Covert Human Intelligence Sources (Criminal Conduct) Bill

Debate between Lord Carlile of Berriew and Lord Thomas of Gresford

Report stage & Report stage (Hansard): House of Lords & Report: 1st sitting & Report: 1st sitting: House of Lords
Monday 11th January 2021 Lords Chamber

[Lord Carlile of Berriew (CB) [V]]

My Lords, on the narrow point just made very clearly by the noble Baroness, Lady Chakrabarti, I would question the way in which she diminishes the importance of codes of practice, which have the force of law. One example of a code of practice that has had the most incredible effect on the fairness of trials is Code C under the Police and Criminal Evidence Act 1984, which in many ways has been the formidable weapon in the hands of the defence advocate, and sometimes in the hands of the prosecution advocate too, to ensure that justice is done.

That said, I have no objection whatever to what is intended by Amendments 6 and 36. I suspect that the Minister would want to refer to the code, at least generally, which is peppered with words such as “reasonable”, “proportionate”, et cetera, and would say that reasonableness is imported in any event. However, I agree with the view that in a Bill of this kind, adding the word “reasonable” into the statute as suggested may be comforting and safe, and will make it a better statute.

I disagree with Amendment 18, which is in this group, and a time limit of four months. Running a CHIS is often very arduous and complicated, and many CHIS are run for much, much longer than four months. The noble Lord, Lord McCrea, in an earlier part of this evening’s debate, referred to the information that was obtained concerning the Real IRA, as it was called, which led to the conviction of a number of its operatives. I do not know anything about the facts of that case, but I suspect that in an operation of that kind, many CHIS were run for long periods, and for very good reasons. As the noble Baroness, Lady Manningham-Buller, said very eloquently, those who are running the CHIS are, in any event, these days, doing an extremely good job in great difficulty, and we do not want to add to their bureaucratic burden; they and their CHIS have great difficulties to face. They do not want to be faced with the necessity of reapplying every four months; it is just far too short a period.

[Lord Thomas of Gresford (LD) [V]]

My Lords, I have little to add to what has gone before. I often wonder whether the Government are concerned about judicial review when they resist placing the test of a decision on a reasonable basis in any legislation. If the test in any case is simply the subjective belief of the official—the government agent involved—it might be hoped that a trip to the divisional court and an application for judicial review would be avoided. The noble Lord, Lord Anderson, did indeed refer to public law tests. The Wednesbury test of reasonableness is now more than 70 years old and it is sometimes forgotten that it was the local picture house that took the town’s corporation to court because the licence it gave prevented children under 15 attending the cinema on a Sunday, whether accompanied by an adult or not—one’s mind flips back to the dim and distant past. That was the factual basis of a very important principle of law.

When considering reasonableness in this context, there are two limbs. In the context the House is discussing, the question would be whether the authoriser had taken into account all the wider implications of the authorisation, including its effect on prospective victims of the crime being committed. He would obviously have to follow the code, which, as the noble Lord, Lord Carlile, has just said, is peppered with instructions, having the force of law, to act reasonably. If the authorisers get beyond the first limb of the test, the second limb is whether the decision they have taken is so outrageous and irrational that, as Lord Diplock put it in a later case, it is

“so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it.”

Needless to say, cases challenging a decision tend to succeed on the first limb, but I do not see why we have to go to that position. I have been trying to check Hansard, but I think that the Minister referred, in reply to the first group of amendments today, to the decision being reasonable. I cannot see any reason why it would not be reasonable to put “reasonable” on the face of the Bill. I support these amendments.

Queen’s Speech

Debate between Lord Carlile of Berriew and Lord Thomas of Gresford

Wednesday 8th January 2020 Lords Chamber

[Lord Carlile of Berriew (CB)]

Hear, hear.

[Lord Thomas of Gresford]

We have one over there. Another fought Lord Roberts of Conwy for Plaid Cymru and there was even a Conservative contender, for a valleys seat in south Wales. I welcome the noble Lord, Lord Davies of Gower, and particularly welcome his support for the A55—a north Wales road, I note—which runs into the Irish Sea, and the new Irish border, somewhere to the west of South Stack, Holyhead.

The well-worn track, however, between the Temple and Westminster was becoming rocky. For a young barrister, political involvement risked a black mark. None of the current Supreme Court justices appears to have had a juvenile fling at politics, although I note that one of them once owned a racehorse called, provocatively, “Young Radical”—something we all thought we were. Now there are these vague proposals, in the Conservative manifesto and in the Queen’s Speech, to establish a constitution, democracy and rights commission. Protecting the Constitution, the paper published by the right-wing think tank Policy Exchange on 28 December, expresses alarm at the entry of the Supreme Court into the political arena. The authors appear to see the Supreme Court justices, hitherto political virgins, coming together as a collective body with a determination to seize political control and promulgate new laws. We heard an echo of that in the speech of the noble Lord, Lord Strathclyde, who referred to “imaginative” new laws.

It is a highly regressive document, even calling for the removal of the title of “Supreme Court” and reverting to the wording of the Victorian Act of 1876 when Lords of Appeal in Ordinary were created to man the Judicial Committee. The authors of the paper write:

“If appeals against judgments were reviewed, in the words of section 4 of the Appellate Jurisdiction Act 1876, before Her Majesty the Queen in her Court of Parliament, it might be much less likely that the UK’s apex appellate court would mistake its position in relation to the Houses of Parliament.”


Accordingly, this paper—the basis of Tory policy—calls for the renaming of the Supreme Court as the “Upper Appeals Court” to emphasise its inferiority to the political sovereignty of Parliament and the Executive. That may not be quite compatible with the concept of independence of the judiciary as the third pillar of our democracy. Are we on the way to Philadelphia?

Counter-Terrorism and Border Security Bill

Debate between Lord Carlile of Berriew and Lord Thomas of Gresford

Committee: 1st sitting (Hansard): House of Lords
Monday 29th October 2018 Lords Chamber

[Lord Carlile of Berriew]

Of course I agree with that, but in my view, and as I thought I made clear, the test of recklessness is entirely appropriate in this situation. If, for example, somebody preaches a sermon while being aware of the risk that he knows or should expect may radicalise another into killing citizens such as Lee Rigby, that to me is a proper protection of our society and the responsibility of the Government. I do not see why that should not be criminalised. I know that the noble Lord, Lord Thomas of Gresford, is an expert on recklessness so I shall give way to him.

[Lord Thomas of Gresford (LD)]

I rise only to criticise the use of the term “should expect”. It seems to introduce an objective test when, as he said earlier, it is subjective.

