National Security Bill

Debate between Lord Carlile of Berriew and Lord Pannick

Committee stage
Monday 19th December 2022 Lords Chamber

[Lord Carlile of Berriew (CB)]

My Lords, I rise with some trepidation to disagree with these amendments, for reasons that I will try to give briefly. Amendment 8 and, indeed, all the others in the group are concerned with intellectual property. My entry in the register of interests discloses involvement with a strategy consultancy. In that role, we sometimes make ourselves available for the investigation of imposter frauds, for example. Many of those frauds can be connected with the attempted theft of intellectual property, not just by individuals and companies but by nation states. Some of those nation states are extremely big and powerful and have the capacity to make full use of the secrets they steal to become world leaders in the marketing of such goods.

I would suggest, with respect, that Amendment 8 shows a misunderstanding of the issue by the JCHR. Indeed, the reason why the proposed Clause 2(1)(ca)—Amendment 8—is not needed is that the reasons for this provision are well set out, in subsection (2)(b) in particular. This is for the protection of some very important and extraordinarily valuable intellectual property, which is created in, and in the interests of, this country. Indeed, if one looks at the other amendments, in particular those seeking to amend subsection (2), one has to think for only a moment to see the problem, and that these amendments defy that problem.

Let us take the example of a university computer science or physics laboratory where leading-edge research is being done or, to take something extremely topical, a vaccination laboratory where research is being done that could make a huge difference to humankind in general. As it happens, it could also make an enormous amount of profit for those creating the scientific inventions and, given the advantages they gain through taxation, for the Government.

It seems to me that the provisions in the Bill are absolutely needed to protect those scientists and inventors. There is a stage between the idea—which may come to someone in the bath or shower—and the production of a patent or copyright during which that idea is not protected by registration. These provisions precisely protect that intermediate area between the idea coming into the scientist’s head and its being registered and protected under the intellectual property legislation, which can be quite slow, very expensive and very complex.

So I respectfully suggest to those who have tabled these amendments that they are not needed and that, in fact, the Bill gives the right sort of protection precisely where it is needed, in the clause in question.

[Lord Pannick (CB)]

I respectfully disagree with the noble Lord, Lord Carlile. He may well be able to make a compelling case that there is a mischief that here needs to be addressed, but it is surely nothing whatever to do with national security, which is the subject of the Bill. The noble Baroness, Lady Ludford, is right that it is puzzling that there is no requirement in Clause 2 that it be established that the conduct in question is prejudicial to the safety or interests of the United Kingdom. The desirability of improving intellectual property law is really not an appropriate subject for a Bill of this nature.

Moreover, the noble Lord, Lord Carlile, says that if one looks at Clause 2(2)(b), that paragraph ensures the protection. I remind the Committee that all that Clause 2(2)(b) does is define a “trade secret” as information that

“has actual or potential industrial, economic or commercial value which would be … adversely affected if it became generally known”.

That is the loosest possible definition of a commercial trade secret. It is impossible to understand why matters of that sort should be dealt with in the Bill; indeed, that information may be enjoyed or owned by a foreign individual or company.

Trade secret law is very well developed. It includes remedies for damages and for injunctions. To include Clause 2 in the Bill would attract not just the considerable criminal penalties that the noble Baroness, Lady Ludford, referred to, it would invoke Clause 16, on the criminality of preparatory acts—

[Lord Davies of Gower (Con)]

My Lords, if this is an intervention, could the noble Lord make his point, please?

[Lord Carlile of Berriew (CB)]

The noble Lord asked to make an intervention, which is why I allowed him to, and I regret that he used the procedure of the House to make a speech. He will be free to make a speech if he wishes to do so.

[Lord Pannick (CB)]

My Lords—

[Lord Carlile of Berriew (CB)]

No, I am not letting the noble Lord in now. I am sure he will make a speech if he wishes to in a moment.

I will respond to the noble Lord’s intervention, if I may be allowed a moment to do so. His intervention completely misses the point. He seeks to impose upon us his definition of national security. I do not share his definition of national security. If there is theft by a major state overseas of important intellectual property that has yet to be registered and which could make a huge difference to this country, in my view that falls well within the definition of national security. Indeed, that is why the Government have chosen to include economic issues in the broad definition of national security. So I respect my noble friend’s intervention but I disagree with it. I shall listen very carefully to any speech that he makes—after I have sat down.

[Lord Pannick (CB)]

I am very sorry. I apologise to the noble Lord and the Committee; I thought he had sat down, and I was not the only Member of the House who thought so.

I have made my speech. The only point that I was going to add was that if we retain Clause 2, it includes the preparatory acts under Clause 16 and the powers of search under Clause 21. For all those reasons, I think Clause 2 should not be included in the Bill.

[Lord Wallace of Saltaire (LD)]

My Lords, the noble Lord obviously did not know that the noble Lord, Lord Carlile, had not sat down, but he perhaps ought reasonably to have known.

This exchange has focused my mind much more on the following question: part of the grey zone that we are dealing with is whether or not economic security is now part of national security. To a considerable extent, it is. I have not yet fully understood the relationship between the Bill and the National Security and Investment Act, passed last year, which deals with, among other things, some aspects of intellectual property. There may well be—but I am not sufficiently expert on it—a degree of overlap between that Act and what is proposed here.

Police, Crime, Sentencing and Courts Bill

Debate between Lord Carlile of Berriew and Lord Pannick

Lords Hansard - Part 2 & Lords Hansard - part two & Report stage
Monday 10th January 2022 Lords Chamber

[Lord Pannick (CB)]

My Lords, Amendment 97CA is in my name and those of the noble and learned Lord, Lord Judge, and the noble Lord, Lord Marks. Unfortunately, the noble and learned Lord, Lord Judge, cannot be in his place this evening because he has been attending a funeral.

