Data Protection Bill [HL]

Debate between Baroness Kennedy of Shaws and Lord Faulks

Monday 14th May 2018 Lords Chamber

[Baroness Kennedy of The Shaws (Lab)]

My Lords, I know that my noble friend—

[Lord Faulks (Con)]

My Lords, I do not think the noble Baroness was here for the debate.

[Baroness Kennedy of The Shaws]

My Lords, I was here during the previous amendment; of course I was. I was here in relation to the whole matter concerning this amendment from the noble Baroness, Lady Hollins. I heard the references from the Front Bench to the particular part of the argument that has just been conducted, and I was here to hear the noble and learned Lord, Lord Keen, speak about what was happening with this amendment and what had happened in the Commons. I shall carry on because I do not accept the comment made by the noble Lord.

I support the position of the noble Baroness, Lady Hollins, for a number of reasons. One is that the question of ethics, and the ethics of the media, has really not been dealt with adequately so far. The other matters that really concern me are those concerning the police. So far, I am afraid, the police have got off rather lightly in the course of investigations into what took place regarding media misbehaviour. Unlike other lawyers—I know my noble friend Lord Prescott has a poor view of lawyers—I do not act for newspapers and have not done, nor do I have a column in any newspaper. However, I have acted for victims who have gone through court processes, I have acted for defendants who are on trial and I have acted in inquests, and I have to say that the story with regard to police behaviour is not good. Too often—I know this from direct experience—there have been leaks and tip-offs to the media by the police when people have been invited into police stations to be interviewed. Perhaps they are suspected or they are going to assist in an inquiry, but they end up being met at the police station doors by photographers and journalists. They are exposed to speculative pieces about why they were being seen by the police, and often they are chased and stalked by the paparazzi as a result.

You have to ask yourself why that happens. I am afraid that journalists covering criminal courts over the years have told me that often they would basically have police officers in their back pockets, and that meant the pocket that had their wallet in it. What was offered to police were bungs, pay-offs and “drinks”, as they were called euphemistically, for providing those tip-offs. They happen still, and they have happened subsequent to the Leveson inquiry: people who have been asked to come to police stations to be interviewed with regard to sexual matters but have not been charged—and no charges have, in the end, been forthcoming—have found themselves over the front pages of newspapers. At this very moment, Sir Cliff Richard is involved in litigation regarding that kind of collusion and coalition between the media and the police. I am concerned that the police still have not been looked at adequately for the role they have played in some of this particularly iniquitous conduct.

The second part of Leveson seems of real importance to the well-being of our nation. If there is corruption in our police—if they are able to do this and to supplement their incomes by doing it, and there is money available in the media to do it—we know that something is seriously wrong. I hope the House has that in mind. Sometimes the purpose of a public inquiry is to air such matters and make clear the seriousness with which such corruption and misbehaviour is viewed.

European Union (Withdrawal) Bill

Debate between Baroness Kennedy of Shaws and Lord Faulks

Committee: 2nd sitting (Hansard - continued): House of Lords
Monday 26th February 2018 Lords Chamber

[Lord Faulks]

My Lords, I am sure that the Committee will be greatly moved by what the noble Lord, Lord Cashman, has said. Everyone is concerned to protect human rights but we must not fall into the trap of saying rights are good and therefore, more rights are better.

The role of the Charter of Fundamental Rights in our law has been an uncertain one. The noble and learned Lord, Lord Goldsmith, has had a great deal to do with it and knows a great deal about its creation; he played a part in its drafting. He got his retaliation in first at Second Reading and today, knowing that it was going to be pointed out to him that he was not initially an enthusiast for the charter because of the apparent disorder it might create in the rights architecture of our law. There is nothing wrong with changing your mind. It is quite a fashionable course for the party opposite to take at the moment. My difficulty is not with the change of mind but the fact that I agreed with his original stance, which was that adding the charter, which was designed for an entirely different purpose, ran the risk of undermining the clarity and cogency of our law.

