Privileges and Conduct Committee

Debate between Baroness Kennedy of Shaws and Lord Pannick

Monday 17th December 2018 Lords Chamber

[Baroness Kennedy of The Shaws (Lab)]

My Lords, I was not present at the previous debate. Ironically, I was in India speaking to a gathering of senior judges about the failure of justice systems to deliver justice for women and the underlying problems, sometimes with the law but more often with attitudes, that persist in our societies to the detriment of women.

Had I been here, I would not have voted. I would have recused myself because of my friendship with Anthony Lester. I have known him since I was a young barrister. I have huge admiration for him, and my fondness for him and his family is considerable, but we do not sit in judgment in cases involving a friend or a colleague. No juror would sit in a case where a friend was in the dock; no judge would sit in such a case. That is because friendships colour our judgment. We do not want to think ill of a friend. We see their pain and feel their humiliation. We hear their side of the story and want to believe it. That is in the nature of friendship; we are partisan.

That was why we created in this House an independent commissioner. It was because we recognised that the risks of partisanship were great. We recognised that institutions often protect their own, as we had seen the scandals around the Catholic Church, the Anglican Church, the BBC, the police and different aspects of the establishment. Reflecting on all that, we created the current rules.

I ask the same question as the Senior Deputy Speaker: when the previous debate took place, who was in the House to make the case for the complainant, to speak as her friends and to speak of her character and achievements? That was why, when I read the Hansard of the debate, I was covered in gloom: it was an ill judged and misconceived debate. Although it was presented as being about process, the noble Lord, Lord Pannick, and others expressed views that implied they found such an accusation difficult to believe of their friend. That is how we all feel about our friends. The debate was presented as being about process, but it was not about justice.

All the tropes that imply that women are somehow not be to be relied on were presented to this House; for example, about delay. We have learned that delay is not a reason for not believing somebody, especially when they have experienced some transgression of a sexual kind. Things were said about writing something nice in a book about somebody who might have done something inappropriate to you, but probably every woman in this House will tell you how you get on with business after somebody has behaved inappropriately and try to normalise it so that your relationships can continue, especially if your promotion, your Bill, which you are trying to get through Parliament, or your pupillage might rely on the good will of the person who has crossed the line.

I want to remind the House of the terrible folly that has blighted this distressing business in the way that it has been discussed in the media and in this House: the confusion between criminal trial rules and disciplinary processes. This is not a criminal process—I want to emphasise that to many of the older lawyers in this House who do not seem to have kept up with the times and the disappointment that women feel about how legal processes fail them. This is a disciplinary process. Talk of proof beyond reasonable doubt, rigorous cross-examination and the need for counsel is wholly inappropriate.

Let us remember why: we are here dealing with an imbalance of power. That is the basis of the complaint. Women are complaining that their working lives and professional interactions are blighted by sexual harassment. There will be few women in this House who have not experienced it at some point in their careers. Many of us just learned to brush it off and get on with things but the young do not accept that any more; they want proper processes and they do not want it to be dealt with in the way that has been described by many of our older lawyers. Young women will not come forward to make complaints about powerful men if they are going to be subjected to Old Bailey-style quizzing in the presence of the very Lord they are complaining about.

Let us imagine that it is a young librarian in this House who has been groped by a Peer. Is she really expected to face him or his well-heeled lawyer? How do we create equality of arms when we have a Lord able to secure the professional services of a top QC and the young librarian can afford no such grandeur? Do we find some low-level lawyer and pay him or her out of the public purse when we are cutting legal aid so much to the bone that most people are having difficulty finding representation? Could we justify it? It was for all these reasons that Members of this House devised a system in keeping with most disciplinary procedures, using the inquisitorial method, not the traditional adversarial method. That means an independent assessor, arbitrator or commissioner investigating the complaint, sensitively testing its veracity, applying the same careful, probing attention to the account of the person complained of and then allowing each the opportunity to respond to the account of the other. The commissioner then reaches a conclusion on whether the complaint has probity.

I have sat in that role on a number of occasions. She has the advantage over any of us in that she has heard the live accounts of both parties. We invented this process without complaint at the time. I have no doubt that it could be improved and, as we go forward, I think it should be. Because of my own experience in these cases, sitting as the commissioner did, I suggest that it is better to sit with another assessor, as I usually do. I have always felt that I benefited from the help of others in evaluating credibility. The commissioner in this case has been subjected to wholly unjust criticism. She is a very experienced solicitor and we chose her carefully after a competitive process. She has dealt, in her 40 years’ experience, day in, day out, with the stuff of humankind, sitting as a judge in mental health matters. She is not an acquisitions and mergers lawyer, a commercial contracts lawyer, or someone dealing with fine points of law in the Supreme Court, but she has dealt, day in, day out, with the stuff of human frailty—human falls from grace and issues of dishonesty and honesty. We burdened her with the responsibility of judgment on our behalf and she deserves our respect, rather than what she was treated to.