Amendment 97CA would remove from the Bill the power in Clause 170 for a court to give a direction that the jury can participate in a criminal trial remotely; that is, in a different location to the judge, counsel and witnesses so long as all members of the jury are in the same place. Jury trial is, of course, one of the cornerstones of our criminal justice system—whether you approve or disapprove of the Bristol jury’s decision to acquit the defendants of criminal damage to the statue of Edward Colston. We need to consider very carefully indeed proposals to amend the way in which the jury performs its functions.

I share the concerns about this proposal that have been expressed by the Bar Council and the Law Society. They say that the success of a jury trial depends in large part on a good working relationship of trust and confidence between judge and jury. The jury needs to be attentive and mindful of its onerous responsibilities; the judge needs to watch the jury to ensure that its interests are protected and it is properly performing its responsibilities. Counsel—both prosecution and defence counsel—need to engage with the jury during the trial. All this is so much harder to achieve through a video screen—indeed, noble Lords will be aware of that from when they have participated in parliamentary proceedings through a video screen over the last two years.

This proposed power requires a strong justification. I listened carefully—I always listen carefully—to what the noble Lord, Lord Wolfson, said in support of this power in Committee and indeed in discussions that I have had with him since, for which I am very grateful. The Minister concedes—indeed, he positively asserts—that this Government have no plan to encourage the use of remote juries. Indeed, they have had no such plans in the nearly two years since Covid-19 began to blight our lives. What the Minister says is that it will be good for Ministers to have this power, just in case it proves useful at some stage in the future. I suggest to noble Lords that it is a very bad legislative practice to confer broad powers on Ministers, particularly powers as controversial as these, just in case they might prove useful at some stage in the future.

The Minister will no doubt give assurances to the House about whether and when these powers might be used. The insuperable difficulty with legislating on such a basis is that the noble Lord, Lord Wolfson, cannot bind his successors in office, who may well have different principles and different policies.

I say to the House that these proposed powers, if ever used, would pose a real threat to the effective administration of justice. There is no current need for them.

[Lord Carlile of Berriew (CB)]

My Lords, I strongly support the submissions made by the noble Lord, Lord Ponsonby, in relation to Amendment 97C. In doing so, perhaps I can give a small insight as someone who has conducted hundreds of jury trials, some of them involving young people—often very naive young people who are in an enormous amount of trouble.

I feel it necessary to say something to the House about the interaction between counsel and the young client. Typically during the course of such a trial, and in my experience this happens more with children on trial than with adults on trial, either, if one is lucky enough to have one there, one asks one’s instructing solicitor to have a word with the client in the dock on some evidence that has just been given, or—if, as is common now, there is no instructing solicitor there—counsel just walks a couple of rows behind to the front of the dock, takes instructions from his or her client about a factual proposition that has just been made and then continues or commences a cross-examination based on the instructions that have just been taken. In other words, there is a dynamic, living, ongoing 24/7 interaction between the advocate and the advocate’s client.

In the last nearly two years we have all been through the process of conducting virtual meetings. In most respects that has worked very well, but, since we have had the experience of going back into real meetings—on and off, admittedly—we have rediscovered the importance of interaction on the details that occur during a discourse. In my view, it could prove very damaging and delaying in trials to have to have that sort of discourse with a client by asking the judge to turn off the devices so that a private consultation can take place. That could look very odd to a jury, as compared to a quick word two rows behind. I therefore ask the Minister to reflect upon the dynamics of a real trial. I should add that not only have I conducted a lot of trials but for 28 years I was a part-time judge. As a judge I have conducted a lot of jury trials, and the same points arise from the judge’s position.

So far as the amendment from the noble Lord, Lord Pannick, is concerned, I agree with him for a similar but different reason. It is based on a relationship, the relationship between the judge and the jury. It is absolutely commonplace—it happens every hour of every day—for the judge to make some kind of contact with the jury. It may be eye contact; it may be an aside; it may be a little joke. You would not believe how much juries laugh at judges’ jokes; judges make jokes and get far greater laughs than any comedian I have ever seen. All this is part of the process of creating a living instrument through a trial that really works on a human basis. If there are to be any jury trials conducted with the jury in a different place from the judge, that must be most exceptional. If the judge and jury were in the same place, it may be that—and this would still have to be exceptional—the judge might come to a factual decision that a fair trial could be held, but it would be a very rare instance where that would work.

If I may put it as high as this, I advise the Government not to go down this road. In my view, it has the danger of disruption, increasing appeals and actually destroying the very essence of the holy grail, as it were, that is part of our criminal justice system: the jury trial. Part of that essence is the relationship between the judge and the jury, and that really cannot be conducted remotely.

Counter-Terrorism and Border Security Bill

Debate between Lord Carlile of Berriew and Lord Pannick

Committee: 3rd sitting (Hansard): House of Lords
Monday 12th November 2018 Lords Chamber

[Lord Carlile of Berriew]

My Lords, I too support the amendment moved by my noble friend Lord Anderson. There is no known system at the moment for reviewing the proscription list. The Peasants’ Revolt would still be proscribed under the current absence of a system, and that is just unacceptable. I could live with it if the Minister were to make a commitment from the Dispatch Box to introduce a system of review of the proscription list. Let us not forget that if a deproscription is found to be mistaken, there can be a reproscription of that organisation in any event, so almost nothing is lost by what is proposed.

[Lord Pannick]

My Lords, I, too, support the amendment. I find it shocking that the Home Office should be continuing the proscription of organisations which it recognises do not satisfy the statutory criteria. I have only one suggestion to those who tabled the amendment for their consideration for Report. In new paragraph (d), should it not require the Minister to publish not simply each such decision but the basic reasons for such a decision? That would add a further level of accountability and discipline of the Secretary of State in this context.

