Judicial Review and Courts Bill

Debate between Baroness Chakrabarti and Lord Thomas of Cwmgiedd

Committee stage
Monday 21st February 2022 Lords Chamber

[Baroness Chakrabarti (Lab)]

My Lords, I congratulate the noble Lord, Lord Anderson of Ipswich, on his Amendment 13. He rightly suspected that my Amendment 14 is a little more in the way of a probing amendment. I tabled it because of the concern I expressed earlier about the people not in the room when, by definition, a judicial review is brought by one party against a government department.

My Amendment 14 would be far less preferable to his Amendment 13 if we could clear up the problem with proposed subsection 29A(1)(b). As I said earlier, there is the question of whether that starts engaging the court with a more legislative function in deciding exactly who is and is not to benefit from the wider class of citizens not in the room.

So, we are back to the Minister’s saying that this is just about putting some extra discretionary tools in the judicial toolbox, to be used where appropriate. If that is the case and we could clear up the issue with paragraph (b), I would have no problem with allowing this extra tool, so that, in some cases, the quashing could not take effect until a future date, and the department could sort itself out and effect new regulations or, if necessary, even come to Parliament with emergency legislation. As a former government lawyer, I would have no problem with that possibility—but why all the rest of it?

On the one hand, the Minister talks about trusting the courts; on the other hand, we are all to be tied in knots with our various interpretations of all the various differently tilted tests that follow. That is probably the difference between me and the noble and learned Lord, Lord Brown of Eaton-under-Heywood. I say that because I have genuinely changed my mind about various aspects of this during Committee. If it is just a tool in the toolbox, make it an open-textured discretion that allows the suspended quashing order, and leave the rest to the court.

I shall make two further points. The noble Lord, Lord Anderson, made an essential point that is worth repeating: central government is a party to most judicial reviews and certainly the ones that are going to cause concern to the Government. So the Government can relax a little at this stage, knowing that any crucial arguments about the effect of particular discretionary remedies on wider public administration will be put by government lawyers to the court. Finally, the noble Lord, Lord Pannick, talked about the risk of litigation with an overly complex provision. That has to be taken seriously. I hope it will not be said in response that that amounts to a threat. That has been said to me in the past when I have suggested that a convoluted provision will lead to litigation. It is not a threat; it is based on experience of what happens when discretion is tied in knots in that way. Inevitably, that leads to more litigation, not less.

[Lord Thomas of Cwmgiedd (CB)]

My Lords, I entirely support the amendments put forward, for the reasons that have been given. I do not want to add to them. It seems odd to give judges discretion and say that we trust them, then immediately circumscribe what they can do.

That leads to my concern about new Section 29A(10). When listening to the Minister earlier, I asked myself why new Section 29A(8) was there because all the points are perfectly obvious. I wonder whether we are looking at a new technique here being laid down for future use. Do you list perfectly obvious things in new subsection (8) to bring in the killer in new subsection (10)? I hope the Minister can assure us that we are not going to see in any future legislation dealing with judicial review—who knows whether there will be any—the codification of perfectly obvious principles as a means of bringing in by the back door what one sees here in new subsection (10).

Police, Crime, Sentencing and Courts Bill

Debate between Baroness Chakrabarti and Lord Thomas of Cwmgiedd

Lords Hansard - part one & Committee stage
Wednesday 17th November 2021 Lords Chamber

[Lord Thomas of Cwmgiedd (CB)]

My Lords, I also rise to support Amendment 220. When I was chairman of the Commission on Justice in Wales, we looked at this issue and had extensive evidence, including from the Children’s Commissioner for Wales. Without hesitation, we recommended that, were it free to do so, Wales should raise the age of criminal responsibility to 12, consistent with United Nations obligations it has untaken.

I agree completely with what has been said about the profound changes in the understanding of mental capacity that have taken place over the last 10 years in particular. I urge the Government not to delay any further a change to make our country no longer a laggard on this issue but one that is at least catching up. There are problems, such as knife crime, but the age of criminal responsibility is not the way to deal with them.

[Baroness Chakrabarti (Lab)]

My Lords, it is very good to see the Committee refreshed and to have the opportunity to meet earlier in the day, so I thank the powers-that-be for making this possible.

Overseas Operations (Service Personnel and Veterans) Bill

Debate between Baroness Chakrabarti and Lord Thomas of Cwmgiedd

Report stage
Tuesday 13th April 2021 Lords Chamber

[Baroness Chakrabarti (Lab) [V]]

My Lords, I too thank the noble and learned Lord, Lord Hope of Craighead, for his persistence with this, and I especially thank the Minister, for her gracious concession.

It was just a few weeks ago that the former Prime Minister Mrs May warned the Government, in another place, of what she described as the

“fine line between being popular and populist”.—[Official Report, Commons, 15/3/21; col. 78.]

I wonder whether that line is quite so fine. To be more explicit than the noble and learned Lord, dog whistles are bad enough in politics, but they are a lot worse in legislation and worse still when they are by way of legislative amendment to the Human Rights Act—our modern Bill of Rights. To turn the power to consider derogation into an express statutory duty, but not to import the appropriate legal test for such a derogation, was a very dangerous dog whistle indeed. I am very glad that it has been withdrawn. Like the noble Lord, Lord Thomas of Gresford, I hope that the Government continue in this positive vein and consider other fundamental concerns about the Bill in general.

I do not want to be churlish. This is an important concession from the Government; to treat the Human Rights Act in this way, and to set a precedent for creating duties to derogate and put them in the Act, would have been very dangerous and would have sent a bad signal about the Government’s commitment to human rights at home and internationally.

[Lord Thomas of Cwmgiedd (CB) [V]]

I thank the Minister for her pragmatic approach to this. I entirely agree with the analysis of the noble and learned Lord, Lord Hope of Craighead, that the real issue was Article 5 and the right and ability to detain on the battlefield. There was a real problem there and, with respect to the Government, they were right to consider it. The unfortunate thing is that they chose the wrong route. I do not think that they considered carefully enough the decisions of the Supreme Court in Al-Waheed and Serdar Mohammed. But, if a problem remains, I am sure that it will be looked at sympathetically because, for the protection of our troops, it is necessary to take a realistic view of the ability to detain on the battlefield or in close proximity to it. Again, I thank the noble and learned Lord, Lord Hope of Craighead, for his clear analysis of this, and the Minister, for her wise decision.