[Lord Carlile of Berriew]

When I referred to the noble Lord as an expert on recklessness I was not making a personal slight. I believe that he appeared in the case of Caldwell, which for some years has been overruled, so he knows the law on this. But in my view, a person who makes a statement of that kind, knowing of the risk of it being taken up by a radicalised Islamist or right-wing extremist, should expect the force of the criminal law to fall upon them. That is all the Government are seeking to do. On this clause at least, in my view, the Government are meeting the legitimate expectation of citizens subject only to my reservation about Amendment 5, which I would suggest the Government should consider carefully.

Wales Bill

Debate between Lord Carlile of Berriew and Lord Thomas of Gresford

Committee: 1st sitting (Hansard) : House of Lords
Monday 31st October 2016 Lords Chamber

[Lord Carlile of Berriew (LD)]

My Lords, I joined the Wales and Chester circuit of the Bar 45 years and two months ago. I went to chambers in Chester, where my noble friend Lord Thomas of Gresford was already well established, and I confess that I learned a great deal from him, almost all of it good. It is therefore with a good deal of pleasure that I rise to support his amendment.

I have some sympathy with the noble Lord, Lord Wigley, in his aspirations for Welsh institutions, but I fear that I have to come to the same conclusion as my noble friend Lord Thomas—that what he proposes is not needed and nor would it work. Speaking only for myself, I suspect, I have long been in favour of the creation of a separate Wales division of the High Court to cover civil and criminal proceedings. Although a great deal has been done, which I shall mention in a moment, we still do not quite have that formal division. In my view, that would be an excellent measure, well understood, and it would possibly allow Wales to have some appointments that would be appropriate to such a division, such as a presidency of the division—there are presidents of the other divisions of our senior courts. I think that that would be met with approval throughout the legal profession in Wales, although, as I shall set out in a moment, it is not necessarily those in the legal profession who are the right people to decide these things.

I join in the tribute that has been paid to the noble and learned Lord, Lord Judge, who as Lord Chief Justice did a great deal to give the Welsh jurisdiction an identity which previously it had not had for several hundred years. Of course, as I think my noble friend said at Second Reading—I have certainly heard him say it in your Lordships’ House—there used to be a chief justice of Wales. Indeed, he and I appeared at the Chester city quarter sessions, in the building of which there is a large portrait of a former chief justice of Wales—the well-known Lord Jeffreys or Judge Jeffreys. He is not necessarily the best precedent for such an appointment; nevertheless, there is that precedent. There could be a president of a Wales division, although not in a Jeffreys-like way—who, by the way, was not half as bad as history has made him out to be. Of course I will give way to my noble friend.

[Lord Thomas of Gresford]

Your Lordships will appreciate that I was born in Acton on the Jeffreys estate.

[Lord Carlile of Berriew]

I am delighted to hear that. My noble friend’s sense of justice certainly does not in any way imitate that of Lord Jeffreys of the Bloody Assizes.

However, what I am suggesting is that the presidency of a Wales division of the High Court would have real attractions within Wales.

I would also like—I know that the noble and learned Lord, Lord Judge, would associate himself with this—to praise the actions of the current Lord Chief Justice, the noble and learned Lord, Lord Thomas of Cwmgiedd, who was born in south Wales and has frequently reminded us of that fact. Indeed, the noble and learned Lord, Lord Thomas, has evolved what was introduced by the noble and learned Lord, Lord Judge, and given further credibility to the respect that is given to Wales as a jurisdiction where relevant and appropriate.

One group who have hardly been mentioned in this debate is the poor old litigants who go to law in Wales. I had the great privilege of representing Montgomeryshire as its Member of Parliament for 14 years. It sits on a long stretch of the Welsh border. It is quite common for a customer to walk into an estate agent in, say, Llanfyllin, and negotiate the purchase of a property in another branch of that estate agency in Shrewsbury. It is very common—I may have done it myself—to go and look at a new car in Welshpool, but negotiate the price of that new car with somebody in Shrewsbury or some other English town. It is important for Wales that we develop as strong a financial services industry and venture capital industry in Wales as possible, but we need those English and foreign investors who want to take part in such transactions to have the confidence that they work in a predictable legal environment.

This is my final example, although I could give dozens. We need to be sure that those who face a trading standards dispute that arises with a company that operates both in Wales and in England are not faced by someone like myself scratching their expensive head in chambers and saying, “Oh, we’ve got a private international law issue here; a conflicts of law issue on which I will have to write you an extremely learned opinion”—at whatever my hourly rate for the time being happens to be. I do not think that we should inflict those disputes and problems on litigants. Inevitably, that is what would happen after time.

There are many common law jurisdictions around the world and they of course pay enormous respect to the decisions of what was formerly the House of Lords and is now the Supreme Court, and pay lower levels of respect to senior courts as you go down the hierarchy of courts. But inevitably there would be judgments in a separate Welsh jurisdiction that would be inconsistent with judgments in the English jurisdiction or any other common law jurisdiction such as the Scottish jurisdiction—which, as the noble and learned Lord, Lord Hope, knows, has a different origin—or for that matter the jurisdiction in Northern Ireland.

While I would not wish to leave things necessarily as they are and I welcome the proposal made by my noble friend of a detailed and one-off review, creating a completely separate set of law for Wales would be to turn the clock backwards rather than forwards and would have damaging effects on potential litigants in Wales and on the economy of Wales

Criminal Justice and Courts Bill

Debate between Lord Carlile of Berriew and Lord Thomas of Gresford

Monday 27th October 2014 Lords Chamber

[Lord Carlile of Berriew (LD)]

My Lords, my name is added to a number of these amendments, and I will not repeat everything that has already been said, most especially by the noble Lord, Lord Pannick, the noble and learned Lord, Lord Woolf, and my noble friend Lord Marks. However, I cannot let this debate pass without making three comments about the unusual speech made by my noble friend Lord Horam.

First, his speech was inaccurate. He blamed judicial review for delays in infrastructure development and for making infrastructure development more expensive. Had my noble friend taken the trouble to read the successful judicial reviews of infrastructure development, he would have found that in 95% of the cases—and I may be underestimating that—the judicial review was granted because of the incompetence and sloppiness of officialdom ranging from government departments through to local authorities and other statutory organisations. The answer to that is for those public authorities to prepare their cases properly, to make their planning applications in due form and for Ministers, in appropriate cases, to call in major planning issues so that they can be decided more quickly.

Secondly, my noble friend’s speech was unusually statist. In his career he has, in a very distinguished way, exercised his principles repeatedly, having been a member of three political parties. As I understand it, he left his first party—the old Labour Party—because he regarded it as too statist, yet nothing could sound more statist than what he said just a few minutes ago. I am personally in favour of HS2, fracking and the Severn barrage.

[Lord Thomas of Gresford (LD)]

Hear, hear.

[Lord Carlile of Berriew]

My thanks to the noble Lord, Lord Thomas. However, I would be the last person to deny those who are opposed to those sometimes controversial schemes the opportunity to question them, if appropriate, by way of judicial review. Taking the contrary view is statism of the most extraordinary kind.