Counter-Terrorism and Security Bill

Debate between Lord Carlile of Berriew and Lord Pannick

Wednesday 28th January 2015 Lords Chamber

[Lord Carlile of Berriew]

My Lords, I will add a few words of support for what has been said by the noble Lord, Lord Pannick, and my noble friend. I feel very grateful to my noble friend the Minister for taking the initiative in this group of amendments. David Anderson has set out very clearly and correctly the additional support that he needs and the programme of work that it would be in the public interest to have in his hands. The Minister seems to agree, provisionally at least, with David Anderson’s representations as articulated by the noble Lord, Lord Pannick, in particular, and I feel that we can now await next week with some confidence.

[Lord Pannick]

My Lords, I beg leave to withdraw the amendment.

--- Later in debate ---

[Lord Pannick]

From a modest height, I am very concerned that Clause 36 will undermine the essential role of the independent reviewer. The current holder of the post, David Anderson, and his predecessor, the noble Lord, Lord Carlile of Berriew, have achieved a remarkable degree of success. They have commanded the confidence of the public and of the NGOs that have expertise in this area. They have also commanded the confidence of the intelligence services and the Government. To command the confidence and, indeed, the respect of all these different constituencies is a deeply impressive achievement. However, that confidence and respect have necessarily depended on the personal independence, integrity and judgment of those who have performed this role. The job cannot be done by a committee. The clause is silent on whether the independent reviewer will share all the secret information with the board. If so, there is a real danger that he will not, in practice, be given such free access to confidential information in the future. If he is not to share the information with the board, I cannot see how it can do much to advise and assist him.

My other concern is that Mr Anderson, as has already been mentioned, has limited time to devote to the primary task of reviewing counterterrorism legislation. The very last thing that he needs is a committee structure that will inevitably use up his finite time which would be far better spent on the front line on essential activities of reviewing the operation of the relevant legislation. For all the reasons that have already been given and for these reasons, Clause 36, certainly in its current form, is a very bad idea. I hope that the Government will fundamentally reconsider it in the limited time before Report next Wednesday.

[Lord Carlile of Berriew]

My Lords, I absolutely agree with what has just been said by the noble Lord, Lord Pannick, and the reasoning behind what he said. However, I recognise that the Government are determined to pass something like Clause 36. In looking at Clause 36(1), if there is to be some kind of board to provide advice and assistance to the Independent Reviewer of Terrorism Legislation, then so be it. But the only part of Clause 36 that has been really thought through is subsection (1), which merely gives the power to establish the board. It is important to be fair to the Minister and to recognise that the Government are not setting up the board by this provision, which enables the creation of regulations only if such regulations are made to set up the board.

I have a few issues that need to briefly be considered before we deal with the principal question of whether the clause should remain in its present form. I absolutely agree with the noble Baroness, Lady Smith, that the title is inappropriate. If the title were appropriate, Mr Anderson, surely, would be retitled the Privacy and Civil Liberties Reviewer. But of course Mr Anderson would not accept that because that is not what he is. It is completely illogical to have an Independent Reviewer of Terrorism Legislation and a board assisting him entitled the Privacy and Civil Liberties Board, whose prime aims are neither privacy nor civil liberties. I beseech the Minister, who is a sensible, realistic and charming man—if I may say so—to recognise that what is in the tin should be described accurately on the tin. Many who are involved in this field of work have been perplexed by this title; apparently it has some attraction to advertising and branding people.

I would like to hear my noble friend say that yes, the Government do want to have a board, albeit possibly under another title, and that it can be formed—that is, regulations could form it. But I ask my noble friend to recognise that a great deal of work is still to be done. That work cannot be done while this Bill is before this Session of Parliament. I ask him to recognise that the work will take many months and possibly even longer. It may be that the regulations will never be made because we have not yet reached the point at which we are ready to describe a board that would have some utility in the life of the Independent Reviewer of Terrorism Legislation.

Perhaps I may close my evening here with a couple of words of Latin. I would say to my noble friend: please, festina lente.

Counter-Terrorism and Security Bill

Debate between Lord Carlile of Berriew and Lord Pannick

Tuesday 20th January 2015 Lords Chamber

[Lord Carlile of Berriew (LD)]

My Lords, I do not understand the two-year period contained in these amendments. The issue which we are dealing with and which is covered in this clause is, unfortunately, going to last for more than two years. Does the Minister agree that having a two-year sunset clause—even if there were to be a sunset clause at all—would send out a completely incorrect message to those who are minded to go abroad and participate in jihad? We have to show some enduring determination over this issue.

My second concern is that these amendments are too prescriptive for the work of the Independent Reviewer of Terrorism Legislation. Can the Minister confirm that the independent reviewer is able to look at all provisions relating to counterterrorism legislation? Surely it is right that the independent reviewer should be able to focus on those issues which are revealed during the course of a given year as causing concern and report on those, rather than being required to report on too many specific issues? We heard at Second Reading that the current independent reviewer is doing something like 180 days per year. When I started as independent reviewer in 2001, just after 9/11, I was doing 40 days per year. By the time I finished, in early 2011, I was doing 140 days per year. Prioritising the independent reviewer’s work should surely be left to that person.

My final point is this. A great deal of respect has rightly been paid to the current independent reviewer. If the independent reviewer highlights a provision that is not working, surely that is at least as powerful as any sunset clause ever could be?

[Lord Pannick (CB)]

My Lords, I will not comment on the independent reviewer because, as I understand it, we are not dealing with Amendment 3. We will come to that. I support Amendment 2 and Amendment 55, which are in this group.

The noble Lord, Lord Rosser, will say if I am wrong, but my understanding of the reason for having a sunset clause with a particular period of time is that there are concerns, which I think are understandable, that the new powers for seizure of passports and for temporary exclusion may raise problems about the practicalities and consequences of these powers. It therefore seems entirely appropriate that, after a period of time, Parliament should take a hard look again at the impact of these powers and consider whether or not they are justifiable and having beneficial consequences. I am satisfied that it is right and appropriate to introduce these powers at this time. However, along with many others, I would be reassured about the diminution in civil liberties which is involved if we stated on the face of the Bill that Parliament will look again at this matter after a defined period. If two years is too short, then we can make it three or four years.

