Criminal Justice and Courts Bill

Debate between Baroness Lister of Burtersett and Lord Brown of Eaton-under-Heywood

Monday 27th October 2014 Lords Chamber

[Baroness Lister of Burtersett (Lab)]

My Lords, I support these amendments. First, I declare an interest as the honorary president and a former director of the Child Poverty Action Group. It is an organisation which helped to pioneer the use of judicial review for the marginalised citizens about whom we heard in debating the previous amendment, thus emphasising that we are talking about not just the interests of lawyers but the interests of some of the most deprived, marginalised citizens of our country. I speak also as a member of the Joint Committee on Human Rights. I remind your Lordships’ House that in the first of our two reports on our grave concern about the human rights implications of these changes, we said:

“We therefore do not consider the Government to have demonstrated by clear evidence that … judicial review has ‘expanded massively’ in recent years as the Lord Chancellor claims, that there are real abuses of the process taking place, or that the current powers of the courts to deal with such abuse are inadequate”,

notwithstanding what the noble Lord, Lord Horam, said with regard to the previous amendment. I have reread our debates on this issue and I have read all the briefing that we have received. I can only come to the conclusion that the provisions in Part 4 are a series of highly imperfect solutions looking for a problem—a problem that no one else can see.

As regards Amendment 157, in Committee I raised the concerns of NGOs. I said that they warn of,

“the chilling or deterrent effect of these clauses, which appear to mean that people who are not directly party to the proceedings but who have supported an applicant could be held liable for costs”.—[Official Report, 30/7/14; col. 1601.]

Michael Spencer, solicitor for the Child Poverty Action Group, said:

“If individuals or groups fundraise or seek donations to help bring their case, the financial clauses of the Bill will put their donors and funders at risk too”.

The Minister responded quite fully to my concerns and fears. He said that,

“we do not believe that the provisions would affect the common law position concerning when costs would be awarded against a party … These clauses should not cause anyone to pay costs who would not do so under the current law, except those who should but of whom the court is unaware. I hope that will allay, to some extent, the fears that some have about making challenges to a school or some other small project, which they might reasonably hope would be the subject of a judicial review”.—[Official Report, 30/7/14; col. 1612.]

However, I fear that the concerns and worries of groups outside this House have not been allayed. As the most recent briefing from this very wide group of NGOs, which represents a wide range of lawyer and non-lawyer interests in this area, still raises concerns, I discussed with Justice why it was still worried about this, despite the reassuring words that the noble Lord gave us in Committee. Justice said:

“While the Minister’s assurance is welcome, as the Minister explains, he cannot predict how the courts will respond to the change in position proposed by the statute. Similarly, Parliament cannot have a full picture of the rules which the court will be applying, as the Bill provides for the detail of the change to be in the rules to be set down by the rules committee. Yet, there is nothing in the Bill which would send a message to the courts that they should not depart from their previous approach to the allocation of costs. If the Government doesn’t intend to change the position in the common law, the question is: ‘Why not make that clear on the face of the Bill?’. Instead, by leaving the ambiguity in place, and creating a clean statutory slate of instructions for the courts, Ministers are creating a real risk that individuals will be deterred from litigating while the costs risk is ascertained. As and until the position is clear, individual solicitors will be unable to advise their clients on the likely costs risk, if any. Caution will be required. The breadth of the disclosure requirement in Clause 71 makes this chilling and deterrent effect particularly dangerous”.

I will not go on but there is a real danger here that I hope we in this House will prevent happening.

[Lord Brown of Eaton-under-Heywood (CB)]

My Lords, I, too, support Amendment 157 for the reasons already given by the noble Lord, Lord Pannick, and the noble Baroness, Lady Lister. There are indeed currently real perils in Clause 71 in the way of the chilling effect that it must inevitably have. In Committee on 30 July, as reported at col. 1607, in relation to what was then Clause 65 and is now Clause 71, the Minister twice said that the senior judiciary welcomed this provision. I was troubled by that and looked at the response of the senior judiciary of last November. I hope that I have the right document and that I have isolated the right paragraphs; that is, paragraphs 34 and 38. I am sure that the Minister will correct me if I am wrong, They suggest that, in certain circumstances, there should be mandatory disclosure of financial circumstances. As I read that response—and I am unsurprised by this—the important point is that it refers only to when determining whether to make a protective costs order or when questioning,

“whether to make a costs order against a non-party”.

Those are not routine events, and they would not require, as the clause as it stands does, a disclosure of financial resources on all applications. If I am wrong about that the Minister will correct me, but if I am right, with respect, that wholly deprives him of the support on which he rested in Committee: the senior judiciary’s response.