Thirdly, my noble friend’s speech was unjust because it seemed to remove the notion that there should be issues of principle about which people can take dramatic action. He has done it himself twice by changing parties as he moved from old Labour towards the party which he now represents with distinction in your Lordships’ House. However, that is the sort of exercise of principle, on more than one occasion, which the noble Lord, Lord Pannick, was talking about in moving the amendment. These are not pragmatic actions over small sums of damages; they are actions over great issues of principle. Even if some claimants would not actually win their personal actions for judicial review, we know, from the cases which we have all read and in which some in your Lordships’ House have appeared, that enormously important issues of principle for the future arise from them.

I will stray into future amendments, as others have done. Some of those points of principle have been made extremely successfully by interveners—NGOs that have chosen to put in submissions. Some have done so so effectively that their written submissions have changed the course of a case. Surely we should not inhibit justice by these rather mean provisions, which, in my view, my party—the Liberal Democrats—should never have given a single piece of powder or a single piece of shot to support.

Justice and Security Bill [HL]

Debate between Lord Carlile of Berriew and Lord Thomas of Gresford

Wednesday 11th July 2012 Lords Chamber

[Lord Thomas of Gresford]

I will speak to Amendments 42 and 47, which are grouped with the other amendments that have been spoken to. I acknowledge the assistance of the Bingham Centre for the Rule of Law in drafting my amendments.

The approach in the amendments introduced by the noble Lord, Lord Faulks, is to create a special, statutory public interest immunity procedure, limited to material sensitive to national security, which must be followed by the Secretary of State as a precursor to a closed material application. I consider that to be preferable to the clause as drafted but it is a bit of a straitjacket, as the noble and learned Lord, Lord Falconer, pointed out. It means that the judge would have to go through a series of hoops set out in Amendments 39 and 40 before he could proceed. I hope to suggest a different model that runs more with the grain of the Government’s proposals and is more flexible but achieves the safeguards that I am sure all noble Lords—except possibly my noble and learned friend the Minister—consider necessary.

The present position, as outlined already by other noble Lords, is that public interest immunity springs from a common-law basis, with its principles derived from a number of cases. I need not go into that. The Government’s approach in the Bill is to leave public interest immunity to the common law and not introduce a statutory procedure, but as an alternative to introduce statutory closed material procedures at the Secretary of State’s discretion for the protection of material sensitive to national security. All the Secretary of State need do is consider whether to make a PII application under Clause 6(5)—but he does not have to make such an application.

It is necessary to restate and hold in the forefront of our minds whenever we discuss this topic the essential distinction between the two applications. In a PII application, the judge weighs the material on Wiley principles and orders disclosure or partial disclosure where he determines that the public interest in the administration of justice outweighs the public interest in non-disclosure. But material that is not disclosed under PII—being, in the judge’s judgment, too sensitive —is not admissible and therefore plays no part in his determination of the case. Under CMPs, closed material is admissible even if it is not disclosed. Indeed, the Secretary of State may wish the secret information to be central to the judge’s determination. I am sorry to restate what has been said over and again but it is important to bear that in mind because it impacts on the amendments I am putting forward.

Therefore, if sensitive material in the hands of Secretary of State undermines his case or supports the the claimant’s case, it is in the Secretary of State’s interest to make a PII application and to persuade the judge not to disclose it or have it form any part of his determination. If, on the other hand, the Secretary of State is in possession of sensitive material which he wishes to rely on and which he wishes to be admissible—which he wishes the judge to take into account—it is in his interest to make application for closed material procedures. Remember, under the Bill it is entirely for the Secretary of State to determine which sort of application he makes.

The choice given to the Secretary of State by Clause 6(5) as to which procedure to follow gives him a significant litigation advantage over the claimant in two respects. First, it may deny to the claimant access to material in his favour when a PII application is made. Secondly, by the use of closed material procedures, if that choice is taken, it puts unchallengeable but admissible evidence in the Secretary of State’s favour before the judge for his determination of the issues. This consequence of Clause 6 is in direct conflict with the motivation of the Bill, as stated publicly by the Lord Chancellor—repeated in speeches and in the documentation that has been supplied to us—that this proposal in the Bill is not to protect secrets, because PII and closed material procedures equally protect secrets, but to make litigation fairer. Yet the proposal to make litigation fairer gives, as I say, a litigation advantage to the Secretary of State.

This brings me to Amendment 42. An astute litigator on behalf of the claimant should suspect that if the Secretary of State makes an application for public interest immunity, the chances are that the sensitive material which is withheld is in the claimant’s favour. The purpose of the amendment, like Amendment 41, is to permit any party to the proceedings to make a closed material application if he has reason to believe it would be in his interest to do so. That would go some way towards equality of arms.

The noble Lord, Lord Carlile, pointed out that in criminal proceedings, with which he and I are particularly familiar, very often a defendant will not know that an application has been made at all. Nothing may be said. I think, but I may be subject to correction, that in civil proceedings a claimant would know that a Secretary of State’s certificate had been issued to claim public interest immunity.

[Lord Carlile of Berriew]

We heard from the noble Lord, Lord Pannick, that in civil proceedings, as in criminal proceedings, there are certain circumstances in which one might know—there are categories set out in judicial decisions—but there are certainly cases in which one might not know, whether in civil or criminal proceedings. I am sure that that is right.

[Lord Thomas of Gresford]

That is a matter for clarification by people who know about it and we will look into that later.

Legal Aid, Sentencing and Punishment of Offenders Bill

Debate between Lord Carlile of Berriew and Lord Thomas of Gresford

Monday 23rd April 2012 Lords Chamber

[Lord Thomas of Gresford]

Why should one run that risk? Why should one have applications for judicial review being made based on the amendment as currently drafted? This adds nothing to the Bill. All it does is open an avenue for satellite litigation which should not be permitted.

[Lord Carlile of Berriew]

My Lords, it would be a great disappointment to your Lordships’ House if you were to find that there was unanimity on these Benches. I am not going to disappoint your Lordships: there is not.

I agree entirely with the noble Lord, Lord Pannick—particularly in relation to the second and third parts of his speech—and also with the noble and learned Lord, Lord Woolf. In answer to my noble friend Lord Thomas of Gresford, I would say that Clause 1(1) contains absolutely no statement of principle whatever, whereas Amendment 1B does contain a statement of principle, albeit within the financial limits set by the Bill.