Assisted Dying Bill [HL]

Debate between Lord Carlile of Berriew and Lord Pannick

Friday 16th January 2015 Lords Chamber

[Lord Carlile of Berriew]

I am grateful to the noble Lord, Lord Alton. I see that I have spoken for 12 minutes and want to bring my remarks to a close.

[Lord Pannick]

My Lords—

[Lord Carlile of Berriew]

Well, I would bring my remarks to a close, but my admiration for the noble Lord who has just stood up is almost unallayed, and I shall therefore give way.

[Lord Pannick]

I am grateful. I just want to ask for clarification. The noble Lord’s Amendment 13, as I understand it, would specify the identity of the doctors who may make the relevant declaration for Clause 2 purposes. However, what if those doctors, for whatever reason, are opposed to the Bill, or Act of Parliament, and do not wish to participate? Should the patient then be prevented from taking advantage of this legislation?

[Lord Carlile of Berriew]

Uncharacteristically, the noble Lord makes an entirely false point. The first response is that my amendment does not specify any doctor. The second response is that for those who are registered with general practitioners—I guess, the vast majority of the population—there are almost no single-handed practitioners left in this country. Therefore, within the group of general practitioners with whom the patient is registered—the right word is “registered”—for this purpose, there will be a choice of doctors. In any event, the noble Lord knows well that it is intended that there should be a conscience clause placed in this legislation, and there will be doctors who will simply, out of conscience, not certify that patients have the diagnosis required for the gateway.

Assisted Dying Bill [HL]

Debate between Lord Carlile of Berriew and Lord Pannick

Friday 7th November 2014 Lords Chamber

[Lord Pannick]

I am grateful to the noble Lord, but my position is exactly the same as that of the noble and learned Lord, Lord Falconer. The amendment is not legalistic. It says that the judge of the Family Division of the High Court should ask himself or herself whether the person concerned has made,

“a voluntary, clear, settled and informed”,

decision. They seem the right criteria. With respect to the noble Lord, Lord Carlile, I have not heard any convincing argument as to why the criteria should be more onerous—that the person concerned should be able to proceed along this route only if a further criterion is satisfied. Indeed, the addition of further criteria seems contrary to the valuable purposes of the Bill: to give effect to the autonomy of the individual.

[Lord Carlile of Berriew]

Does the noble Lord not think on reflection that Report stage on a Bill of this kind is an extremely important stage for your Lordships’ House? Does he not think that it would be far better for your Lordships to discuss and reflect so that when we come to Report we are able to make a considered decision in which even those of us who feel strongly about these issues will understand the essential need to be prepared to compromise, through a proper discussion reflective on the debate of the past two hours? In that context, I am certainly not going to vote on any of these amendments either way. I invite the noble Lord to reflect for one moment on what has just been said. I think that others may well agree.

[Lord Pannick]

Of course I reflect on what the noble Lord says, not least because I have great admiration and respect for him. However, he will know, as will as any other Member of this House, that we often vote on issues of principle in Committee. If there were an issue that could be resolved by further analysis and debate then I would see the force of the point.

Costs in Criminal Cases (Legal Costs) (Exceptions) Regulations 2013

Debate between Lord Carlile of Berriew and Lord Pannick

Monday 20th January 2014 Lords Chamber

[Lord Pannick (CB)]

My Lords, I add my welcome to the noble Lord, Lord Faulks, to the government team. He brings to this role expert legal knowledge, very considerable practical experience, excellent judgment and a concern to promote the values of the legal system, qualities that have not noticeably been displayed over the past three and half years by those responsible for making decisions in the Ministry of Justice. I hope that the Secretary of State will listen to the noble Lord’s advice and take advantage of the expert legal advice and assistance that he will be providing—indeed will be providing, as I understand it, in the best traditions of the Bar, on a pro bono basis.

I am very grateful to the noble Lord, Lord Bach, for promoting this debate. I share his concerns about the exclusion of borderline cases from the scope of legal aid. The concern I have is that many of the leading cases in which the law has been developed in the public interest over the past few years have involved claims which, because of the disputed legal principles, could not have been said to have a 50% chance of success. The noble Lord, Lord Bach, mentioned examples of such legal aid cases, including one in which I acted for the claimants. That was the case of Debbie Purdy, which was the subject of the last judgment of the Appellate Committee of your Lordships’ House before the creation of the Supreme Court in 2009. This was a case in which judgments were delivered by two noble and learned Lords in their places today: the noble and learned Lords, Lord Brown of Eaton-under-Heywood and Lord Hope of Craighead,

The Appellate Committee held that that the DPP had a duty to publish guidelines about the circumstances in which he would prosecute for assisting a suicide. Those guidelines have made a valuable contribution to justice in a difficult area of the law. It could not have sensibly been said that the claim brought by Debbie Purdy was other than borderline. Legal aid was accordingly granted under the law at the time. When these regulations are implemented, as I think they now are, legal aid will simply be unavailable for such a case.

For legal aid to be able to fund such cases serves the public interest. The Minister told the House today that the removal of borderline cases from the scope of legal aid will save £1 million a year. Such a modest saving cannot begin to justify the damage that this change will do to the ability to develop the common law. The Minister’s other point was that taxpayers’ money should not be spent on cases that a private-paying citizen of reasonable means would not wish to pursue. The defect in that reasoning is that a private-paying citizen may well wish to pursue a case that has only a 30% or 40% chance of success if it raises an issue of enormous importance to them.