I shall mention one area where I think she may have been wrong in law. She took the view that the allegations stood or fell together. While she may have felt handicapped by Lord Lester’s position that all the matters were fabricated, it was quite possible, for example, that there was inappropriate conduct and an unwelcome sexual pass but that the business of having a discussion about coming into this House, perhaps sitting on the Cross Benches—a discussion that many of us might have had with talented persons we thought might have contributed to this House—might have been misunderstood. The two may have become conflated, so to have felt that the allegations all stood or fell together seems to me a mistake. Evidence is not a seamless role: you can be absolutely truthful and right about one thing and mistaken about something else. The Privileges Committee, however, agreed with the commissioner’s decision and this House will have to make a decision too.

I suggest to the House that those who are friends of Lord Lester, like me, should not be voting. I will not vote. It would not be appropriate: I am conflicted between my friendship with Lord Lester and my desire to see greater justice for women. I believe that we still have not got the system for women right.

Before I finish, I want to say that I think the suspension of four years was too long, but that boat has sailed now that Lord Lester has resigned.

[Lord Pannick]

As a matter of information, it is not my intention to call a vote today.

[Baroness Kennedy of The Shaws]

That is a source of relief to many of us. It would have been very inappropriate, as it was on the last occasion.

I feel very sad about this whole business. I am sad for the complainant. I am sad that the commissioner has had a tough time. I am sad for Lord Lester, his wife and his family. I want us to make a pledge to behave better. As men and women, we are trying to remake our world. We want an equal society. We will achieve that only when there is mutual respect between men and women. We can only do that together, as men and women. This House should see that we do that as we go forward. These processes have to be good enough for the job.

Counter-Terrorism and Security Bill

Debate between Baroness Kennedy of Shaws and Lord Pannick

Wednesday 28th January 2015 Lords Chamber

[Baroness Kennedy of The Shaws (Lab)]

My Lords, I shall start by mentioning that I, too, serve on the Joint Committee on Human Rights—I am afraid that a whole flurry of us are getting involved in this debate. There certainly was a real consensus within the Joint Committee that applying this duty to universities would be detrimental to freedom of speech. We have been most concerned about it. One of the things that I think we have all now acknowledged is that freedom of speech is an absolute value to higher education. To interfere with that or to create a chilling effect is something that we should step back from. I endorse entirely all that has been said by others on this subject and want to add one or two things.

I have acted for a number of people involved in failure to fulfil their responsibilities in the criminal field, where they have not informed on those who seemed to be involved in terrorist activity. The duty to inform is real. The universities are very conscious of it, as are the student bodies. The concern that seems to be at the base of this—and which the public would want to see being at the base of this—is that, if you were to hear that people are planning and plotting things, there is a responsibility to do something about it. That already exists in law. It is the further steps that are involved in this that worry people.

Like the noble Lord, Lord Macdonald, and the noble Baroness, Lady Brinton, and others, I am involved in higher education, and I have been for some time. I too am the head of an Oxford college. Oxford University senior administrators have written to heads of house, such as Lord Macdonald and me, expressing their concern about this part of the legislation. This is partly because, as the noble Baroness, Lady Brinton, has said, it is almost impossible for us to oversee it sensibly. For example, in Oxford it would be hard to count the number of meetings that take place in any one week across the college structure and the whole of the university. I cannot imagine what the numbers might be. The noble Lord, Lord Macdonald, and I talked about the possibility of doing a review to see what the number was. We are certainly talking about hundreds. The same would be true in Cambridge and in universities around the country. The autonomy of student unions to invite their speakers quite independently of the governance of the university must not be forgotten.

I speak from my experience as a lawyer who has acted in the criminal courts in this field during the Irish Troubles, but most particularly in recent years around the recent phase of terrorism. I acted in the case that came to be known as the Crevice trial; the fertiliser bomb plot. I acted in the transatlantic bomb plot where seven young men were put on trial for trying to blow up aeroplanes. I have acted for a number of the different wives of men involved in terrorism in relation to their duty to report. I have acted for a boy who was groomed while he was on the internet in his bedroom in his parents’ house. I have acted for those who were involved in trying to dispose of evidence in the aftermath of the 7/7 bombings in relation to 27 July 2005. So I have acted in a whole series of these cases and I can honestly say that my experience is that these are not people who were radicalised in universities.

Radicalisation does not go on in universities. By and large I am talking about young men and it is about friendships and networks of friendship where people learn from each other and pass books and material to each other. It is not about closing down what happens in universities. It is really about what happens in our communities. So the work that is already going on in communities is probably the stuff that needs to be strengthened. All I urge is take a look at the real evidence of this. It is not enough to tick a box and say, “Some of these boys went to university, some of them were on access courses”. Many of our young around the country are going to university, but these boys were not radicalised because they were university students, in the way in which we think of university students. I see noble Lords nodding. That really has not been the case.

