clearly like.

[Baroness Butler-Sloss]

My Lords, although this may seem to be a technical point to some Members of the House, it is actually a matter of very considerable importance. It is wrong in law and it is constitutionally inappropriate. I am very surprised that the noble Lord, Lord Goodhart, who is an excellent lawyer, has not picked up either of those points. I have to say that the Minister, the noble Lord, Lord Ahmad, got it wrong, and it is important to get it right. It is important to preserve the separation of the judiciary, and I speak as someone who is not a member of the Supreme Court and was not a member of the Judicial Committee. However, the separation of the judiciary from the Executive is crucial at every level, so to have the chief executive of the Supreme Court answerable to the Lord Chancellor and not to the president of the Supreme Court is, to say the least, an anomaly. Also, rather more seriously, it is incorrect. This needs to be put right, otherwise there really will be a perception that the Lord Chancellor not only controls the finances but controls the person who controls the financing of the Supreme Court. I strongly support this amendment.

[Lord Goldsmith]

My Lords, I am the first Member to speak to this amendment who was a member of the Government at the time that the Constitutional Reform Act 2005 was passed. I support the amendment, as I did on Report, at which point I gave the House an anecdote to illustrate why I think that it is right. It is because of the risk of the perception of a lack of independence, about which the noble and learned Lord, Lord Phillips of Worth Matravers, and others have spoken. I do not want to repeat what I said at the previous stage but, in the light of what may be said by the noble Lord, Lord McNally, it is right to remind ourselves how the Constitutional Reform Act came about.

The Act did not come about—how can I put this politely?—in the most orderly way, and the consequence was that we rather scrambled to get to the conclusions. I am happy to see my noble and learned friend Lord Irvine of Lairg in his place and I should say that a number of noble Lords were involved in the process. However, it does not surprise me that, despite those valiant efforts, in the end we did not get the legislation completely right, and this is a provision which we did not get completely right. If we had known about the examples to which the noble and learned Lord, Lord Phillips of Worth Matravers, has at least referred, if not identified, and if the risk could have been seen that the chief executive somehow being responsible to the Lord Chancellor might lead to the view that the Supreme Court was in some way connected to the Government so that the Government were able to influence its decisions, we would not have included this provision. Therefore, despite the time spent on the Bill, in the end much of it was done through discussions between my noble and learned friend Lord Falconer of Thoroton and the then Lord Chief Justice, the noble and learned Lord, Lord Woolf, although a lot also happened on the Floor of the House. If the only thing that was not quite right was this particular provision, it was still a considerable triumph, but I hope that the noble Lord, Lord McNally, those behind him and of course ultimately the Lord Chancellor will see that this is a small but hugely important change that will do no harm at all to any of the issues of administration.

The Lord Chancellor is not responsible for the finances of the Supreme Court, a point that was made clear by my noble and learned friend Lord Falconer in, I think, the very passage to which the noble and learned Lord, Lord Phillips of Worth Matravers, referred. What would happen is that a bid would be put forward that could not be altered and it would then come directly from the Consolidated Fund. I do not think that there is anything to be accountable for. For those reasons, I strongly support the amendment.