What I really wanted to do is say a few words about financial privilege. I suspect that there will be other noble Lords who were once Members of another place who, like me, have sat on the Reasons Committee. It is the Reasons Committee that drafts the reasons why the Commons do disagree with your Lordships' House. It sits in a room just behind the Speaker’s Chair. That room is known as the Reasons Room. Behind that Alice-in-Wonderland title lies an Alice-in-Wonderland process. In the Reasons Room, the Reasons Committee—which does not produce a Hansard record, or certainly did not do so in my time—produces reasons that, by and large, are presented on a piece of paper and nodded through. That seems to me to be what has happened here. The reason that is given is that,

“it would alter the financial arrangements made by the Commons”.

That is a statement of predictive certainty. What we have heard from my noble friend the Minister suggests that there might be a possibility at some stage in the future that some kind of judicial review action might, not would, have some effect on, not alter, the financial arrangements made by the Commons.

I echo the words of the noble and learned Baroness, Lady Butler-Sloss, about the process of judicial review. Every judicial review application goes in the first instance, on an entirely paper procedure, before a judge of the administrative court. As it happens, most applications—about 80 to 90 per cent—are refused on the papers and there is practically no expenditure upon them at all. I cannot see any circumstances in which it is more likely that judicial review proceedings would continue as a result of including this amendment in the Bill as compared with the Bill as it stands. As my noble friend Lord Thomas said, the Bill as it stands contains the potential for applications being made for judicial review against the exceptionality provisions and against a ruling that legal aid should not be given. What is proposed here hardly increases that risk.

[Lord Thomas of Gresford]

My Lords—

[Lord Carlile of Berriew]

I will give way in a moment; I shall just finish the sentence.

If the other place has got its reasons wrong then surely we are entitled to question those reasons in this House, and if the burden of the debate justifies it, to ask the other place to reconsider, on the basis that it has got its reasons wrong. I will give way to my noble friend now—but he does not want me to. I am glad that I have answered his question. I have nothing further to add.

Legal Aid, Sentencing and Punishment of Offenders Bill

Debate between Lord Carlile of Berriew and Lord Thomas of Gresford

Wednesday 1st February 2012 Lords Chamber

[Lord Carlile of Berriew]

I apologise for interrupting my noble friend. Before he sits down, will he help us on this matter in relation to his narrower point on the Aarhus convention? He was kind enough to circulate the learned opinion of Mr Hockman and others, including, as I understand it, to my noble friend the Minister. Will my noble friend tell the House whether he has had a response to the opinion of Mr Hockman and others? If not, does he agree with me that it might shorten the debate if, after he has sat down, the Minister were to indicate whether or not the Government accept the premise of the Hockman opinion?

[Lord Thomas of Gresford]

I am most grateful to my noble friend for interrupting me with one paragraph to go, which would have relieved your Lordships a great deal. The opinion has only recently been produced to me and the Bill team has had it only for a day, so I could hardly expect an immediate response. I hope that my noble friend the Minister will be able to deal with some of the issues that are raised and the issues that I am raising in my remarks.

To conclude, that one size does not fit all is a recurring theme in the Jackson report. Every practising lawyer will agree with that. Proof of the issues that arise in litigation—sometimes liability, sometimes causation, sometimes quantum, and so on—gives rise to different risks and therefore to different solutions. This very Bill, for example, proposes different statutory instruments making different provision for different types of case. I look forward to hearing my noble friend’s response in due course. I beg to move.

--- Later in debate ---

[Lord Carlile of Berriew]

My Lords, I want to say a few words in support of these clauses and indeed of all the amendments that my noble friends have spoken to. One of the most unwelcome trends in litigation in recent years has been its commoditisation, and if this is not stopped I see the development of litigation futures as a commodity that will be traded, just like potato futures and metal futures.

I do not know whether any of your Lordships has had an experience like mine a few months ago. I was involved in a road traffic accident as a rear-seat passenger in a vehicle on a country road in Northern Ireland at about 11 o’clock one morning. I came back by air to Heathrow the same afternoon. I had not been injured in the accident, although it was quite unpleasant. As I was standing on the Heathrow Express platform, coming back into central London, I received a text message from a claims-farming business that referred to the accident I had had the same morning. Now if it happened to me, it must be happening to an awful lot of other people. I suggest that Amendment 165 nails this problem for that kind of activity. That kind of low-level claims farming, but on a very large scale, is putting up insurance premiums and the cost of litigation. Perhaps worst of all, it is encouraging people to make claims that they otherwise would not have made, and which may in the end cost them if not money, a great deal of anxiety.

[Lord Thomas of Gresford]

Does my noble friend not agree that in the instance that he described and in which he was involved there could have been an element of corruption with people being paid when they gave information about that accident?

[Lord Carlile of Berriew]

There is certainly that possibility.

I wanted to add something else about hospitals. When I was a Member of another place, I often visited a celebrated orthopaedic hospital in the next county. At that time—I cannot say whether it is the case now—at the end of a long corridor in that hospital there was a solicitor’s office. That was an unusual arrangement but one that no doubt brought some rent to the hospital. I have real reservations about that kind of arrangement. I am all in favour of general advertising and it is right that solicitors’ firms should be able to advertise in local and national newspapers so that people are aware of the kinds of specialist services that they provide. But we must take this opportunity to reject anything that smacks of ambulance-chasing.

Legal Aid, Sentencing and Punishment of Offenders Bill

Debate between Lord Carlile of Berriew and Lord Thomas of Gresford

Tuesday 24th January 2012 Lords Chamber

[Lord Thomas of Gresford]

Solicitors. It is perfectly possible for a solicitor to apply to the court, as happens in civil cases, with a cost schedule which indicates how much his costs will be and what reasonable rates he will charge, and for the judge to make an order to control the whole process to permit the release of funds to fund the criminal defence. To my mind, this is an area which the Government should seize on as reducing the burden of criminal legal aid. It is unlikely that all the assets of the individual will be recovered in an application under the Proceeds of Crime Act. Accordingly, the sooner that the Ministry of Justice gets its hands on the money—in the sense that it does not have to pay out legal aid—the better.

I hope that my noble friend will take the issue seriously and address my proposals. I beg to move.

[Lord Carlile of Berriew]

My Lords, I shall start by making a few comments about my professional experience and then look at the broader picture. In recent years, the bulk of the publicly funded work I have done at the Bar has been in very high-cost cases, as they are called—very large fraud cases. I have seen a procession of those cases in which substantial funds have been restrained and not used for the costs of the case. Confiscation proceedings have followed in those cases where there have been convictions. In some cases, they have been long drawn-out. The funds have rarely been confiscated in full.