There is a further point in answer to this defence of this change. It is a point that was made by Richard Drabble QC in his excellent response to the consultation on this issue. He pointed out that when the Government respond to judicial reviews in cases such as that of Debbie Purdy they do not simply ask themselves whether they have a 50% chance of success and, if not, decline to be represented in the court proceedings; the Government very properly take account of the importance and complexity of the case and often fund a defence even though their legal advisers cannot say that there is a 50% chance of success. These are not the cases mentioned by the noble Lord, Lord Faulks, where further investigation may provide an answer; they are cases where it is inherent in the nature of the case that they are borderline and you cannot say that there is a 50% chance of success.

Why should the legal aid scheme adopt a different and narrower approach to legal aid for claimants than the Government adopt for themselves in deciding when and how to resist judicial review claims? The Government’s reasoning leaves entirely out of account the nature of the cases that will now be excluded from legal aid and the public interest in ensuring that the law is determined and applied only after proper legal argument on both sides. For these reasons, I very much regret these amendment regulations and I hope that the Minister, if he is unable to say so today, will be able to advise the Secretary of State that further thought needs to be given to this important matter.

[Lord Carlile of Berriew (LD)]

My Lords, I join the noble Lords, Lord Bach and Lord Pannick, on two grounds. The first is the generous but completely justified welcome that has been given to the arrival of my noble friend Lord Faulks on the government Front Bench. Indeed, I am encouraged that he has a record of questioning the reduction of legal aid, particularly in criminal cases. I urge him to do another piece of pro bono work, a tutorial for his ministerial colleague in another place, Mr Shailesh Vara, on understanding simple statistics and understanding something about legal aid.

The second ground on which I agree entirely with those who have already spoken is in my support of the regret Motion introduced very clearly by the noble Lord, Lord Bach, and illustrated with customary cogency by the noble Lord, Lord Pannick. However, I want to turn to the criminal regulation. I do not support a criminal regulation that means that somebody who has perfectly reasonably obtained the advice of a good solicitor and senior counsel can only, without exception, recover costs at legal aid rates if he wins the case. It may be best if I give a real illustration.

A retired butcher of about 70 years old was charged with some very serious sexual offences, including rape, against a young girl of about 12 years old who was the daughter or granddaughter of a neighbour. He instructed a good solicitor. The good solicitor said to him that he could instruct counsel on legal aid but his preference would be to instruct more senior counsel, leading counsel, but that would not be covered by legal aid. Not surprisingly, the 70 year-old retired butcher asked for advice as to his prospects if he took either part of the respective advice. He was advised by the solicitor, perfectly reasonably, that his best prospects were to have the more experienced counsel from the very beginning, so leading counsel was instructed.

As it turned out, in the event, there were a number of complex legal points and some factual issues. After the matter was dealt with with a good deal of care by the solicitor and leading counsel, the case went to the Crown Court where it was dropped at the courtroom door. One of the reasons why it was dropped was that it transpired that he could not have committed one of the most important offences alleged against him because he was out of the country at the time, an issue which involved very complicated inquiry, including issues of the admissibility of evidence obtained from abroad. Thus, he avoided a trial and a potential sentence of upward of 10 years’ imprisonment and he was able to return to his family and home. He had paid for the advice by borrowing money from his grown-up children and by mortgaging his home.

Before your Lordships think about six-figure sums for the fees involved, they were nothing like so high. It was well understood by the solicitor, who drove a hard bargain, and by counsel, who knew perfectly well that their fees were subject to assessment if they were too high, that reasonable fees would have to be charged, and they were. Total costs in the case amounted to a middling five-figure sum. He applied for his costs before the Crown Court judge, before whom the case was dropped—accepting an acquittal, by the way—and the judge thought it entirely reasonable that he had obtained the advice of leading counsel and a good solicitor and he was awarded his costs out of central funds. What is unreasonable or unjust about that? He acted on legal advice, what he did was perfectly reasonable, a good result was obtained and the costs of a trial were avoided, which would probably have been higher than what was paid out of central funds to the solicitor and leading counsel.

What is proposed in criminal cases now is that someone in that position will be able to recover at best only a half, probably a third, of those costs. The retired butcher, therefore, having been acquitted in a prosecution brought unjustly, would have been some tens of thousands out of pocket. Do we really want to countenance a criminal justice system like that? I do not.

Marriage (Same Sex Couples) Bill

Debate between Lord Carlile of Berriew and Lord Pannick

Wednesday 10th July 2013 Lords Chamber

[Lord Carlile of Berriew]

My Lords, listening to the little exchange that has taken place in the past few minutes between two distinguished noble friends who are members of the Conservative Party led me to think about whether an alliance between UKIP and the Tory party—which, of course, has been mooted—might be regarded as a same-sex marriage.

Leaving aside that little bit of private grief in the Conservative Party, I agree with every word that has been uttered by my noble friend Lord Fowler and will not repeat it because I could not say it as well as he. Like many people in this country, I have great admiration for the noble Lord, Lord Singh. We hear him on the public radio from time to time, and he utters very wise words—mostly. However, I say to the noble Lord that, regrettably, on this occasion he has let us, and himself, down. I invite him to reflect upon whether the proposed amendment is a proper use of the debating procedure of your Lordships’ House; what he said sounded to me awfully like a Second Reading speech.

In order to ascertain whether that would be a justified comment, I spent some little time looking at the noble Lord’s biography and bibliography to see what other issues that he has suggested would be suitable for a referendum because they have an ethical or moral component. There are none: this is special pleading. I urge your Lordships to reject the amendment on that simple basis.

[Lord Pannick]

My Lords, perhaps I may remind noble Lords that the Constitution Committee, of which I was then a member, recently produced a report on referendums. We said that there are significant drawbacks to the use of referendums, essentially for the reasons given by the noble Lord, Lord Fowler. Our advice to the House was that they should be confined to fundamental constitutional issues. This is not a fundamental constitutional issue. I say to the noble Lord, Lord Waddington, that helping out the Prime Minister, if he needs help to get off any hook, is not a fundamental constitutional issue.