I go back to my concern about the chilling effect, which has been described by others. There is also the deterioration of trust effect, which is very important in the relationships between those who teach and those who learn. The other thing is that I spend time with the students in my college. I have them in regularly to gatherings. I do a regular meeting with sets of 12 at a time. We have discussions; they talk about all these things that are being described, some of them by the noble Lord, Lord Macdonald. They debate things such as, “Is democracy so wonderful, when it is bought wholesale by donations to political parties and where the small people do not get a voice? Is it right that religion can be denigrated?”. They want to debate things such as, “What is the point at which people are entitled to take up arms?”. I remember when I was president of SOAS, the School of Oriental and African Studies, there would be incredibly vital debates and arguments about the circumstances in which someone was entitled, as Mandela was in his time, to take up arms against the state. When is it appropriate? That is how young people learn about the nature of our society. It is where they learn and hear the counter arguments to some of the things that they feel seem so obvious to them.

This is not, by and large, where your radicalised young person is giving voice to his views. That is happening in the café down the road. It is happening in the kebab shop. It is happening in people’s rooms, but it is not happening in the universities in the way that somehow is imagined by this part of the legislation. I urge against it and ask that the bit about universities is taken out, because we are interfering with one of the most important freedoms that should be protected in our society.

[Lord Pannick (CB)]

My Lords, Oxford is well represented today. I declare an interest as a fellow of All Souls College. I find this a genuinely difficult issue. I am supportive of the Government’s general objectives in Part 5; far more supportive, I think, than some of the speakers who have addressed noble Lords this afternoon, particularly in the earlier debate.

It seems to me that the starting point has to be that there is a disturbingly large number of people out there who are prepared to take violent action for ideological and religious reasons. There is an even more disturbingly large number of people who are prepared to encourage or to condone such violence. For me, the most shocking part of the appalling events in Paris were not the attacks on the journalists and the kosher supermarket by deranged Islamists, it was that a minute’s silence for the victims was unenforceable in many French schools, because of sympathy for the murderers and their supposed cause from students and, presumably, their families. This demonstrates, I think, that in France there is an alarming failure to understand the basic principles of a liberal democracy; a democracy which protects the freedom of religion—rightly so—of those who refuse to recognise the basic rights of others.

My starting point is that the Government are rightly determined to prevent such developments here; developments which breed religion-inspired violence. Having said that, I share the concerns which have been expressed this afternoon about the impact of these provisions on freedom of expression and academic freedom in universities. My concern is very similar to that of the noble Lord, Lord Macdonald of River Glaven, and the noble Baroness, Lady Kennedy. It is that the duty which the Bill will impose is very difficult to reconcile with the very idea of a university whose primary role is to encourage academic debate and dissent. I think that a code which can be enforced by legally binding directions is far too blunt an instrument in the context of a lecture hall or a seminar room. If you try to wear a policeman’s hat and an academic gown at the same time, you are unlikely, I think, to perform either task adequately.

The Minister’s helpful letter to noble Lords on this issue makes the point that academic freedom is not absolute, even in a university. The Minister is absolutely right: the law already restrains freedom of speech, in universities as elsewhere, through the law of defamation, restrictions on threatening or abusive words or behaviour, and prohibitions on support for proscribed organisations. Universities have no exemption in that context, but this Bill would impose duties that are far more extensive and far more destructive of basic academic freedom than anything which is contained in current law.

I would prefer universities to be excluded from Part 5, but would be much reassured on this difficult subject if the Government would support Amendment 105, in the name of the noble Baronesses, Lady Lister of Burtersett, Lady O’Loan, Lady Buscombe and Lady Sharp of Guildford, or something like it. Their amendment would write into the Bill the protection for freedom of speech currently contained, as your Lordships have heard, in Section 43(1) of the Education (No. 2) Act 1986. I note that, in the Minister’s letter to noble Lords, he says that the duty under the Bill,

“is in no way designed to cut across the importance of free and open debate”,

particularly in universities. Good, I am very pleased to hear that. But then let the Bill say so expressly, to provide reassurance to the many good people in universities and elsewhere who are very concerned, and rightly so, about this issue.

Criminal Legal Aid (General) (Amendment) Regulations 2013

Debate between Baroness Kennedy of Shaws and Lord Pannick

Wednesday 29th January 2014 Lords Chamber

[Lord Pannick (CB)]

My Lords, another week, another set of legal aid regulations to regret. These regulations will severely limit the availability of legal aid advice and assistance in prison law. I shall mention four examples of issues for which legal aid advice and assistance will no longer be available by reason of these regulations. The first is Parole Board proceedings for indeterminate sentence prisoners—ISPs—where the Secretary of State refers the case before the expiry of the minimum term for advice on a move for the prisoner to open conditions, and also where an ISP is removed from open conditions and the Minister seeks advice from the Parole Board on a return to an open prison. This will no longer be covered. The Parole Board itself said in its written evidence to an inquiry on this subject by the Joint Committee on Human Rights that because most prisoners require a period in open conditions before the Parole Board can be satisfied that they are safe to release:

“There is in consequence, a great deal at stake for prisoners at these reviews”.