Criminal Justice and Courts Bill

Debate between Baroness Lister of Burtersett and Lord Brown of Eaton-under-Heywood

Monday 27th October 2014 Lords Chamber

[Baroness Lister of Burtersett (Lab)]

My Lords, I am sorry I missed the beginning of the noble Lord’s introduction of this amendment but I got called out. I simply want to speak on behalf of the Joint Committee on Human Rights. Our latest report says:

“We remain of the view expressed in our Report on judicial review that restricting the availability of costs-capping orders to cases in which permission has been granted would be a disincentive to meritorious public interest challenges being brought”—

that argument has been made—

“and we maintain our recommendation that the Bill be amended to remove this restriction”,

and that we explicitly support,

“Lord Pannick’s amendment … which would preserve the court’s current power to make a costs-capping order at any stage of judicial review proceedings, including before permission is granted”.

I hope that your Lordships’ House will feel able to support the amendment moved by the noble Lord, Lord Pannick.

[Lord Brown of Eaton-under-Heywood (CB)]

My Lords, I, too, support this amendment. By the same token that the House approved the earlier amendments, logically this amendment must be allowed as well. The vice of the proposed legislation is once again the narrowing of the courts’ discretion and the chilling of the judicial review. In this case, in the most important area of public interest litigation, it is really imperative that this amendment succeeds.

Criminal Justice and Courts Bill

Debate between Baroness Lister of Burtersett and Lord Brown of Eaton-under-Heywood

Monday 28th July 2014 Lords Chamber

[Baroness Lister of Burtersett (Lab)]

My Lords, first, I apologise that I have not spoken on the Bill before, but I wanted to intervene on Part 4. At Second Reading, the noble Baroness, Lady Hamwee, observed that Part 4 raises “citizens’ issues”. I hope that noble Lords will agree that it is therefore important that non-lawyers—who were referred to by the noble Lord, Lord Carlile—add their voice in support of the highly expert advice from the great legal minds in your Lordships’ House. Not only are those citizens’ issues, but they affect in particular poor and marginalised citizens, including, in the words of the Bar Council,

“some of the weakest and most vulnerable in society”.

Here I declare an interest as an honorary president of the Child Poverty Action Group, and a former director and legal research officer—believe it or not, although I am not a lawyer—of that group back in the 1970s, when the group spear-headed what came to be known as the social security law test case strategy, under the late Sir Henry Hodge, or the plain Henry Hodge as he was then, as CPAG’s solicitor. According to an evaluation of that strategy, Henry Hodge saw it as having an,

“independent value in obtaining substantive improvements in the law and in producing a higher standard of behaviour from administrators”.

Those are still two important functions of judicial review that are now under threat.

I fear that CPAG may be one of the organisations that the Government had in their sights, given that Mr Iain Duncan Smith accused it of “ridiculous and irresponsible behaviour” and “an ill-judged PR stunt” when the High Court dismissed a challenge to the housing benefit cap, for which it had been granted a cost protection order and permission on the basis that the case was arguable and raised issues of public importance. In contrast, Sir Stephen Sedley, in oral evidence to the Joint Committee on Human Rights, of which I am a member—I have a feeling that the Minister was himself a highly valued member at that point—said that,

“not all public interest litigation is hostile; it can be creatively used, and has been in the past. The Child Poverty Action Group was a pioneer in this respect, to elucidate the law to the benefit of everybody who is involved. Social security is a very good example, because it is an arcane and hideously complex area of law, where it is easy to get things wrong and a mistake can affect millions of people. It is very much to the advantage of everybody if the Government collaborates with challengers like the CPAG in getting the issue to the core”.

I speak today not so much as an honorary president of CPAG but as a member of the Joint Committee on Human Rights, which recommended that this clause be deleted from the Bill. I therefore support the contention that it should not stand part of the Bill, as well as supporting those amendments that would revert to the status quo. I will not rehearse at any length the arguments of the JCHR, some of which were quoted on Second Reading; there are arguments of both principle and practice, including that we should not be condoning unlawful decision-making, and the danger that it would mean that the permission stage became a full dress rehearsal and therefore could be more rather than less costly. However I would like to emphasise what is perhaps a key human rights point, when we said that it may give rise to breaches of the right of access to court in ECHR Article 6(1),

“a right which, in order to be practical and effective rather than theoretical and illusory, includes the right of access to a legally enforceable remedy”.

On this argument alone I believe that the clause should not stand part of the Bill. But as we have heard today, and earlier at Second Reading, there are also other persuasive arguments.