Justice and Security Bill [HL]

Debate between Lord Carlile of Berriew and Lord Pannick

Tuesday 17th July 2012 Lords Chamber

[Lord Pannick]

My Lords, I share the concerns of the noble Lord, Lord Dubs, about the fundamental unfairness of the procedure by which the judge decides the case without one party having access to vital material and about the public perception of a decision made on that basis. However, it seems to me that the fundamental unfairness, and the perception of unfairness, is not caused by the identity of the judge or the fact that there is only one judge sitting. It does not seem to me that the fundamental unfairness, or the perception of it, will be diminished at all if the judge sits not alone but with two county court judges, four county court judges, or with two or four retired judges of the High Court, Court of Appeal or Supreme Court. That is not the cause of the fundamental unfairness.

Nor, with great respect, do I share the concern of the noble and learned Lord, Lord Lloyd of Berwick, that there is some onerous obligation on the judge who hears these cases alone. Judges are used to hearing difficult questions and deciding them. Judges decide, and have decided, similar issues in the context of control orders and they are now deciding them in the context of TPIMs. Of course, there are very considerable cost implications of having five judges instead of one whenever one has secret hearings and it will cause very considerable delay in these hearings. So although I understand the concerns, I do not think that this is a solution.

[Lord Carlile of Berriew]

My Lords, I fully understand the concerns that have been expressed by the noble Lord, Lord Dubs, however, for the reasons principally given by my noble friend Lord Faulks, I disagree with this proposal. It does scant justice to the judges who have shown great independence in the control order and TPIM cases that the noble Lord, Lord Pannick, mentioned. I do not understand the substance of this proposed amendment to be a complaint made by the special advocates at all. My view is that the way in which judges are trained and apply themselves to their cases does not require an elaborate amendment of this kind.

Justice and Security Bill [HL]

Debate between Lord Carlile of Berriew and Lord Pannick

Wednesday 11th July 2012 Lords Chamber

[Lord Pannick]

My Lords, I have added my name to Amendments 39 and 40. I am very grateful to the noble Lord, Lord Faulks, for introducing the amendment. I recognise that there may well be a need in some exceptional cases for a CMP or closed material procedure, but it seems to me that this should be a last rather than a first resort. My answer to the question put by the noble Lord, Lord Carlile, is that PII certainly maintains secrecy just as effectively as a closed material procedure. If it did not, then it would not be a satisfactory alternative. The advantage of PII is that it does not enable the judge in determining the substance of the case—a point made by the noble Lord, Lord Thomas of Gresford—to rely on material that is seen by only one party and not by the other party. The evidence that is admitted is seen by both sides in the case. My answer to the question posed by the noble and learned Lord, Lord Falconer of Thoroton, is this. If, as a result of the PII—

[Lord Carlile of Berriew]

I apologise for intervening again but this seems to be a very important point. I am not sure that the noble Lord, despite all his great distinction, is right in the answer he has just given.

In criminal cases, when a PII application is made, generally the defence knows absolutely nothing about that application and has seen absolutely no documentation underlying it. I have relevant professional experience in criminal cases; I do not have any relevant experience in civil cases so this in a spirit of genuine inquiry. Is the noble Lord saying that in civil cases where a PII application is made, the claimant will have seen the document for which the PII application has been made? If not, we have a problem, do we not?

--- Later in debate ---

[Lord Carlile of Berriew]

I am sympathetic to any amendment which will improve the justice of decisions made. I am broadly sympathetic to Amendment 62. When I was independent reviewer of terrorism legislation, I frequently expressed the view that there should be stronger discussion between special advocates and those whose interests they represent. I remain of the view that the security services are over-sensitive, if not hyper-sensitive, about such communications. The short answer to my noble friend is yes.

I therefore invite the Minister to assist this Committee, particularly the non-lawyers here, by answering the fundamental question as to whether the Government have chosen a fairer procedure. Surely that is all we are trying to achieve. I say “that is all” but, if we achieve it, it will be a noble achievement indeed.

[Lord Pannick]

Will the noble Lord assist the Committee with why he thinks that so many special advocates, with all their experience, regard closed procedures as so fundamentally unfair?

[Lord Carlile of Berriew]

They have spoken for themselves and I have read what they have said. The answer is that I do not know. I simply do not agree with them. Each special advocate represents his or her own experience. No special advocate does more than one case at a time. If I have an advantage in this, it is one of observation over a period of years of the work of the body of special advocates.

I say to the noble Lord, Lord Pannick, that there are considerable improvements that can be made in the way in which special advocates receive and carry out their instructions. However, there is no doubt that they have been more effective than they diffidently appear to accept.

Legal Aid, Sentencing and Punishment of Offenders Bill

Debate between Lord Carlile of Berriew and Lord Pannick

Tuesday 24th January 2012 Lords Chamber

[Lord Carlile of Berriew]

My Lords, I too support the amendment. When my noble and learned friend responds to this debate, it would be helpful if he would explain the relationship between the types of issues covered in the amendment and Clause 9. If he and the Government believe that there is nothing in the amendment that is not in fact or in law covered by Clause 9, it would be helpful if he would say so. I respectfully suggest that it would be better for these very important decisions to be made by judges and that we should avoid a potentially unnecessary layer of satellite litigation through judicial review of decisions of the director of civil legal aid. I suggest to my noble and learned friend that it is better that judges rather than an official determine whether there should be legal aid.

I remind my noble and learned friend that the paradigm of the English claimant is the man on the Clapham omnibus, who may be coming to court with a very ordinary dispute. My noble and learned friend will recall, as a distinguished Scots lawyer, that one of the most important cases ever decided in the civil law in the United Kingdom related to a snail in a Scottish ginger beer bottle. Another of the most important cases in the common law arose from a carbolic smoke ball. One of the most important, if not the most important, cases in administrative law arose from the administrative arrangements for a cinema—a picture house—in Wednesbury in the Midlands. More recently, an extremely important case that led to a change in policy arose from a disabled person seeking guidance on her end-of-life care. That last one might have passed the test which I understand to be applied by Clause 9, but I believe that all four of those cases should in appropriate, means-tested circumstances be the recipients of legal aid and that the means test should be applied rather lightly if the outcome of the case has great importance in setting new precedent and our understanding of the law. In brief, I suggest to my noble and learned friend that the court is better placed than the director of civil legal aid to determine the importance of an issue in the panoply of precedent that the courts set.