In one case I can think of, the confiscation proceedings lasted two or three years and, in the end, the defendant was returned £30 million, I believe, because the wrong procedures had been used by the prosecution. In another case from my experience in recent years, a defendant who was later sentenced to nine and a half years’ imprisonment and made the subject of a confiscation order in excess of £130 million remained, throughout the period leading up to and during the trial and for a considerable time after—as far as his family was concerned—living in one of the finest apartments in central London, worth many millions of pounds. Nobody was able to lay a hand on any of it. By the time the confiscation proceedings were over, such a miasma of transactions existed that that substantial property was immune from any confiscation. There are current cases, about which colleagues have told me—and without referring to any of my own current cases—in which a similar picture may emerge. This is an issue on which the Bar Council, of which I am an elected member, as I said in an earlier sitting, has given a great deal of attention. I should say that on this subject at least it might be worth listening to the Bar Council. Senior members of the Bar act for the prosecution and defence in every one of these cases, bar a very few.

The intention of the Bar Council in proposing amendments, believe it or not, was to save legal aid funding and to create a situation in which people’s own money, subject, of course, to proper controls, was used to pay for their own defences. It would create a situation in which a defendant, who at present may be able to relax while public money is expended on abuse of process hearings, dismissal hearings, disclosure hearings, and all kinds of satellite proceedings, costing him nothing, may have to control the spending on his defence. It seems a very sound principle that the defendant who has resources should have some control over the spending on his or her defence.

Furthermore, restraint orders are on the increase, as the General Council of the Bar has pointed out to the Government. In 2009-10 the CPS made 1,549 restraint orders. That had increased to 1,641 by 2010-11. The estimated value of assets under restraint in 2010-11 was as much as £744 million, every penny of it being money available to be spent on criminal defence but not so spent. Any legal advice and representation in those cases is charged to the legal aid fund. These are cases which, on the latest available figures—from 2005—caused the expenditure of more than 50 per cent of Crown Court legal aid, although the cases amounted to only 1 per cent of the cases. The average cost per case for those cases in 2003-04 was £2.6 million, with the average trial lasting 67 working days. These are very big cases, which are being unnecessarily funded from public funds.

A defendant accused of serious fraud may, for example, have £1 million on deposit in a bank account, frozen under a restraint order. An order may be made for the funds to be unfrozen to pay his children’s private school fees. I was involved in a case recently in which exactly that happened. The defendant was unable to fund his own defence but he was able to fund his son’s school fees at one of the best public schools. My noble friend Lord Thomas of Gresford has contrasted the criminal situation with the civil courts. He described the reaction of the noble and learned Baroness, Lady Butler-Sloss, to what he had told her and she certainly represented the civil court position correctly.

The Government’s response to the Bar Council’s proposal, and that of some of your Lordships, has been to argue, at least so far, that the sums restrained need to be preserved in the hope that, at some point further down the line, a confiscation order may be obtained on conviction. In November 2011 several national newspapers ran stories on revelations that at the end of March 2011, the sum of money outstanding in purported confiscation orders was £1.26—wait for it—billion. That made the front page of the Sun. I suggest to my noble friend that the hope that some money might be recovered is no substitute for meeting the up-front costs of the defence via the legal aid bill.

When confiscation orders are made, they are not used to fund legal aid but are channelled to other government departments; they go into the general Exchequer pot. This does not reflect the strain placed on the legal aid budget by high-cost fraud cases. Therefore, this seems to be—if I may be forgiven a vernacular phrase—a complete no-brainer. It is a way of saving the legal aid fund—to use another such phrase—shedloads of money. I say to my noble friend: let us wake up and do it.

--- Later in debate ---

[Lord Carlile of Berriew]

In his closing remarks, perhaps my noble friend would like to reflect upon what the noble Baroness, Lady Buscombe, said. In the last group of amendments there was some discussion of post-legislative scrutiny. It is now something like nine years since the Proceeds of Crime Act was passed and I am not aware of any post-legislative scrutiny on this issue. Might this not be the occasion for some creative post-legislative scrutiny?

[Lord Thomas of Gresford]

I should hate to say who should be there in sackcloth and ashes, but clearly things went wrong and the reasons that were given by the Government of the day proved to be without foundation. The situation is simply a disgrace. The quicker the Government move to carry out this review that they are having in the Crown Court, the better.

I shall withdraw this amendment, but I can assure my noble friend the Minister that I shall be pounding on his door about it while this Bill is going through and, if nothing happens, thereafter.

Legal Aid, Sentencing and Punishment of Offenders Bill

Debate between Lord Carlile of Berriew and Lord Thomas of Gresford

Wednesday 18th January 2012 Lords Chamber

[Lord Carlile of Berriew]

My Lords, the amendment stands in my name and that of other noble Lords. I should make it clear that I shall speak specifically to Amendment 54 and not to the other amendments in this group, which I shall leave to others. Amendment 54 relates to paragraph 17 of Schedule 1 and deals with judicial review. This is an amendment on which the background work has been done by the Bar Council. I should declare an interest as an elected member of the Bar Council—despite that, I agree with it concerning this amendment.

I welcome the Government’s proposal generally to retain public funding for judicial review claims. Judicial review claims are an important part of the rule of law. They are all subject to an important qualification, which is the requirement to obtain the permission of the court for the claim to be pursued. That is not a light procedure. Your Lordships should know that when an application is made for permission for judicial review it goes through quite rigorous stages. The first stage is for the papers to be placed before a High Court judge or a deputy High Court judge—I do from time to time carry out the latter function in judicial review—where they are considered in full. In the great majority of cases, probably in about 95 per cent or possibly more, permission to apply for judicial review is refused at the papers stage. So the permission stage is quite a formidable hurdle. If permission for judicial review is refused, the matter can go for an oral hearing and there are stages thereafter. So this is quite a difficult procedure for potential claimants. It is not easy to be able to bring a case for judicial review.

However, paragraph 17 as drafted causes a difficulty which I and others are anxious to resolve and which may have arisen through inadvertence in drafting. Some of the most important judicial review cases brought in recent years have concerned the way in which public bodies have acted in relation to events giving rise to, or in the aftermath of, death or serious injury. Many of those cases have enjoyed or suffered a large amount of publicity and, indeed, debates in this House and another place. Other significant cases have concerned the exercising of powers enabling a body to seize goods or to enter land—again, a considerable intrusion with the rights of citizens on the face of it. The grounds on which the courts may grant remedies in judicial review are a signal of the excellence of our legal system. I see the noble and learned Lord, Lord Woolf, in his place and he has more experience than most, both at the Bar and on the Bench, in seeing judicial review developing the law in a way that I hope he would agree has become the envy of the world. The public body concerned in judicial review cases is either a statutory body that is alleged to have acted beyond or contrary to its powers, or a Minister or other Crown body exercising some statutory function, or occasionally other bodies that are like public bodies.