The need for high standards to be applied at such hearings, in the interests of the prisoner and in the public interest, is obvious, and because of the impossibility of prisoners representing themselves effectively at such hearings and problems such as how to manage a prisoner cross-examining a professional witness giving evidence about the prisoner’s conduct in prison, the Parole Board told the Joint Committee in its written evidence that it believed the proposal to remove legal aid,

“is very likely to impede our attempts to deal with cases fairly, promptly and effectively”.

It is very surprising that the Secretary of State should have proceeded with the changes despite the concerns expressed by the Parole Board.

The second example of decisions which will be excluded from legal aid is decisions to place or keep a prisoner in Category A—that is, prisoners assessed to be a high security risk—which of course affects prison conditions. A third excluded category is the allocation of places in mother and baby units. Vulnerable women will be denied access to legal advice on whether they should be separated from their babies. A fourth example is decisions on removal from association—that is, segregation decisions. One could give many more examples.

What are the justifications offered by the Secretary of State for denying legal advice and assistance in such important matters, even if all other eligibility criteria are satisfied? The main answer given by Mr Grayling, the Secretary of State for Justice, in his oral evidence to the House of Commons Justice Select Committee on 3 July 2013 is that the difference between him and his critics was “ideological”—his word. Indeed, he used that word three times in as many minutes in response to questions on this matter. The report of the evidence is published as HC 91. Mr Grayling told the Justice Committee:

“I do not believe that prisoners in jail should have the right to access legal aid to debate which prison they are put in”.

He went on to say that they should not have the right to legal aid to raise other questions about their treatment, with limited exceptions.

This is to reverse 35 years of progress in the approach adopted by the legal system to the treatment of prisoners. The modern era of prison law began in 1978 when the Court of Appeal required fair disciplinary proceedings for those alleged to be involved in the Hull prison riots. Since that decision, our courts have repeatedly made it clear that administrative decisions in prison must comply with basic standards of legality, procedural fairness and rationality.

The application of legal standards to decision-making within prisons has immeasurably improved the quality of those decisions and ensured greater transparency and accountability. No one, with the possible exception of the Secretary of State for Justice, could doubt the public benefits in enabling prisoners to hold prison authorities to basic standards of legality and fairness or the indispensable contribution which has been made in this respect by legal aid. That a Secretary of State, and indeed a Secretary of State for Justice, should now, for so-called ideological reasons, wish to reverse such developments is very much a matter for regret.

Mr Grayling’s second point is that legal aid is not needed because the internal prison complaints system and the Prisons and Probation Ombudsman will provide redress where appropriate. Without legal assistance a prisoner is simply not going to be able to make his or her points effectively and speedily by reference to the applicable legal requirements. Unhappily, many prisoners lack basic skills of literacy or suffer from other problems which impede their ability to present an effective grievance. Her Majesty’s Chief Inspector of Prisons, Mr Nick Hardwick CBE, echoed these concerns in his evidence to the Joint Committee on Human Rights, as recorded in paragraph 174 of the Committee’s seventh report.

As the Law Society has pointed out in its helpful briefing on this Motion, at present many complaints are simply, effectively and speedily resolved by a solicitor’s letter setting out the legal position to the person taking the decision. The Prisons and Probation Ombudsman can only make recommendations and provides a much slower method of seeking redress than a solicitor’s letter. The ombudsman, Mr Nigel Newcomen CBE, told the Joint Committee on Human Rights that he was concerned about the Government’s proposals, in particular because his office was unable to cope with the expected increase in workload.

These regulations will not even save public money. The cost of maintaining legal aid in ISP cases before the Parole Board, for example, is minimal, and the cost of ISPs remaining unjustifiably in closed conditions when they could safely be allowed to move to open conditions is high. The Howard League for Penal Reform has pointed out that the Ministry of Justice has put the cost of dealing with each complaint to the ombudsman at £830, which is more than three times the £220 fixed fee for a solicitor doing this work under the legal aid arrangements.

In the Supreme Court last April, in the case of Osborn v the Parole Board, reported in volume 3 of the 2013 Weekly Law Reports page 1020, paragraph 72, Lord Reed stated for the court that,

“procedures which involve an immediate cost but contribute to better decision-making are in reality less costly than they may appear”.

I suggest that the Minister conveys the suggestion to the Secretary of State for Justice that the words of wisdom of Lord Reed should be displayed on Mr Grayling’s desk in very large letters.