[Lord Pannick]

My Lords, I, too, support the amendment for all the reasons set out by the noble Lords, Lord Thomas of Gresford and Lord Carlile of Berriew. I add one further factor. The criteria set out in this amendment are so tightly defined that it is highly probable that in any case falling within those criteria, where one party is not legally represented, the tribunal or the court—particularly the Appeal Court—would consider it wholly inappropriate to determine the issue before it without requesting the Attorney-General to appoint what used to be known as an amicus curiae, now friend of the court, at public expense. It is much more desirable, with that public expense, for the individual to be represented rather than to have his or her case presented through a friend of the court. Again, the saving is entirely illusory.

Terrorism Prevention and Investigation Measures Bill

Debate between Lord Carlile of Berriew and Lord Pannick

Wednesday 19th October 2011 Lords Chamber

[Lord Pannick]

I am coming to that, but let us at the outset recognise the impact of a relocation measure. If one is going to adopt a measure or power of this sort, one needs to recognise the striking impact that it has on the spouse and the children. A measure that amounts to internal exile of a person needs a compelling justification.

[Lord Carlile of Berriew]

I know that the noble Lord eats legal authorities for breakfast, probably literally sometimes. I would just like him to give his comments on the cogent judgment and reasoning of Mr Justice Simon in CD, the case to which I referred, in which the judge took the matters the noble Lord has just mentioned into account and reached a considered conclusion. Does he say that the judge reached the wrong conclusion, giving undue proportion to some of the factors he was weighing?

[Lord Pannick]

Of course, the learned judge was considering the exercise of the powers that are contained under the control order regime. The Committee and the House have to consider what is a fair balance—this is the test that the Minister rightly has repeatedly propounded—between national security and the liberty of the individual.

[Lord Carlile of Berriew]

I promise not to intervene on the noble Lord’s speech again but he is ducking the question. Does he not accept that Mr Justice Simon in that case, having weighed up the facts, came to the conclusion that the safety of the state and of the public was better protected by relocation and that it was proportionate to the interests of CD? If so, should we not keep the situation as it was then?

[Lord Pannick]

The noble Lord can intervene as many times as he likes. I welcome his interventions. My answer to his point is twofold. We can always add more and more intrusive measures and protect ourselves more effectively from the perspective of national security. The question is: what is a fair balance? I am assuming that the Government, not just concerned about a particular individual case but looking at these issues as a whole, have concluded that relocation would undermine the fair balance because of its particularly intrusive nature and that the combination of the measures contained in the TPIM and the surveillance measures that can always be imposed on an individual who is not relocated will effectively protect the public. It is true that there is a financial cost, which is the point made by the noble Lord, Lord Hunt. Does the noble Lord wish to add to that?

Police Reform and Social Responsibility Bill

Debate between Lord Carlile of Berriew and Lord Pannick

Thursday 16th June 2011 Lords Chamber

[Lord Carlile of Berriew]

My Lords, we are proceeding in the usual orderly way of your Lordships’ House and there remain two amendments that have not yet been spoken to. The first of those is the new clause proposed in Amendment 246, which is in my name and those of other noble Lords, who have been very helpful in our approach to it. Then there is an amendment to that new clause in the name of my noble friend Lady Tonge. I say at the outset that I accept entirely her amendment to my proposed new clause. It seems eminently sensible. The proposed new clause is about giving an account to Parliament of the progress in war crimes cases. I hope the House will indulge me for a few minutes in speaking to this. I shall then say a few words about the matters that have been discussed hitherto. However, unlike my noble friend Lord Thomas of Gresford, I shall not give further details of what was designated by him to be a private conversation that took place earlier in the Bishops’ Bar.

There is a specialist war crimes team within the UK Border Agency, which is a very good thing. However, unlike many European and other countries, there is no specialist war crimes unit in either the police or the prosecution services. Other noble Lords and I were involved in all-party and non-party negotiations with the previous Government to expand the universal jurisdiction. Those negotiations were successful. However, they were successful subject to the insistence of the previous Government that what is in Clause 154 should be inserted into the law. All those involved in those negotiations accepted that at the time as being a realistic argument.

As I have said, there is no specialist war crimes unit in either the police or the prosecution service in any part of the United Kingdom. Instead, in England and Wales responsibility for war crimes is shared by SO15—Counter Terrorism Command in the Metropolitan Police—and the equivalent section, headed by Sue Hemming OBE, in the Crown Prosecution Service. The police team responsible for war crimes is also tasked with counterterrorism policing relating to dissident republican groups from Ireland. It therefore has an enormous amount of work to do and deals with a fast-moving scene, irrespective of war crimes.

What does the proposed new clause seek to do? It requires the Government to report annually on all legal action taken against suspected war criminals in the United Kingdom, and on the assistance given to other states and international criminal tribunals. I should argue to your Lordships that it is entirely reasonable and proper that the public and Parliament should be able to take stock of progress in war crimes on a regular basis. Taking stock in that way—having accountability of that kind—will ensure that the Government bestow on the relevant police section the resources that are needed to prosecute war crimes. There have been no prosecutions for war crimes since the prosecution in 2005 of an Afghan warlord who was found living in south London. However, a Peruvian was arrested in Tiverton in Devon in March 2011. He is accused of torture and crimes against humanity for his alleged role in more than 100 killings as a member of a death squad, and is currently on police bail. We hope to see some progress in that case within, of course, the usual legal proceedings.