I have some experience of the way rights are played in court. I was part of the Commission on a Bill of Rights, together with the noble Baroness, Lady Kennedy, who is in her place. I was also a Minister with responsibility for human rights. I have considerable experience over the past 20 years, following the incorporation of the European Convention on Human Rights by the Human Rights Act, of acting for public authorities which have been sued for alleged violations of those rights. Rights are very difficult to interpret, whether they come from a declaration, a charter or a convention. Inevitably they tend to be expressed in general terms and leave a great deal to individual judges to interpret and try to make practical sense of.

Most of the rights contained in the charter—obviously, some of them are inappropriate—are not controversial in what they seek to protect. What is far more controversial is how these rights should be interpreted. My right may be in conflict with your right. The protection of my right may have to be sacrificed or modified by the need to protect others’ rights or the powers that the state may inevitably have which affect or modify those rights. Of course we need to protect children, the disabled and the vulnerable in society, as a number of noble Lords have pointed out. Most of what we do in Parliament is concerned with the definition of circumstances in which individuals’ rights should be protected. A number of noble Lords have identified the right to dignity as being important since it is not reflected precisely in the European convention. We can all agree that it is important that citizens are treated with dignity but how does one translate that into anything meaningful in terms of the courts providing remedies?

The difficulty is that rights are now regarded as trumps and if we are to retain the charter, as seems to be the purport of the amendments in this group, we will have the rather strange situation of existing domestic law, whether it comes from the Human Rights Act or elsewhere, being supplemented by the charter, which will have a particular status. As the Government have made clear, the charter was never supposed to be a source of rights per se but a reflection of the rights that are generally protected by the European Court of Justice. It would be peculiar for our courts to continue to rely on the charter, which was designed to apply to EU institutions in interpreting the scope of EU law, after we have actually left the European Union.

The Advocate-General has occasionally made remarks about the charter. At its highest it has been described as “soft law”. If we need to protect or further protect rights, is that not a matter for Parliament or even judges interpreting the common law? Are we really so impotent as a Parliament that we have to rely on the relatively recent EU charter to provide such protection? Some of the amendments seek to turn soft law into hard law with application after we have left. This Bill is surely to provide clarity and coherence in the law after we have left the EU. Retaining the charter will do precisely the opposite.

I regret that I do not agree with various observations made at Second Reading that the Human Rights Act provides only for declarations of incompatibility. It does in fact provide damages for violations of the convention. I suspect the reason the charter has attracted such vigorous support is the rather egregious way it has been singled out for attention in the Bill. The reason it has been so singled out is the uncertainty of its application by the courts so far, and the Government’s desire to be absolutely clear that in the difficult task of interpreting the law that the judges will face, the charter can safely be ignored.

My amendment, which I come to in conclusion, is an attempt to provide some clarity as to what role, if any, the charter may have in the future. In so far as the charter is part of retained law—I appreciate that the definition of retained law is also the subject of debate—there seems no harm in it having some continued existence, in so far as it is necessary for the interpretation of that retained law; hence my amendment. What I find wholly unconvincing is the argument that it should somehow remain, as a non-native species, providing a free-standing source of rights—as in the Goldsmith amendment—or that it should be grafted on, subject to amendments to the Human Rights Act, as in the Wigley amendment. Who will benefit if the charter remains part of our domestic law after exit day? I fear it will not be those whom we rightly wish to protect; it will be the lawyers, and surely we do not want that.

[Baroness Kennedy of The Shaws]

My Lords—

[Baroness Kennedy of The Shaws]

I stood up before the noble Lord, Lord Faulks, sat down as I knew he was coming to an end. He mentioned, and I accept entirely, his position that the Government may have excluded the Charter of Fundamental Rights because of uncertainty. But for many people it is an indicator of something else: that Conservative Party manifestos over a number of years have promised that the Human Rights Act would be removed. On many occasions, we have heard leading Conservatives say that we should remove ourselves from the European Convention on Human Rights, too. The absence of the Charter of Fundamental Rights from the Bill suggests to many that this is part of a journey taking us out of any international arrangements dealing with the protection of human rights, and that that is the real purpose.