These regulations will do enormous damage to the rule of law in prisons and there is no justification for them. I beg to move.

[Baroness Kennedy of The Shaws (Lab)]

My Lords, I echo everything that has been said by the noble Lord, Lord Pannick. I, too, regret that the Government are taking this course and regret profoundly what was said by the Secretary of State for Justice, Mr Grayling, in describing the differences between those who supported the maintenance of legal aid and those who were agin it. It is as though it is not enough to go to prison and lose your liberty, and experience the deprivations that we know imprisonment means, so we are looking for other ways to punish.

I will speak specifically about women. As we in this House all know, women in prison are very largely those who have experienced abuse or domestic violence. They are often in prison because of serious social problems, they have mental health problems, and often have problems of addiction. The panoply of problems that they have do not make them people who will be well able to represent themselves in trying to get their rights in prison.

I will mention the issue of mother and baby units. In the past I have been involved in such cases, where a woman seeks to prepare for an application to have her baby remain with her, and has to secure supportive evidence, expert reports, and so on. It is impossible for a woman to do that without the help of a solicitor. Representations have to be made in relation to any refusal to offer a woman a place in a mother and baby unit, and I can assure noble Lords that that is sometimes done—and not done—for the best of reasons.

Women sometimes make applications for temporary release when something disastrous is happening at home with other children; they seek a temporary licence so that they can spend time at home. Many female prisoners are their children’s primary carer. We know that 55% of women in prison have a child under 16 and wish to make use of that release on temporary licence when they have emergencies at home. I know from experience that the application of the release on temporary licence policy is frequently misapplied by prisons, and women who are eligible are incorrectly refused. Legal help is vital to them for making their application, making representations, drawing on supportive evidence, and so on, but it is no longer available.

Disabled prisoners often have real problems about the suitability of their accommodation or other services they need, and need legal help to acquire them. Mentally ill prisoners do not get legal help to deal with many of the attendant matters that go along with convincing the authorities of the seriousness of their problems, whether that is on the depressive scale or as regards behaviours that clearly show disturbance, but which often bring them into dispute with the authorities in the prison. There are often arguments about the capacity of such women. They present with difficult and challenging behaviour which is often met with a strong disciplinary response from the prison so that they are awarded extra days as punishments, when in fact mental health is the problem. As extended prisoners, women often have the date of release set further and further away because of their behaviour, but that behaviour is due to their mental ill health.

In those sorts of cases you need to have the representation of someone who is legally qualified to help take the appropriate course and find the appropriate expertise to support applications. The Government’s response is that prisoners should use the internal complaints procedures—the noble Lord, Lord Pannick, described the inadequacy of that. The process of appealing to the ombudsman is often slow and does not give the remedy that is sought. Add to all that the poor educational attainment of most women in prison and the situation is hopeless.

Before this debate a Member of this House said to me, “Are you speaking in the legal aid debate?”, to which I replied, “Yes”. He said, “You know it’s hopeless”. My response to that was that it may be hopeless, but I hope that by having this debate some members of the Government will feel shame. I am speaking of the most vulnerable today. I hope that a feeling of shame will enter into discussions among the Government and between the coalition partners about the impact of this on the lives of some of the most fragile people in our society.

Crime and Courts Bill [HL]

Debate between Baroness Kennedy of Shaws and Lord Pannick

Monday 10th December 2012 Lords Chamber

[Lord Pannick]

I entirely agree that judges deserve all the protection necessary in those circumstances. However, the press and broadcasters are perfectly entitled to publish photographs of the judge who has heard the terrorist trial or any other sensational case. This amendment would have no impact in that respect.

[Baroness Kennedy of The Shaws]

Does the noble Lord accept that there is something different about the moving camera? There is a famous book by Christopher Isherwood, Goodbye to Berlin, in which the first line is: “I am a camera”. The reason why he starts that way is because he is saying: “I am providing you with a subjective view from my eyes—my edited account of what was happening in the 1930s during the rise of Hitler in Berlin”. He was pointing up the fact that the camera is very subjective. Does the noble Lord agree with that?

[Lord Pannick]

Of course there are differences, but no difference that could possibly justify these amendments. Noble Lords will know that the proceedings of our Supreme Court are broadcast virtually every day that the court sits. None of us has any knowledge of that; it has caused no adverse effects and I cannot understand the noble Baroness’s concerns.

[Baroness Kennedy of The Shaws]

My Lords—

Justice and Security Bill [HL]

Debate between Baroness Kennedy of Shaws and Lord Pannick

Wednesday 21st November 2012 Lords Chamber

[Lord Pannick]

My Lords, I shall speak to Amendment 56 in this group, which has been proposed by the Joint Committee. It would ensure that rules of court make provision for the media to be notified of any application for a closed material procedure so that they can make representations on the issue to the judge. The amendment would also ensure that a party to a closed judgment may apply for it to be made open at a later stage. It is not sufficient for the Secretary of State to give notice of an application for a CMP to the parties to the case. The reason for that is that a CMP will severely impede the ability of the press to report legal proceedings. It may be that it is only the media who are concerned about a proposal to introduce a CMP in a particular case; the other parties may not be focusing on the matter or may not object.