The Bar Council and I are concerned that the current drafting of Schedule 1 fails to make it clear that the relationship between paragraph 17 and the exclusions in Part 2 of Schedule 1 leave a fair and level playing field. A number of the exclusions in Part 2, including paragraph 8, which refers to “breach of statutory duty”, could on the face of it remove the scope of legal aid from a wide range of claims for judicial review. The following are examples that may be excluded. A challenge to a decision by a public authority to demolish private property, for example as part of a planning procedure, would be excluded, as would a judicial review to enforce the performance of a statutory duty such as housing a homeless child under the Children Act—I can tell the Committee that such applications are very frequent leave claims, at least permission claims in judicial review. A challenge to a hospital that refused to provide emergency life-saving treatment would be excluded—such claims sometimes arise in relation to elderly people or even in relation to people to whom treatment is denied because, for example, of a history of smoking. Also excluded would be a judicial review into a decision not to hold an inquiry into the violent killing of a young offender. Those are all examples of cases of real importance.

I hope that the Minister will say either that the intention is not to exclude any of those categories, as a statement to that effect would be of great utility in the event of ambiguity being perceived by the courts in such matters, or that he will say, preferably, that as there may be some ambiguity, the Government wish to clarify the matter by producing their own amendment for Report so that there is no lack of clarity or ambiguity. The simple way of doing that would be to remove any doubt by disapplying the exclusions in paragraphs 1 to 5 and 8 of Part 2. This is an important matter. I do not propose at this stage to spend more time on it because I hope that we will hear a helpful response from my noble and learned friend. I beg to move.

[Lord Thomas of Gresford]

My Lords, I speak to Amendments 55 to 59 which are in my name and that of other noble Lords. I recall when I first started as a lawyer there were some 400 to 500 certiorari applications every year. It was a very limited field but under the guidance of the noble and learned Lord, Lord Woolf, and others, the field of judicial review has expanded very considerably.

However, there is a problem. Unmeritorious claims are undoubtedly brought before the court in immigration cases, which take up a great deal of time but are not ever going to get a full hearing in any event. Attempts have been made to curb this, and it is a provision now that only certified people can give immigration advice and representation. It is regulated so that only solicitors, barristers, legal executives and those in a scheme run by the Office of the Immigration Services Commissioner are permitted to give immigration advice and representation in the course of a business. A voluntary agency or charity cannot unless it complies with certain requirements of the Immigration Services Commissioner. Despite all that, these claims are still brought. Some 70 to 80 per cent of immigration judicial review applications are not brought with legal aid, because in order to get legal aid at all there is a merits test, which the particular application has to pass before a solicitor is entitled to take the case forward.

The purpose of Amendment 55, which I have put forward, is to keep the scope of judicial review as it is under paragraph 17 but to remove the restrictions on immigration cases that are set out in sub-paragraphs (5) to (7). The immigration-specific exclusions that are now contained in that paragraph were not part of the original consultation. When the consultation was first put forward in November 2011, the Government said, quite robustly, that they regarded judicial review as a particular priority because:

“These proceedings … represent a crucial way of ensuring that state power is exercised responsibly”.

In their response to the consultation, the Government said, in relation to unmeritorious judicial review applications, that:

“The current criteria governing the granting of legal aid in individual cases would generally preclude such funding”.

So, on the one hand the Government are saying that they think judicial review is very important in making sure that the UK Border Agency acts properly, and on the other hand they are saying that the granting of legal aid will require the passing of the merits test, which will generally preclude such funding. That was their attitude then; however, when they produced the Bill, they excluded these cases, which they acknowledge are crucial to ensuring the responsible exercise of state power. I am looking to hear an explanation from the Minister of why, between the consultation and the publication of the Bill, it was thought necessary to exclude immigration cases in that way.

Amendment 59 is intended to retain legal aid for an immigration judicial review where a previous appeal or judicial review has been successful or has not been brought with legal aid. Under the Bill, a previous appeal or judicial review proceedings will prevent or exclude legal aid for any subsequent immigration judicial review applications—whatever the merit of subsequent applications and whatever the result in the previous appeal or judicial review proceedings. Whether the earlier proceedings were successful, or whether the UK Border Agency has failed to act on the previous decision or it is flouting the decision, it is not possible to have legal aid to bring a second judicial review. The Bill will remove legal aid generally for all non-asylum immigration matters. This means that those unable to pay for legal advice and representation will in immigration cases not be able to obtain legal aid for advice about their immigration situation or representation in dealing with the UK Border Agency or any immigration appeal. The immigration-specific exclusions relating to judicial review effectively ensure that those affected cannot have any legal aid at any stage of the immigration process. As I have already said to your Lordships, immigration is a problem, and it is brought forward in unmeritorious cases, generally without legal aid backing it. But now not even in the meritorious cases will legal aid be granted.

--- Later in debate ---

[Lord Wallace of Tankerness]

This is quite important. As my noble friend will recognise, the overall structure of what is proposed to be in scope does not provide for legal aid for damages. However, I recognise what he says about damages being part of an overall judicial review claim. It is important that we look at this and ensure that what appears in the Bill delivers the intention. I am sure that we will return to this matter on Report.

My noble friend Lord Thomas of Gresford spoke to Amendments 55 to 59, which concern the exclusions from legal aid which we have made for some immigration judicial reviews. Before I turn to the specific amendments, it might be helpful if I briefly remind the Committee of the Government’s reasoning on this matter. My noble friend raised the question of the lack of consultation—as did the noble Lord, Lord Bach, who I am delighted to engage with again at the Dispatch Box. I think that the last time we did so was in the debate on the fixed-term Parliaments legislation. It has been six months but seems like a year.

My noble friend and the noble Lord raised the question of a lack of consultation. However, in response to our consultation on legal aid the Judges’ Council of England and Wales highlighted the large number of immigration judicial reviews that were without merit. That point was raised in the consultation and my noble friend has accepted in speaking to his amendments that there are a number of unmeritorious cases taking up time. This change was made against that background. Although only a minority of those cases would currently receive legal aid, the Government’s view is nevertheless that it is wrong in principle for such cases to remain within the scope of funding. We are therefore seeking to remove two classes of immigration judicial review from the scope of legal aid, again subject to certain exceptions which I will come on to discuss.

The noble Lord, Lord Bach, asked whether I would double-check the figures on taking these parts of judicial review out of scope. Of course we will double-check them, and if there is further information we will make it available not only to the noble Lord but to all those participating in our proceedings.

The first category of case that we seek to exclude is one where there has already been at least one appeal before the tribunal or another judicial review within the past year on the same or a substantially similar issue. The second category concerns judicial reviews of removal directions rather than the underlying immigration decision. Such proceedings are often brought at the last minute—sometimes literally as people are being put on to a plane. We recognise that there will be some genuine, if unusual, cases within these categories that could still warrant legal aid. That is why we have made exceptions to our proposed exclusions—if the Committee will bear with the double negatives, which seem to be quite frequent in this part of the Bill. These are intended to take into account the potential for changes in an individual’s circumstances over time. In both categories, the exclusion is subject to a one-year time limit. We have also made exceptions for judicial reviews of decisions by the Home Office to certify under Section 94 or Section 96 of the Nationality, Immigration and Asylum Act 2002. These provisions curtail asylum appeal rights in certain circumstances and so maintaining legal aid for a potential judicial review is, we believe, an important safeguard.