[Lord Brown of Eaton-under-Heywood (CB)]

My Lords, I support all the detailed amendments in this group but, more fundamentally, I support the root and branch opposition raised by all those who have put their names to Clauses 64 to 67 not standing part of the Bill. It is with regard to that basic question that I want to say a few words today. Whether the thinking which underlies these provisions is, as some would suggest, positively and consciously mischievous, or merely misconceived and mistaken, I do not know. However, it would be a grave misjudgment if we were to allow them to pass into law. If they are persisted in, I hope that on Report this House will reject them.

What the Government are proposing here is a heresy. With regard to Clause 64, it is a double heresy. Without repeating all that I said at Second Reading, I will try to explain what I mean. The basic heresy here is to treat judicial review—which of course is the title of the whole of this part of the Bill—as a matter generally suitable for legislation at all. Essentially, I suggest that it is not. I seriously wonder if those who are behind these proposals understand the intrinsic nature of this supervisory jurisdiction. Judicial review is no more and no less than the exercise of the courts’ inherent jurisdiction to ensure that the decision-making of the Government, their executive action, remains within the bounds of legal propriety. As the noble and learned Lord, Lord Woolf, explained today, it is judge-made law par excellence; it has been and should remain, essentially, a matter for development and control by the judges themselves. If ever there was an area of the law that for the most part should remain free from legislative interference, it is this. It is difficult, perhaps impossible, to think of any field of law less suitable for legislation, for government diktat as to its future development. Most obviously this is so with regard to provisions which, as here, are designed to essentially cramp and narrow down judges’ powers and discretions. In this field of inherent control of administrative action, it is intended to discourage those who seek to question the legality of governmental decision-making.

In truth, these provisions would make serious inroads into the separation of powers; they would represent a significant shift in the constitutional balance between the judiciary and the Executive. That is the basic heresy that underlies the entirety of Part 4—the supposition that Parliament rather than the judges should decide how the court’s supervisory jurisdiction should be exercised, and its development and control, which are essentially matters of procedure.

Immigration Bill

Debate between Baroness Lister of Burtersett and Lord Brown of Eaton-under-Heywood

Monday 7th April 2014 Lords Chamber

[Baroness Lister of Burtersett (Lab)]

My Lords, I wish to speak to Amendments 56ZA to—

[Lord Brown of Eaton-under-Heywood (CB)]

My Lords, my name is on the amendment so I wish to speak to it.

[Baroness Lister of Burtersett]

I also have an amendment in the group. I shall speak to Amendments 56ZA to 56ZD in this group. They have been tabled with colleagues from the Joint Committee on Human Rights, which recommended them. They also reflect concerns raised in a joint briefing from the Equality and Human Rights Commission, the Northern Ireland Human Rights Commission and the Scottish Human Rights Commission. But I should make it clear first that I would prefer Amendment 56 to be successful so that these amendments would become redundant. Indeed, these amendments reinforce the case for Amendment 56 because they underline how a number of key human rights issues remain unresolved. As the commissions observed, the consequences of having and using the power proposed in Clause 64 have not been carefully and thoroughly considered in respect of the UK’s compliance with its international and domestic human rights law obligations. I fear that this remains the case despite the welcome government Amendment 56A. It should not be the responsibility of an independent reviewer to put right defective legislation once it is in operation.

Amendment 56ZA seeks to ensure that any deprivation of citizenship is consistent with the UK’s obligations under international law. There has been some confusion in our debates so far as to what is meant by this. The JCHR accepts that Clause 64 is compatible with our obligations under UN conventions on statelessness, and not surprisingly the Government have prayed this in aid. But, in doing so, they have conveniently overlooked the JCHR’s concern that exercising the power in relation to a naturalised British citizen while they are abroad carries with it a very great risk of breaching the UK’s international obligations to the state which admitted that British citizen to its territory. These two points were at times conflated during our debates in Committee.

The Government’s legal position is that subject to one very limited exception, there is no general entitlement in international law for a state to deport a non-British citizen to the UK. On the other hand, Professor Goodwin-Gill, an acknowledged authority on the subject and already cited by the noble Lord, Lord Pannick, has said that the Government’s position on general international law is “manifestly incorrect”. This is not the place to go into disputes of legal interpretation, and as a non-lawyer I am certainly not the person to do so, but the point is that if fine legal minds are in dispute about whether it is compatible with international law to denationalise a citizen while they are abroad, surely it makes sense to allow a Joint Committee of both Houses to consider the matter before the proposal goes any further.