[Lord Faulks]

The Government’s position has been made quite clear: they have no intention of repealing the Human Rights Act. It is perfectly true that the previous Government said that they would consult on the question and bring in a British Bill of Rights, which would not mean departing from the European convention. Of course, I understand that there are those who are suspicious of this Government’s motives—I do not speak for the Government—but if a Government were hell-bent on getting rid of human rights, they would of course be able to get rid of the charter as well. I do not accept the sinister interpretation of the noble Baroness. The intention is simply to achieve clarity; that is what the Bill is about.

European Union (Notification of Withdrawal) Bill

Debate between Baroness Kennedy of Shaws and Lord Faulks

Report stage (Hansard - continued): House of Lords
Tuesday 7th March 2017 Lords Chamber

[Baroness Kennedy of The Shaws (Lab)]

My Lords, I think it is the occasion for the Labour Benches. I remind the House that the Supreme Court gave us the benefit of its wisdom on constitutional matters in the case of Gina Miller, which we have heard about. In that case, the Supreme Court’s principal conclusion was that primary legislation is required to authorise the UK’s withdrawal from the European Union. I make it clear that this Bill is a notification Bill; it is not an authorisation Bill. It does not authorise withdrawal from the European Union. What it does is to notify other European Union members that we are in a process of negotiation. The withdrawal must come back before this Parliament.

I also remind the House what the Supreme Court judges said. They said that the reason why this was a matter for Parliament—both the notification and, finally, withdrawal—was because any fundamental change to our laws that inevitably amends or abrogates our individual rights requires the approval of Parliament. That is one of the essential constitutional principles under which our system operates: that anything involving our rights—whether they are to trade with, to live in or to travel to the European Union—we have introduced into domestic law. Because that therefore involves the rights of citizens, Parliament is the place that has to make the decision and approve any changes to that law.

The concern that I raised in Committee late at night, when most people were no longer here, was that I had heard repeatedly from Ministers that if there was not a deal, or if Parliament decided that the deal was not good enough, we would walk away and that there was therefore authorisation from the people, having taken part in the referendum, to walk away. That flies in the face of what was said by the constitutional court of this country—the Supreme Court, which deals with constitutional issues—because walking away and embarking on an engagement in trade worldwide under the WTO rules also involves an amendment or abrogation of some of the rights that citizens in this country have. It has implications. That is why it is a constitutional matter and why this House has a particular role to play.

[Lord Faulks (Con)]

Perhaps I can remind the noble Baroness of the limits of what the Supreme Court decided. In paragraph 3, it said:

“It is also worth emphasising that this case has nothing to do with issues such as the wisdom of the decision to withdraw from the European Union, the terms of withdrawal, the timetable or arrangements for withdrawal, or the details of any future relationship with the European Union”.


There is a distinct limit to what it decided. Does the noble Baroness agree?

[Baroness Kennedy of The Shaws]

In reaching that decision, the Supreme Court laid out the principle that the reason why it was engaging with the case at all was not because it had a view on Brexit but because of the constitutional principle. The principle is very straightforward. It is that when it comes to our rights, Parliament makes those decisions. That is why when the process comes to the end and there is a deal on the table it has to be voted upon by Parliament but, if there is no deal, that too becomes an issue. It is not good enough for Ministers of Government to say that we just walk away as though that has no consequences. Walking away also has consequences for the rights of citizens in this country. That is why it is a matter for Parliament. That is why this proposed new clause is so important.

Criminal Justice and Courts Bill

Debate between Baroness Kennedy of Shaws and Lord Faulks

Monday 27th October 2014 Lords Chamber

[Baroness Kennedy of The Shaws (Lab)]

My Lords, I know that there is always a sigh in this House when a debate is dominated by lawyers. However, I remind the House that sometimes it is lawyers who know the pain that citizens in our country experience, because we represent them, and that this is about the actual lives on which judicial review has an impact. It is always about the person whose business is to be closed down from trading, based on a department’s or a local authority’s decision that they want to challenge, or the person whose mother is in a care home and suddenly finds that it is being moved or closed down, with no consultation as to the impact on her and her family. It may be about the effect on a disabled child of a decision about their schooling. Those things are about real people’s lives and that is why this is not just a constitutional debate of high flown words or complicated legality—it is about the real impact on the lives of ordinary people.

