Justice and Security Bill [HL]

Debate between Lord Falconer of Thoroton and Lord Woolf

Wednesday 11th July 2012 Lords Chamber

[Lord Falconer of Thoroton]

I hope that the noble and learned Lord, Lord Wallace of Tankerness, takes the same view of this Bill. I am grateful for what the noble Lord, Lord Lester, said and one can recognise that view around the House. I am not yet persuaded of the need for it, but it could be that the noble and learned Lord will persuade me. If there is a need for it, the question is then: what is the right course? In my respectful submission, neither the Government’s proposals nor the amendment quite get there.

With the greatest respect to the noble and learned Lord, Lord Woolf, who I agree with in relation to flexibility, in the light of the decision in the Al Rawi case I do not think it is possible simply to leave the position for the common law to develop. As I understand the Al Rawi decision, it is effectively saying, “You cannot have a closed material procedure unless the parties agree; and even then we are not sure”.

[Lord Woolf]

I was saying that PII should be left flexible. I was not suggesting that you could do without legislation.

Crime and Courts Bill [HL]

Debate between Lord Falconer of Thoroton and Lord Woolf

Monday 25th June 2012 Lords Chamber

[Lord Falconer of Thoroton]

I support the noble Lord, Lord Goodhart, in what he says but, as a matter of practicality, I recognise that we have to move on. The noble Lord, Lord McNally, is much loved around the House and a genuine supporter of sensible constitutional change. He was a significant supporter of the Constitutional Reform Bill in that he allowed it to go through in circumstances where it might not otherwise have gone through, so I have a particular personal reason for believing that the noble Lord is a supporter of constitutional change. It would be worth while if he could say something in response to the noble Lord, Lord Goodhart.

We are dealing with three tiers of part-time judge: first, the High Court of England and Wales; secondly, the Court of Appeal of England and Wales; and, thirdly, the Supreme Court, which is part of the UK judiciary. The average age at which persons are appointed to the High Court of England and Wales is between 45 and about 60. In the Chamber tonight, we have two former High Court judges. The noble and learned Baroness, Lady Butler-Sloss, and the noble and learned Lord, Lord Woolf, were both appointed at the age of 45, which is at the youngest end of the range.

In appointing women between the ages of 45 and 50, it is extremely likely that they will have caring arrangements. I know that from my own experience as someone at the English Bar and as someone appointing judges. The difficulty for people is in making a choice as to what they put as their priority. As the noble and learned Baroness, Lady Butler-Sloss, rightly said, the current attitude is that it is “full on” if you join the High Court and there are no dilutions. The consequence of that in relation to the High Court is that a significant pool of people who would otherwise be willing to be appointed is being lost. I know that from my own experience in appointing judges.

[Lord Woolf]

Perhaps the noble and learned Lord will forgive me for making this point. I am sure that his experience was similar to mine. Where a case was made by an applicant who needed special assistance because of personal circumstances, the system that we have had has always been flexible enough to allow us to make those special arrangements and they worked satisfactorily. We should acknowledge that and I suspect that the noble and learned Lord will endorse what I have said. If I have understood him correctly, he was indicating the contrary, although I am sure that he did not mean to.

Parliamentary Voting System and Constituencies Bill

Debate between Lord Falconer of Thoroton and Lord Woolf

Tuesday 8th February 2011 Lords Chamber

[Lord Falconer of Thoroton]

I have considerable sympathy with that view. If the Bill had said, “Let there be public inquiries and let the chair or the deputy chair of the Boundary Commission determine the right course and whether or not there should be a public inquiry”, I anticipate and understand that the Government would have been concerned about the delay that that might cause to the timing of the boundary review. We are prepared to enter into a scheme, whose structure is in effect proposed by the Government, that does its level best to ensure that the process will be over by 30 October 2013, in accordance with the fresh proposals now being made, so that the Government’s timescale would be met. That is why the Government have taken this approach.

In an attempt to reach a conclusion, the Government’s amendment, as amended by ours, would do what your Lordships’ House does very well—namely, improve the Bill in a way which is both a sensible solution and a product of compromise and good sense. I beg to move.

[Lord Woolf]

My Lords, the Government have moved a long way but, in my view, they have not moved far enough. Indeed, some of what they propose is not constructive in the way they intend. The Government’s proposals, if coupled with those put forward by the noble and learned Lord, Lord Falconer, would produce a much better result. This is very important for the public because the scale of the changes involved means that the public should have a proper hearing.

I am not surprised that the noble and learned Lord, Lord Lloyd of Berwick, asked what is the difference between a public hearing and a public inquiry. Normally a proper hearing involves the kind of matters to which the noble and learned Lord, Lord Falconer, referred. It is no use having a hearing if it does not serve its purpose. The great defect in the Government’s proposals is that they arrange a hearing following which the person who has to make the decision will not have an opportunity of having any more than a record of what has occurred in the hearing.

In times out of number within our legal system—whether it be in the form of a planning or any other inquiry—a hearing has resulted in an opportunity to be heard, which is then reported upon by a neutral and independent person, normally someone with skill and experience in the area in question. Here it is quite clear that, in the end, the Boundary Commission will have to make the decision and, on both proposals, its decision will be coloured by what has happened at the public hearing. However, on the Government’s case, the Boundary Commission will have only a written record. What is the purpose of having an oral hearing if there is going to be no more than that?

What should happen—I submit that this is what is intended to happen in the amendment of the noble and learned Lord, Lord Falconer—is that there should be included in the matters that go before the Boundary Commission the views of the person who is chairing the hearing. That does not mean, as was thought by the noble Lord, Lord Thomas—I say this with great respect—that there would be two decisions; there will be only one decision. The chairman will take great care to do no more than assist the Boundary Commission to reach its decision.

Those who have had the task of looking at many inspectors’ reports will know how a decision that is to be made by the Secretary of State is assisted by an inspector’s report. I anticipate that the chairman will say, “So and so was contended on behalf of X, but Y said so and so, which the Boundary Commission may think is the stronger argument”. The chairman might say, “The Boundary Commission may submit that this point or that point was not properly considered by X in giving his evidence”.

A multitude of situations could arise whereby that process could properly be dealt with by a report by the person who actually conducted the hearing. If that was allowed, you would avoid the frustration felt on the part of those appearing before the chairman that their words are apparently disappearing into the ether with no conclusion being given on them. I strongly urge the Government to think again objectively about what is proposed to avoid that situation, especially if they are concerned about delay.

The Boundary Commission can be given the task of reaching its final decision within a specific time. If, as the noble Lord, Lord Campbell of Alloway, suggested, it is given the power to control the chairman, it can ensure that there will be no undue delay, which would have the undesirable results on which the Government speculate. An important point is that there are provisions in the Government’s proposal for questions to be asked of those making oral statements to the hearing—I refer to paragraph 8 of new Schedule 2A, proposed in Amendment 39, where that is made clear. That comes very close to the procedure which would normally take place before someone such as the chairman at a public hearing, as that is normally known. Therefore, you have questioning only under the control of the chairman. Answers are given and you have—and should have—the views of the chairman on what has occurred. If that is not done, a very strange animal indeed will be produced.