At this point I want also to put on the record the JCHR’s disappointment that the Government continue to refuse to inform Parliament about the number of cases in which the power to deprive a person of their citizenship has been exercised while that person is abroad. How can statistics affect national security? When the JCHR put this question to the independent reviewer in a recent public session, he responded by saying:

“My sympathies are very much with your request. If they will not tell them to you, I can only assume that they would tell them at least to a security cleared reviewer, who might in turn be able to make a recommendation that they may be released more widely”.

Will the Minister give a commitment now to make those statistics available to the independent reviewer, who he has said may indeed be given the power of review proposed in Amendment 56A?

Amendment 56ZB requires that the deprivation of citizenship is a necessary and proportionate response to an individual’s conduct. I would have thought that that was a rather basic safeguard for such a draconian power. The committee welcomed the Government’s indication that they would adopt a proportionality approach to deciding whether to exercise the power to deprive someone of their citizenship regardless of whether that would risk statelessness, but we believe that the importance of the concepts of necessity and proportionality as safeguards against arbitrariness are such that they should be in the Bill as conditions which have to be satisfied before the Secretary of State makes a deprivation order. We believe that this could make a real and practical difference in particular cases.

We also noted that it was hard to imagine the circumstances in which such a serious measure could ever be a necessary and proportionate response to a threat to the country’s economic well-being, as has been indicated by the Government. In Committee, the Minister promised to write to me with an example of when this might happen. I do not believe that I have received that example, so I should be grateful if he could provide it today on the record.

Amendment 56ZC would remove the retrospective power contained in the clause. The Government response to the Committee’s objection to this exceptional constitutional step was that a person does not have a legitimate claim of being unaware of the potential consequence of their actions because the person who would come within the scope of this new power would already be liable to being deprived of citizenship under existing powers. The only thing that prevents that now is that such a decision would leave them stateless. Is not that “only thing” rather an important thing? The Government response makes light of the fact that it is the law that currently prevents a person being deprived of citizenship if it made that person stateless. Surely a citizen should be entitled to rely on what the law said at the time of their action? Again, this is an issue that a Joint Committee could usefully address.

Finally, Amendment 56ZD requires that this decision,

“must take into account the best interests of any child affected”.

No doubt the Minister will point to the very welcome Amendment 58 that explicitly writes the Section 55 children’s duty into the Bill. However, Section 55 applies only to children who are in the UK. Thus the duty would not apply if the child affected—who may be a British citizen—happens to be abroad at the time, as is quite possible. A child is a child, wherever that child happens to be. I cannot believe that a Government who have repeatedly reiterated their belief in the best interest principle are really saying that that principle does not apply if the child happens to be out of the country.

I made it clear at the outset that the best way to resolve the issues raised by the JCHR is through the appointment of a Joint Committee as provided for by Amendment 56. Indeed the JCHR itself complained about the lack of public consultation and its detrimental impact on the parliamentary scrutiny of this clause. As the noble Lord, Lord Deben, said in Committee,

“statelessness is one of the most terrible things that can befall anyone”.—[Official Report, 19/3/14; col. 212.]

The Minister has himself spoken of the evil of statelessness. In the words of Dr Matthew Gibney of the Refugee Studies Centre at Oxford University, to be stateless,

“may be a recipe for exclusion, precariousness and general dispossession”.

This will be the first measure adopted by the UK in recent years that would give rise directly to an increase in the number of stateless people in the world condemned to be dispossessed,

“without the right to have rights”,

as Hannah Arendt so memorably put it. This House has a duty to prevent this clause going any further without the full and detailed scrutiny it warrants by a committee of both Houses.

[Lord Brown of Eaton-under-Heywood]

My Lords, that Clause 64 is highly contentious and far from obviously a good idea is perfectly plain. It is plain, indeed, from the Minister’s own recognition in Amendment 56A that a review of its operation will be required even if the provision is enacted. The critical difference between the Government’s amendment and our own is that we say that there should be no such drastic provision enacted as this without its first being subjected to full and proper consideration, and that of course would happen under our amendment. This really is a matter of fundamental principle.

It is true to say, as the Minister noted in Committee, that someone can already be made stateless if deprived of their citizenship having originally obtained naturalisation by fraud. That is perhaps understandable. The person would never have obtained British citizenship in the first place but for having committed fraud. To render stateless someone who has already properly gained citizenship by naturalisation is, I would suggest, quite another matter. Of course one must recognise that the power would arise only in respect of those who had betrayed the trust which we as a nation put in them when we granted them naturalisation and who now themselves create a risk to national security. For my part, I can readily see the temptation to say, “Well, they, too, therefore can properly be made stateless”. This is a temptation which I truly believe that, as a nation proud—and rightly proud—of our human rights record, we should resist.