It is also essential for rules of court to provide a mechanism by which judgments that are closed can be reopened and published after the passage of time if there is no longer any reason for secrecy. These provisions were recommended by the Joint Committee, and perhaps I may quote what was said yesterday in a lecture by the president of the Supreme Court, the noble and learned Lord, Lord Neuberger:

“Without judgement there would be no justice. And without Judgments there would be no justice, because judicial decisions, at least in civil and family law, without reasons are certainly not justice: indeed, they are scarcely decisions at all. It is therefore an absolute necessity that Judgments are readily accessible”.

I accept entirely that if there is a CMP, of course that part of the judgment will be closed, but it is essential that rules of court allow for the possibility of a later application to open up that which no longer needs to be secret.

[Baroness Kennedy of The Shaws]

My Lords, I support the comments of the noble Lord, Lord Pannick. I serve on the Joint Committee on Human Rights and we were concerned that confidence in the judiciary is absolutely vital in our society. The press coverage of matters and their entitlement to come to a court and to make applications is an important element of democracy and open justice. We would encourage the Government to accept this amendment.

Crime and Courts Bill [HL]

Debate between Baroness Kennedy of Shaws and Lord Pannick

Monday 25th June 2012 Lords Chamber

[Lord Pannick]

My Lords, I find this a much more difficult issue than some noble Lords who have spoken. The noble and learned Lord, Lord Lloyd of Berwick, emphasised that we all agree about the importance of diversity, and the noble and learned Lord, Lord Woolf, emphasised his personal commitment to diversity, which I am aware of and, of course, I recognise. The noble and learned Lord, Lord Lloyd, referred to the statistics and said correctly that some progress has been made, but the position is still woefully inadequate. Some 16% of High Court judges and only 11% of Court of Appeal judges are women. These figures are simply unsatisfactory and urgent progress is desperately required.

As the noble Baroness, Lady Jay of Paddington, mentioned, the Constitution Committee, of which she is the distinguished chairman and I am a member, conducted an inquiry into judicial appointments and reported in March. We found that one of the reasons for there being so few women on the Bench at High Court level and above is the inflexibility of the working arrangements. At paragraph 112 of our report, we observed that one significant reason for the increasing proportion of women at senior levels in other professions in recent years has been due in large part to the greater use of flexible working hours. At paragraph 117, we recommended that allowing flexible working, certainly at the High Court and Court of Appeal levels, was the “minimum change necessary” to promote diversity. We said that:

“For the number of women within the judiciary to increase significantly, there needs to be a commitment to flexible working”.

We need to recognise that many women will either want or need to take career breaks, or work part time or flexibly for family care reasons.

As I understand them, the noble and learned Lords, Lord Lloyd of Berwick, Lord Carswell and Lord Woolf, are essentially concerned about the practicality of part-time working, certainly at the Supreme Court level, but mention has also been made in this debate of the High Court and the Court of Appeal. In my experience, from the perspective of the Bar, I must say that the overwhelming majority of cases in the Supreme Court, the Court of Appeal and certainly in the administrative court occupy three days or less. Of course, there is much work to be done by judges out of court—I do not for a moment suggest that judges work only between 10.30 am and 4.15 pm—but actual time in court, which has been mentioned, occupies three days or fewer. Of course, there are longer cases, sometimes six or nine months, but they are unusual, exceptional or out of the ordinary. In any event—this is why I find this a more difficult issue than some noble Lords who have spoken hitherto—we ought to bear in mind that even at the Supreme Court level, judges have taken time away. They continue to do so, as I understand it, for a month at a time to sit in the Hong Kong Court of Final Appeal. As shown by a notorious example recently, judges at the Supreme Court level take time off, for very good public interest reasons, to sit on inquiries. We should not proceed on the basis that every judge works exclusively, full time in a particular court.

The noble and learned Lord, Lord Woolf, mentioned—he is absolutely right to emphasise this point—the high reputation of our Supreme Court and, indeed, of our whole judiciary. It is a remarkable fact that as the public have lost confidence—regrettably—in many other institutions of our society, including, most regrettably, Parliament, but also the press and the City, the public rightly retain the utmost confidence in the judiciary. It is one reason why the public are quite prepared to listen carefully, as I am sure they will, to what Lord Justice Leveson will say about press freedom. However, we ought to bear firmly in mind that the confidence of the public in the higher judiciary is in danger of being undermined to the extent that the higher judiciary reflects and is composed of so high a proportion of men with such a small proportion of women.