When your Lordships come to vote in our Lobbies, as I am sure you will be asked to do, I say to those of you who are not lawyers that this is really about people’s lives and about the law coming into play to protect citizens. That is why lawyers and organisations such as the Bar Council, the Law Society and Justice—cross-party and no-party organisations—know why the rule of law matters in our nation and our democracy. This is not, I say to the Minister’s noble friend Lord Tebbit, about judges somehow usurping the power of Parliament. This is about justice, fairness and the things that we hold dear, so I say to my colleagues in this House who are not lawyers that this is not a festival of lawyering. It is about ordinary people.

[The Minister of State, Ministry of Justice (Lord Faulks) (Con)]

My Lords, we now turn to Part 4 of the Bill, which has proved to be one of the more contentious areas at Second Reading, in Committee and today. The debate has ranged far and wide and it has been magnificent. We have discussed the constitution of the United States, the merits of the European Union, the Council of Europe, King Charles I, fracking, the Severn barrage and HS2, to name a few topics. I am sure that noble Lords will understand if I do not deal with all of them.

Similarly, there have been speeches of an omnibus nature, particularly by the noble Lord, Lord Beecham, and my noble friend Lord Marks, in the sense that they have covered matters beyond Clause 70. I will deal with those arguments when we come to the relevant groups. We are focusing on Clause 70 at this juncture. The Government have listened with great care to the arguments raised by noble and learned Lords and noble Lords during those debates. I assure my noble friend Lord Cormack that I have listened carefully again this afternoon to the speeches made by a large number of your Lordships. However, we do not resile from our central contentions, which I trust the House will allow me to set out briefly.

First, it is our contention that judicial review, when used properly, is an essential component of the rule of law. It allows individuals and businesses to invite the court to test the lawfulness of public bodies’ actions. Secondly, judicial review as it presently stands is not always perfect. On several occasions, the Government have set out some of the examples of delay and cost which can be caused, such as the challenge to the exhumation licence concerning the mortal remains of King Richard III which the noble Lord, Lord Beecham, described as “ludicrous”, despite his own view that York is the more appropriate resting place.

Thirdly, while we have taken some steps, working with the judiciary where appropriate, to rebalance the current approach, such as through the creation of the planning court, some further reform is needed. Noble Lords may be aware that the use of judicial review has increased more than threefold in recent years from around 4,200 in 2000 to around 15,600 in 2013.

The noble and learned Lord, Lord Woolf, was kind enough during our Committee debates to offer me a copy of De Smith’s Judicial Review, of which he is a distinguished editor. I have to say that he honoured his pledge most generously. I have been in receipt of De Smith and I have done my best to reacquaint myself with its contents. The preface to the seventh and most recent edition reads as follows:

“English administrative law is now one the most celebrated products of our common law and doubtless the fastest developing over the past half century”.

We accept that many judicial reviews will be well founded and brought in good faith, and that much of the growth has been driven by the number of immigration and asylum cases, but it remains a simple fact that a well timed judicial review can delay the implementation of crucial policies or projects for months or even years. Even when decisions are perfectly in line with due process, months can be spent preparing for and defending claims when that time would be better spent taking forward the reforms that the country needs.

The debates have been, perhaps predictably, dominated by those with long experience of the law and, of course, on the government Benches we welcome the expertise which has been brought to bear, even if we do not always welcome the contents of all the speeches. However, there is another side to judicial review—one which pertains to what happens, or does not happen, outside the courtroom as judicial reviews proceed. As they proceed, arguments are made and countered; witness statements are prepared and probed; and fine points of law are weighed and determined. Crucial projects with direct implications for jobs are delayed, perhaps lost.