We are therefore keeping judicial reviews of a decision by the Home Office to refuse to treat further submissions as a fresh claim for asylum. Again, this maintains the availability of legal aid for judicial review asylum cases where there may not have been an appeal to the tribunal. It has been suggested that most types of immigration cases will not be able to get legal aid, but most types of immigration judicial review will still be in scope. The provisions in the Bill remove only two relatively limited types of judicial review, and even these provisions are subject to the exceptions that I have outlined.

On the specific amendments spoken to by my noble friend Lord Thomas, Amendment 55 seeks to keep all immigration judicial reviews within the scope of legal aid. From what I have said, noble Lords will see why the Government do not agree with that amendment.

Amendments 56 and 57 relate to the operation of the exclusion of judicial reviews on removal directions. The Government seek to exclude judicial reviews of removal directions from the scope of legal aid because there will already have been a chance to appeal the underlying decision. More specifically, Amendment 56 would in effect retain legal aid for these judicial reviews in circumstances where there had been no appeal of the original underlying decision, or at least no appeal before the removal had been effected.

It is true that some decisions to remove can be challenged only by appeal from overseas, as Parliament decided. While judicial review can still be used as a means of challenging this, it does not follow that legal aid should be available in all these cases. As I explained earlier, in asylum cases where there is no right of appeal or where, as in Section 94 cases, any right of appeal arises only outside the UK, legal aid will remain available for judicial review. However, we believe that choosing not to exercise this appeal right should not bring someone within the scope of legal aid.

Amendment 57 raises a technical point, as my noble friend recognised. It is based on the belief that the provision around the “leave to appeal” in paragraph 17(6)(b) is unnecessary because there is no provision to appeal to the First-tier Tribunal in these cases. However, there is a leave-to-appeal stage to the Upper Tribunal, so we think that the current drafting is sound, albeit that this is a very fine technical point.

The intention of Amendment 58, as I understand it and as was stated by my noble friend, is to avoid a potential definitional problem to do with the meaning of asylum across the 1951 refugee convention, the EU procedures directive and the qualification directive. Again, it is recognised that this is technical but of course important, and it is about the definition of protection cases—that is, non-refugee convention cases.

The Government understand the concerns but on balance we think that they are misplaced. Our view is that the reference in paragraph 17(7)(a) of Schedule 1 to an asylum application within the meaning of the EU procedures directive is sufficient to cover all applications for international protection. I am happy to put it on the record that that is our intention. However, the amendment goes further than the Government intend; it seems to provide legal aid in all judicial reviews connected with asylum matters, not just those where there has been no previous opportunity to appeal. I believe that it would be wrong to retain legal aid for judicial review cases that are very likely to be without merit, regardless of whether they are asylum cases. Nevertheless, I express my appreciation to my noble friend for raising this issue and regarding the specific points that he made, we will certainly look at whether anything further is required here.

Amendment 59 seeks to add two further exceptions to the exclusions. The first is to make an exception for cases that have not previously benefited from legal aid. I understand the logic: without legal assistance, someone may not have put the right arguments forward first time around, so when it comes to potential judicial review, should they not have legal aid to ensure that they get it right? Our response is that if legal assistance means that they can put new arguments forward—sufficiently new that the court or tribunal is considering a different issue—they would still be eligible for legal aid for the judicial review. This is because exclusion applies only where the judicial review is in respect of the same or substantially similar issue. However, if they are still raising the same or substantially similar issue, even with the potential benefit of a lawyer, we do not believe that they should be eligible for legal aid.

The second exception, as sought by Amendment 59, relates to cases where the appellants have been successful in their previous appeal for judicial review. We think that there is an issue here and we will certainly look at that.

I hope that we have given a satisfactory explanation. This is a technical matter but I do not for a moment deny that these are serious issues. In asking my noble friend Lord Carlile to withdraw the amendment in the light of the assurances that I have given, let me give him a further assurance. He asked whether judicial review funding would cover the damages remedy sought through the judicial review, and the answer is yes. If we can find the right words, we will give proper effect to our intention.

[Lord Thomas of Gresford]

Before my noble friend Lord Carlile replies regarding his amendment, I thank the Minister for his reply to my amendments, which raised difficult technical points. I hope that he will forgive me if I read what he has said with some care, as no doubt he will read the whole debate with some care. I look forward to seeing what technical amendments he may feel are necessary to deal with the points that I raised. I am also grateful to him for the assurances that he has given, certainly in relation to part of the amendments.

[Lord Carlile of Berriew]

My Lords, in relation to Amendment 54, I am grateful for the explicit support from the noble Lord, Lord Bach, on the opposition Front Bench. So far as my noble and learned friend’s response is concerned, as he spoke, I reminded myself that when I was a young man and he was a very young man, we shared a flat for a period within the Division Bell area. When you have shared a kitchen with someone, albeit one in which the most used utensil was the corkscrew, you get to know who you can trust. I entirely trust my noble and learned friend and always have done. I am extremely grateful for his assurances; he answered very fully the concerns that I and the Bar Council felt about this issue. I look forward to returning to the matter on Report, with those assurances intact and enhanced. In the circumstances, I beg leave to withdraw the amendment.

Legal Aid, Sentencing and Punishment of Offenders Bill

Debate between Lord Carlile of Berriew and Lord Thomas of Gresford

Tuesday 10th January 2012 Lords Chamber

[Lord Thomas of Gresford]

These events occurred long ago when I was in my solicitor phase. I was called “Mr” in those days. It was only when I became a barrister that I became “Esquire”, and later I became “learned”. These are the progressions one makes within the profession. Looking back to my early days, I think that the noble and learned Lord, Lord Woolf, is quite right: barristers were members of the panel that considered these applications. It was a perfectly satisfactory method of appeal, which was independent of the Government who were providing the funds. I envisage an independent panel to review the director’s decision, not an in-house person but people who could be referred to more cheaply than the First-tier Tribunal to which the noble Lord, Lord Bach, referred. I commend that process as opposed to the one put forward by Her Majesty’s Opposition.

[Lord Carlile of Berriew]

My Lords, having inherited a number of returns from my noble friend Lord Thomas of Gresford when we were both barristers outside London many years ago, I share the memory of the effectiveness of those committees, including the gloss placed on it by the noble and learned Lord, Lord Woolf.