The point was also made by the noble and learned Lord, Lord Woolf, and the noble and learned Baroness, Lady Butler-Sloss, that surely, when someone has reached their late 50s, or 60s, when in the normal course of events they would be eligible for appointment to the Supreme Court, they ought to be prepared to sit full-time. However, surely one can envisage circumstances in which a women aged 60—slightly younger or older—may have a child aged 15 and may find it difficult to sit on the Bench during school holidays. She may also have an elderly relative for whom she is caring. These are not unrealistic examples.

In any event, I suggest that the provisions in the Bill which concern the noble and learned Lords who have spoken are merely permissive. They would obviously not be applied in relation to a Supreme Court appointment unless and until an occasion arose when it was practical to do so. I suggest to noble Lords that, given the importance of a real commitment to flexible working, it would be most unfortunate indeed if the Bill were to contain that commitment but exclude it in principle in any circumstances at Supreme Court level.

[Baroness Kennedy of The Shaws]

This is an issue close to my heart. When I was a young lawyer in the 1970s I contributed to a book called The Bar on Trial, written by a group of young lawyers seeking to address the nature of the Bar at that time. I wrote the chapter on women and I have been writing about women and law ever since. The issue of flexibility is the one that exercises women in the profession more than probably any other. It is the reason why women’s careers look different—they are the people who have children and who are the primary carers.

Increasingly, women now at the Bar, perhaps unlike those of previous generations, have a different way of wanting to deal with their role as mothers. Their children are not going off to boarding school in their primary school years, they are not away from home, they are still living with their parents and there is therefore the issue of who is the primary carer. Still, I am afraid, it usually falls to women, so I am grateful to the noble Baroness, Lady Jay, and the noble Lord, Lord Pannick, for emphasising that this is about flexibility. I regret that the words “part-time” are used. Can we find a way of reformulating this so that it is about flexibility?

I am concerned that often the ways of doing things are still championed by those who have gone through the system and come out at the other end—and I say that respectfully to those who are now retired as judges. We have to be capable of changing to deal with a changed world and the changed aspirations not just of women in the profession, but also sometimes of men in the profession and of the general public, if we want to see our judiciary change in its appearance.

It is right that we are talking first about the High Court. Currently, judges go out on circuit. It is a problem, and I do not know how to square this circle, because I think it is important that judges go out on circuit to try, for example, big criminal cases. It still matters because there is something wrong with the idea that there is a local High Court judge to deal with these things—local circuits can become too cosy and it is sometimes better that someone from outside comes in to try big, difficult cases in which a lot of public outrage might be involved. It deals with the question of whether there is too much cosiness or familiarity when the same judges are always trying the same cases.

I want to pick up the comments of my noble friend Lord Pannick. When it comes to the Court of Appeal and the Supreme Court, it is very rare that women still have very young children, but it must be possible for there to be flexibility when our children are adolescents, when they are taking exams or having time out of school. It must be possible to make arrangements so that judges can have time to deal with such domestic issues. It became an embarrassment even to raise those things at one time, but it is now possible and sets of chambers accommodate those men and women who want to have time for their families—that is how the working world has to be.

When it comes to the Supreme Court, of course it is right that at the moment, by and large, those who go to sit on the Supreme Court will be about 60—that is the sort of age we are looking at—but, as the noble Lord, Lord Pannick, said, sometimes a woman of 60 is the mother of adolescent children taking exams and going through important parts of their growing lives. It should be possible to find ways of accommodating that. There is something wrong with a system when, of 25 people consulted on the recent appointments to the Supreme Court, 24 were men. Is it any wonder that we only have one woman on that court? I can say emphatically that there are women who could have taken up those new appointments, but who were not considered. I hear retired judges, and even sitting judges, saying, “We only want the best”. Of course, we only want the best, but I want us to open up what those ideas of “the best” are. Sometimes they are defined by men who have no idea about the contribution that highly intelligent women of a different experience might bring to those senior courts. That is why it is not good enough to stick with the old system. We have to embrace change if we want to see a different kind of judiciary. We should see the Bench as a whole, and not replicate the same people with those cut from the same cloth. I strongly endorse the efforts to change the arrangements and so am against the amendment of the noble and learned Lord, Lord Lloyd.

Terrorism Prevention and Investigation Measures Bill

Debate between Baroness Kennedy of Shaws and Lord Pannick

Tuesday 1st November 2011 Lords Chamber

[Lord Pannick]

My Lords, I, too, support the amendment. I am rather more optimistic that it will do a great deal of good. I agree with what has been said by the noble Lord, Lord Rosser, about the need for an annual review because of the exceptional nature of these powers, and because of the need for Parliament to have the opportunity to consider such matters annually. But there is a further factor. An annual review will surely impose an important discipline on the Government, and this is an area where we inevitably need to trust the Government. It will require Ministers periodically to consider the need for these measures, what they can say to justify them in parliamentary debates and whether or not these measures need an amendment. This is an important discipline, particularly in a context where the factual circumstances that are said to justify these exceptional measures are not going to remain static for as long as the next five years.