It is remarkable, given the number of war criminals who are believed to be living in the United Kingdom, that there have been no other prosecutions since 2005. It suggests that insufficient resources are being given to the task. After all, one should bear in mind that, since 2005, the UK Border Agency has taken immigration action against 360 suspected war criminals, while the Metropolitan Police is currently pursuing 29 viable lines of inquiry. The 360 suspects come from a number of countries, including Iraq, Afghanistan and the former Yugoslavia. The UK has also received extradition requests for four subjects from Rwanda who won their extradition proceedings and remain in the United Kingdom.

In addition to the 360, I was visited this afternoon by a representative of an organisation in Bangladesh, which is not included in the list that I enumerated as 360 cases. It is believed that there are several Bangladeshis who have been able to take refuge in this country who committed vast atrocities during the 1971 war in that country. They, too, should be the subject of investigation.

In sum, the purpose of the proposed new clause is to ensure that the necessary progress is maintained in dealing with war crimes and crimes against humanity. I hope that my noble friend the Minister will give some encouragement to myself and others who they put their names to the amendment in the hope that we will see more action promised and in due course taken on this front.

I now turn to the amendments proposed to Clause 154. Despite the eloquence of my noble friend Lord Thomas of Gresford, I am disappointed that my noble friend Lord Macdonald of River Glaven was not here to speak to his amendment this afternoon. I know that he has a busy diary and I am sure that he is doing something very important. But I am glad that we have the wisdom of the noble and learned Lord, Lord Goldsmith, and the noble and learned Baroness, Lady Scotland, who will inform the House of their experience.

The importance of my noble friend Lord Macdonald of River Glaven and his potential contribution is that he is the immediate past Director of Public Prosecutions. I am working on the assumption that he has not consulted his successor, because what is proposed in his amendment, spoken to by my noble friend Lord Thomas, is inconsistent with what has been said very cogently to parliamentary committees by the current Director of Public Prosecutions, Keir Starmer QC.

I would say this to my noble friend if he were here, but were he still the Director of Public Prosecutions I do not believe that he would be prepared to support an amendment of this kind. It is quite simple in my view—I seem to be the only one from the Liberal Democrat Benches who is supporting our Government on this matter this evening—but the simplicity needs to be stated. The Director of Public Prosecutions and his senior staff make charging decisions every single day of the week. That is what they do a lot of the time and it is done at the most senior level. The suggestion that there would be a delay is a canard.

I do not think that I have to declare an interest—indeed, it would be sexist to do so—when I say that my wife works in a senior position for the Crown Prosecution Service, but living with a shared telephone I am well aware of the urgent decisions that are considered in great depth and taken at all kinds of unsocial hours and on all matters of urgency. The suggestion that there would be a delay is simply quite wrong. Furthermore, the Director of Public Prosecutions and his senior staff have enormous experience in making charging decisions. They make all the important charging decisions that take place in this country—or almost all; they should make all, if they are referred to them by their junior staff. In so doing, they apply the Crown Prosecution Service code.

These amendments, particularly that spoken to by my noble friend Lord Thomas of Gresford, attempt to fix in statutory stone something that is much more evolutionary—and needs to be. The Crown Prosecution Service code has gone through many changes. It is reviewed and changed regularly. Since Keir Starmer QC became DPP, it has been changed again and there may be good reasons for changing it in future. Furthermore I hope, and indeed apprehend, that the Director of Public Prosecutions would want to consult widely on the universal jurisdiction and might well wish to issue a code of practice. That might involve some changes to the current code. After all, the Crown Prosecution Service has a special code for dealing with rape cases which is non-statutory. It would be extremely foolish to make it statutory because it would be prevented from change. The same applies to the universal jurisdiction.

I say to my noble friend Lord Thomas of Gresford, in the kindest possible way, that the noble and learned Lord, Lord Goldsmith, with a single kick scored a hat trick when he demonstrated that the amendment put forward by my noble friend, and indeed by my noble friend the former Director of Public Prosecutions, is fundamentally flawed in its text. It shows exactly the danger of attempting to put into tablets of stone this sort of provision, even when it has been drafted by lawyers as distinguished as they.

I say to noble Lords who have tabled amendments to Clause 154 that we have a responsible Crown Prosecution Service, that we have a responsible and able Director of Public Prosecutions, and that it has been decided that this should be done not by the Attorney-General but by the Director of Public Prosecutions, who is a completely apolitical figure. It seems that the Government have got this exactly right. I hope that the Minister will not budge in his determination that Clause 154 should be unamended.

[Lord Pannick]

I was a witness to the discussions in the Bishops’ Bar between the noble Lords, Lord Thomas and Lord Carlile. I will not give evidence; I claim immunity. I welcome Clause 154. It will remedy a serious anomaly in the current state of our law. The anomaly is that although a prosecution in this sensitive and important context requires the consent of the Attorney-General, a person may be arrested and detained without any consideration as to whether such consent is likely to be given. It has been suggested in this debate that there have been very few cases of that. So what is all the fuss about? Why do we need to change the law? The noble Lord, Lord Campbell-Savours, made that point in opening and the noble Baroness, Lady D’Souza, made the same point.

I declare an interest. Over the past few years, I have advised, pro bono, a number of individuals who have been deterred from visiting this country by reason of the state of our law. They have been deterred even though there was no realistic prospect whatever of the Attorney-General giving consent to a prosecution. These people would not have been protected by diplomatic immunity because that applies only to certain very senior Ministers. They were deterred from coming to this country because of the risk that material would be put before a magistrate at an urgently convened hearing which might result in them being arrested and detained for a couple of nights, with all the inconvenience and embarrassment that that would cause, until this unhappy matter could be sorted out by the Attorney-General confirming that he or she did not intend to prosecute. So it is quite wrong to suggest that the current law has no serious effect. I should also mention that I have also advised, again on a pro bono basis, Jewish community groups in this country concerned about this aspect of the law.