I would like to point out a parallel that exists today. Those of us who from time to time undertake very high-cost criminal cases have to apply for permission to the Legal Services Commission to do certain aspects of preparation. If the commission refuses permission, for example to obtain an expert witness’s report or to make photocopies of original documents—believe it or not, it can descend to that—there is a committee made up of practising lawyers who determine whether that permission should be granted, and it works very well. If the committee decides against the applicant, he or she has the opportunity to apply for permission to apply for judicial review. That involves a paper process, initially before a judge. If permission is refused, it is open to the applicant to have an application heard before the full court, but it is far from universal that that is done.

We therefore have in the existing provisions for very high-cost cases something very similar to that described by my noble friend Lord Thomas of Gresford. I suggest to the Minister that this would be a practical way of dealing with this appeal problem that would cover the concerns of the noble Lord, Lord Bach, those who have signed his amendment and those of us who have signed my noble friend’s amendment.

Police Reform and Social Responsibility Bill

Debate between Lord Carlile of Berriew and Lord Thomas of Gresford

Thursday 14th July 2011 Lords Chamber

[Lord Thomas of Gresford]

My Lords, I beg leave to move this amendment standing in my name and that of my noble friend Lord Macdonald, who like so many of us was here until late last night but is unavoidably abroad today.

Clause 155 is of importance as it ousts a long-held and apparently unfettered right of the private citizen to seek an arrest warrant, particularly in relation to offences of universal jurisdiction. For our part, we agree with the thrust of the change that has been made. As the prosecution of offences of universal jurisdiction—for example, war crimes—has always required law officer consent before a plea is entered in the court, why not require the Director of Public Prosecutions to consent on the same test before the process may be commenced at all? The alternative is the possibility that a case may proceed in the absence of any likelihood of law officer consent being forthcoming. It is a hopeless case. In that case, the prosecution will inevitably and quickly collapse when the consent of the law officers is withheld. It will have been nonsense from the start. That is most undesirable in such cases, which may have sensitive international connotations.

It seems to me that to require the prior consent of the Director of Public Prosecutions, as the clause does, merely creates an additional safeguard at no markedly adverse cost to justice. It has to be recognised that the proposal represents an inroad into the right of the citizen, unrestricted and unfettered, to seek arrest warrants, so it is particularly important, if this is an inroad, that the tests that the Director of Public Prosecutions will apply in considering the grant or the withholding of consent are crystal clear to the public, who to an extent are losing a right of unfettered access to the court. The purpose of the amendment is to achieve that clarity by putting those tests into the Bill.

What are the tests set out in the amendment? They are the tests that are used by Crown prosecutors in considering whether to charge individuals with criminal offences. This is appropriate because in a private prosecution the issuing of a warrant is analogous to the charging process in a conventional state prosecution. It is the actual issuing of the warrant that sets the ball rolling and puts the defendant under the jurisdiction of the court.

The full code test requires the prosecutor to consider whether the evidence before him raises a realistic prospect of conviction—in other words, that a reasonable tribunal would be more likely than not to convict upon that evidence. If the answer to that question is yes, there is a reasonable prospect of conviction and the prosecution would be in the public interest, a charge must follow.

The second test that is set out in the amendment is known as the threshold test. That is to be used in circumstances in which a prosecutor has enough material to suspect an individual of an offence and a real expectation that material satisfying the full code test will become available within a reasonable period. Noble Lords who were in Committee will recall that the former Attorney-General, the noble and learned Lord, Lord Goldsmith, suggested that the public interest test should come in at that stage. In fact, that is not the case in ordinary prosecutions in this country.

The Director of Public Prosecutions, Mr Keir Starmer, has said in evidence to the Public Bill Committee that he believes these tests, which are normally used in this country for granting consent to the issue of a warrant where universal jurisdiction offences are alleged, to be the appropriate tests. There was some issue in Committee about what he had actually said on this topic in the evidence that he gave to the Public Bill Committee. I quote a paragraph from that evidence:

“Quite rightly, a number of groups and individuals have said to us, ‘We may have practically everything. We just need to change the nature of the evidence and it won’t take long. You surely wouldn’t refuse us consent on that basis?’ So we have an exception that allows us to apply the threshold test—is there enough for reasonable suspicion and do we anticipate that, within a reasonable period, the evidential gap, as it were, could be plugged? There would then be sufficient evidence for a realistic prospect of conviction. That prompts the question, what is a reasonable period? It seems to us that it is probably best measured in the period between the application for arrest and the likely time that the Attorney-General will consider consent, because that is the existing window. That is the only period that can sensibly be used for that purpose”.—[Official Report, Commons, Police Reform and Social Responsibility Bill Committee, 20/1/11; col. 125.]

In Committee, my noble friend Lord Carlile of Berriew asked whether my noble friend Lord Macdonald had consulted Mr Starmer before he put down this amendment. The answer is yes, he had. Since the proceedings in Committee, my noble friend Lord Macdonald has spoken further to Mr Starmer about the matter and has received an indication from the Director of Public Prosecutions that he may convey to the House that the position he expressed in his evidence remains his position. Those are the tests, as set out in the amendment, that he would apply in considering consent to any application for a warrant in a case of universal jurisdiction.

[Lord Carlile of Berriew]

Will my noble friend be kind enough to confirm that the Director of Public Prosecutions has not indicated his assent to this amendment?

[Lord Thomas of Gresford]

If my learned noble friend will control himself for a moment, I shall come to that question in due course. Mr Starmer has indicated that he would wish to apply a public interest filter to both the tests that are set out in the amendment. Unlike an ordinary prosecution, Mr Starmer would wish to consider the public interest question on the threshold test as well as the full code test. His view is, of course, accepted.

[Lord Carlile of Berriew]

I am sorry but that is not good enough. Will my noble friend now answer my question? He has left hanging in the air the possibility that the Director of Public Prosecutions has indicated his agreement to this amendment. Is that true or untrue? I believe that it is untrue. The implication should not be left hanging in the air. Perhaps my noble friend will bear in mind that I am exercising more self-control than his last few sentences possibly justify.

[Lord Thomas of Gresford]

I must admit, my noble friend has always been known for his self-control. We have known each other for 30 or 40 years. The simple answer to his question is that, as I explained a moment ago, the Director of Public Prosecutions wishes to include in the guidance that he proposes to give the public interest test, at the first part, in considering the threshold test. He has said that binding guidance to that effect—

Police Reform and Social Responsibility Bill

Debate between Lord Carlile of Berriew and Lord Thomas of Gresford

Thursday 16th June 2011 Lords Chamber

[Lord Thomas of Gresford]

I do not propose to ask the House to agree to this amendment tonight. This is the Committee stage. We shall consider the issue further. As I have already said, the criticisms so gently advanced to me by my noble friend have led me to believe that we might consider how to rephrase it in a way that would be more acceptable to the House.

[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.