[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.

Terrorism Act 2006 (Disapplication of Section 25) Order 2010

Debate between Baroness Kennedy of Shaws and Lord Pannick

Monday 19th July 2010 Lords Chamber

[Baroness Kennedy of The Shaws]

My Lords, I want to comment on the interesting statement by the Minister. I speak as the chair of Justice, which is the UK-based human rights and law reform organisation whose mission is to advance access to justice, human rights and the rule of law. It is also the British section of the International Commission of Jurists. This House will know that that international commission set up a panel of eminent jurists who reported last year on the issue of terrorism and in February 2009 produced a report, Terrorism, Counterterrorism and Human Rights, in which it recommended that there should be a review of counterterrorism legislation in this country because of its concern that there had been so much erosion of civil liberties and of some of the protections and safeguards that are so important to our system, which is admired around the world.

We therefore welcome the Government's review. The steps they are taking to reinstate many of the liberties that we saw eroded are greatly welcomed by human rights lawyers. However, we are concerned that the Government are still going to continue with the 28-day pre-charge detention relating to terrorism, even for six months. In our view, with great care taken to look at the evidence, we are confident that 28 days is not necessary. We make the argument that it is not necessary because plainly it is at odds with the right to liberty. Also, the period is far longer than any other western democracy has in place, and there is a lack of effective safeguards.

I remind the House of a number of the facts of the cases that have come before the courts in recent times. Our review of the use of the 28 days over the period since 2006, when 14 days was raised to 28 days, found that six suspects had been held for as long as 27 or 28 days. Three of those were released without charge. Three were charged with terrorism offences but, of those three, two were acquitted and only one was convicted. In that one instance where there was a successful conviction, it appears that the great majority of admissible evidence was already available to the police at the time of arrest; it was certainly available before the 14 days were up.

We have also seen that five of the six suspects held for up to 28 days were arrested in the context of Operation Overt, the liquid bomb plot. I should declare that I was one of the counsels in that case so I am familiar with it in some detail. Indeed, all three men who were ultimately convicted were charged within 12 days of their arrest—the 28 days were not necessary in that case either.

Justice urges the House that to defer a decision on this matter even for six months is too long. I remind noble Lords that in other western democracies, particularly in common law countries, there is nothing like this erosion of safeguards and protections. In Canada, there is a requirement to charge within a day; in the United States, it is two days; in South Africa, it is two days; and in New Zealand, it is two days. Even in other parts of Europe which do not have the common law system, to which I am so committed, the position is different. For example, in Germany the period is two days; in Spain, it is a maximum of five days; and in France, it is a maximum of six days. Charging is expected to take place within those limits.

We are concerned that there is an incompatibility with Article 5 of the European Convention on Human Rights. We think that it is highly likely that Schedule 8, the authorisation procedure, will be found incompatible with the requirements of Article 5. We ask the Government to look again at whether there is even a need to have the six months’ extension which is now being considered.

However, I say all of that in the context of our view that the Government are taking the right steps in having this inquiry into what is needed. Clearly, no country should roll over in the face of terrorism and special steps have to be taken, but it is our view that the extension to 14 days, which was introduced, is adequate to the challenges that we all face.

[Lord Pannick]

My Lords, I share the concerns expressed by the noble Baroness, Lady Kennedy of The Shaws. I appreciate that we are debating this issue in the context of the Government’s very welcome announcement that they will conduct a review of the 28-day pre-charge detention limit. However, I am unpersuaded that there is any basis for continuing this power, even on a temporary basis.

There are three points which your Lordships will wish to have well in mind. First, this is an extraordinarily exceptional power. English law normally requires that suspects be charged or released within four days. The pre-charge detention limit for terrorist cases was limited to seven days until 2003, when it was raised to 14 days. English law jealously restricts the power of the state to detain people without charge, and rightly so. It is only when charged that the person concerned has the right to be told the accusation against him and to respond to it. For the state to hold a person without charge for up to four weeks is inevitably a very substantial interference with their freedom and inevitably has a very damaging effect on their work, family relationships and reputation in the community.

Secondly, there must, therefore, be a very heavy onus on the Government to justify such an interference with basic liberty. The real question is whether they can meet that heavy onus. I suggest that they have failed to identify any practical experience whatever which establishes, or indeed even suggests, that a 14-day limit would not suffice. This is, of course, not a new problem. The Home Office has all the relevant information. Will the Minister in her reply please identify for the House whether there are any cases in which pre-charge detention after 14 days was necessary to the successful prosecution of a terrorist suspect? It is surely not sufficient for the noble Baroness to assert—and who can disagree with the assertion?—that it is impossible to be sure that there might never in the future be an occasion when more than 14 days might be required, as she put it.