For example, a judicial review was initiated by a competitor to the proposed development of a supermarket in Skelton, North Yorkshire. That challenge was described by the judge at the earliest possible opportunity as “a hopeless case”. Yet work was delayed for six months. Irrespective of the rights and wrongs of the case itself, is it right that a hopeless judicial review can be used to such effect? The risk of this happening was recognised by that great judge Lord Diplock who, when emphasising the importance of the permission stage in judicial review said:

“The requirement may also prevent administrative action being paralysed by a pending, but possibly spurious, legal challenge”.

I quote from Inland Revenue Commissioners v National Federation of Self-Employed and Small Businesses 1982 appeal case 617 at page 643.

It is important that we do not ignore the fact that such cases place a considerable burden on the public purse in terms of the time of judges, lawyers, Ministers and officials. Overall figures are not recorded, and are probably not recordable, but by way of illustration, I can report that the total legal costs of the Richard III case to the Ministry of Justice alone have been put at more than £90,000, none of which is recoverable. Consequently, we make no apology for having taken some sensible steps already, and none for making a few more small but important changes.

Outside your Lordships’ House the debate about these reforms has been rather long on hyperbole. Reference has been made during the debate today, and indeed in Committee, to left-wing causes. Of course, I entirely accept that it is irrelevant whether a cause is left-wing, right-wing or apolitical. What matters is whether the challenge is justified and whether it has merit. However, I have seen it suggested that the Government wish to do away with judicial review altogether and even that these reforms will lead to imprisonment without trial. As I will explain, these fears are entirely ill founded. The Government believe that the roles of Parliament and the courts should exist within a relationship of mutual respect and co-operation. In that context, I should emphasise what the provisions do not do: they do not seek to undermine or fetter judicial discretion; they do not seek to challenge the basis on which judges approach questions of judicial review; and we have not altered legal standing, much as that was open to criticism. That was a response to the consultation paper.

Criminal Justice and Courts Bill

Debate between Baroness Kennedy of Shaws and Lord Faulks

Monday 21st July 2014 Lords Chamber

[Baroness Kennedy of The Shaws (Lab)]

If the Government have so many reservations about this clause, surely their position should be to oppose it. The Government’s position at this stage should be to say that they think the Committee should look closely at this clause because they are not happy with it. Surely that should be the Government’s position.

[Lord Faulks]

The Committee is looking carefully at the clause. I have endeavoured to assist with various questions to indicate that certain technical amendments would have to be made, which would not alter the fundamental purpose behind the clause, but would nevertheless make it more satisfactory.

Anti-social Behaviour, Crime and Policing Bill

Debate between Baroness Kennedy of Shaws and Lord Faulks

Wednesday 22nd January 2014 Lords Chamber

[Baroness Kennedy of The Shaws]

I, too, welcome this reform. I think it is important that a female voice is heard saying that this is a good move forward, rather than something that looks as though it has been gifted to us by men; women are happy for this to be happening.

I reiterate what my noble friend just said about the position of women in the circumstance of domestic violence, where the abuse can often mean that they are fearful of not participating in looking after stolen goods or whatever. I have several times recently acted for women who have failed to inform on their husbands in situations of terrorism. Your Lordships will remember that we introduced new law which made it a duty to inform if you are conscious of people plotting or planning acts of terrorism. A number of wives have been prosecuted for that. I have to say that juries do not like it. They often realise, particularly in the circumstances of very powerful personalities in the form of the menfolk and where women have little power, as in some minority communities from which terrorism has recently been emanating, that there has to be understanding of ways in which women are prevailed on and are in terror of going to the authorities. I hope that making this change does not in some way militate against the raising of domestic violence as a background to an understanding of women’s roles when it comes to allegations in the criminal courts.

[Lord Faulks]

I shall respond briefly. I am most grateful to the noble Lords, Lord Pannick and Lord Beecham, and the noble Baroness, Lady Kennedy, whose voice is always welcome. As she said, it is important to have a contribution from someone of her gender.

I should emphasise that the Government are absolutely committed to ending violence against women and girls in any community. The noble Baroness rightly draws attention to particular communities where that may be a feature. Duress as a defence has been well established for many years and will continue to be available to men and women, regardless of marital status. Of course, the matter will remain under active consideration. The Law Commission last looked at the issue specifically in 1977. If there are further matters, it will no doubt consider them. I thank noble Lords very much for their contribution.

Anti-social Behaviour, Crime and Policing Bill

Debate between Baroness Kennedy of Shaws and Lord Faulks

Tuesday 12th November 2013 Lords Chamber

[Lord Faulks (Con)]

My Lords, I have little to add to what my noble friend Lady Manzoor said so expertly in moving this amendment. As a member of the JCHR, this was one of the recommendations that we made in our report.

I very much endorse what the noble Lord, Lord Harris, said. I hope that the reporting to Parliament would not just be a dry recitation of the effect of criminalisation in terms of statistics, but would go wider. I am sure that the Minister will reassure us on that. This should not be simply a formality. We are stepping into an acutely sensitive area and, although we said that we approved cautiously of the decision to criminalise forced marriage, it is a matter that must be looked at very carefully for fear that more harm may come than good.

[Baroness Kennedy of The Shaws (Lab)]

My Lords, I, too, support the noble Baroness in her amendment. I saw her nodding at the suggestion that any reporting back should be more comprehensive than simply reporting on the criminal aspects. There should be many other opportunities taken up by Government to press for the changes that underpin what the Government are seeking in criminalising forced marriage.

One factor that I would press upon the Government is that there should be greater discussion in families, for example about marrying close relatives, such as cousins. I used to chair the Human Genetics Commission and there was considerable sensitivity about this kind of discussion and about the implications of marriage within certain boundaries and how it perhaps increased risks for future generations. I think that when people are well informed that often changes social practices.

I also think that imams should be well informed about the ways in which the women in their congregation are disadvantaged by not having the cover of civil marriage so that they have rights that can be enforced in the courts. My clients have sometimes invoked Sharia law as being generous towards women at the ending of marriages or after death. Although that might have been the case in the past, nowadays women are more advantaged by what is available to them through the civil courts in the United Kingdom. I think that such pieces of information should be much more widely disseminated to communities where these issues arise.

Terrorism Prevention and Investigation Measures Bill

Debate between Baroness Kennedy of Shaws and Lord Faulks

Tuesday 1st November 2011 Lords Chamber

[Baroness Kennedy of The Shaws]

My Lords, I support the amendment. Unlike the noble and learned Lord, Lord Lloyd, I do not think it is pointless. We should always remind ourselves that emergency measures have a way of seeping into the legal system as a whole. We have learned that over time. Often, things that are introduced as emergency measures end up remaining on the statute book for far too long. The fact that we come together and annually review a matter—even if we do not manage to persuade the Government—does mean that the matter is before us, and we are still talking about something that is being used as an exception to the rule. I therefore urge those who are listening to see why this is important, and that we do have the annual review that we have always had in the past.

[Lord Faulks]

My Lords, these provisions followed a lengthy counterterrorism review and represent the views of the Government as to where the line should be drawn between the necessary powers, by way of TPIMs, and the liberty of the individual. This legislation has been through the other place and is going through your Lordships’ House in a thoroughly orthodox way, and the provisions are being carefully scrutinised. TPIMs contain a considerable number of safeguards, which have already been discussed in Committee, and they reflect a considered compromise between the various arguments. The Bill does not represent a response to the immediate crisis, as the 2005 position did, and has not gone through Parliament by way of accelerated procedures; it represents the result of lessons learnt.

The provisions can be repealed by an order-making power or in the way that any other legislation is repealed. It is tempting with extraordinary powers—and I readily concede that they are extraordinary powers—to suggest that they should be under more or less constant scrutiny. But where the Bill represents a considered response, five years is an appropriate time in which Parliament and the Government can consider this particular take on a particularly difficult situation. At that juncture, the Government and Parliament can think again. For the moment, as the noble and learned Lord, Lord Lloyd suggested, squabbling every year about this would not improve matters, and we should rest with the provisions as they are.