Police, Crime, Sentencing and Courts Bill

Debate between Lord Garnier and Lord Judge

Lords Hansard - Part 1 & Lords Hansard - part one & Report stage
Wednesday 15th December 2021 Lords Chamber

[Lord Judge (CB)]

We all know that IPPs are a failure. They were abolished years ago. They are not available. Why on earth do we continue to keep people subjected to them, incarcerated, unless they are indeed dangerous.

May I take a completely trivial example? My daughter is in South Africa. She hit the red line four days after the new virus appeared. If she comes back, she is subjected—or was—to 11 days’ incarceration in a hotel, which is trivial compared to anybody in prison. That has changed and the red lines have gone. Is it really being suggested that those who were in a hotel, in quarantine, should now continue to be in quarantine although people coming in from South Africa will no longer be subjected to it? Of course not; it is completely daft.

I regret to say that I think the current situation is daft. We really must try to help the Government get rid of this absurdity and—can we also remember?—enable justice to be done to a large number of individuals.

[Lord Garnier (Con)]

I think the last point made by the noble and learned Lord, Lord Judge, needs to be said often and loudly. The noble Lord, Lord Blunkett—I praised him in Committee—was brave enough to admit that this form of sentence was wrong. My noble and learned friend Lord Clarke of Nottingham abolished it when he was Secretary of State for Justice, but we are left with what I may call the detritus of this admitted mistake. What we must do now is clear it up. We have got rid of the sentence. As the noble and learned Lord said, it is no longer available. We are left with, as the noble and learned Lord, Lord Brown, just pointed out in a highly effective speech—and in Committee —hundreds of people remaining in prison long beyond their punishment tariff and others, as my noble friend Lord Moylan pointed out, on licence well beyond any sensible period.

I am a signatory to my noble friend’s amendment but, as I said in Committee, I could have signed any of the amendments to do with reforming IPPs. I say, as both a Member of this House and as a fellow trustee of the Prison Reform Trust with the noble Lord, Lord Bradley, that we have got to the stage now where nobody who has sense of justice or common sense could defend what we now have. All we are looking for is a way in which the Government can complete the task that my noble and learned friend Lord Clarke began when he was Secretary of State for Justice and which for some reason has not been completed in the eight or so years since the sentence was abolished.

Now is the time. If we are to have a Bill as huge as this, let us make good use of it by adding into it just provisions that do justice and which prevent men and women being incarcerated or on licence still for no very good reason. If I may say so, let us also get rid of this provision that is not doing the victims of their crimes any good either. Victims of criminal activity want justice both for them and for the defendant, but this is not justice for either the defendant or the victim.

Courts and Tribunals (Online Procedure) Bill [HL]

Debate between Lord Garnier and Lord Judge

Committee: 1st sitting (Hansard): House of Lords
Monday 10th June 2019 Lords Chamber

[Lord Judge (CB)]

My Lords, since Second Reading, when I argued in support of these amendments, I have had a meeting with the Minister and, notwithstanding his customary courtesy, I was unable to persuade him of the good sense of these amendments. Listening to his response to today’s debate, it is quite obvious that we cannot expect a Damascene conversion on his part, but did I detect the tiniest shining light—the dawning of a better understanding of why these amendments should be made? If I detected a light, it was only a faint one and I shall certainly not turn the lights off. If we are talking about dawns, nor shall I allow any clouds to obscure my meaning.

We have discussed the issues and I shall not go over those that have already been ventilated in our debate. Lord Justice Briggs’s report is admirable and I continue to support it, but it was a report directed to a small feature of the system of litigation. The Bill, as has been said but is worth repeating, has the potential to cover every single aspect of the administration of civil justice, every single aspect of the administration of family justice and the entire tribunal system. It is difficult to exaggerate the level of interference with the administration of justice in all the areas that the Bill would give to the Lord Chancellor. As I say, the issues have been addressed and I shall not repeat them, but I have heard the Minister say on a number of occasions, “It’s all right because there is the committee with a judicial involvement”. Indeed, in answer to an earlier debate, he pointed out the happy differences between this committee and the Family Procedure Rule Committee, the Civil Procedure Rule Committee and so on. But there are two that he did not grasp and they are the ones that matter.

This is a committee on which the judiciary will be in a minority and it is the first such committee. It will be a committee of which the majority of the members will be appointed by the Lord Chancellor. Let us pause and think about that. The majority will be appointed by the Lord Chancellor and presumably it will be for him to dismiss them if he disagrees with them. That is consistent with the pernicious modern tendency, which I have go on about before, of our being asked to vest greater powers in the Executive—in this case in one Minister. We have become inured to it and it is particularly incongruous in the context of the administration of justice, where, as a matter of constitutional necessity, everyone accepts that the powers should be separate.

Since the constitutional reforms made in the early 2000s, ultimate responsibility for the administration of justice is vested not in the Lord Chancellor or in any other Minister of the Crown, but in the office of the Lord Chief Justice, an office I had the privilege to hold. At the time, none of the judges was urging any such change; we did not want to get rid of the Lord Chancellor. The noble and learned Lord, Lord Mackay, was not the Lord Chancellor at that time, but we were very happy with who we had had and did have. It came as a complete surprise to the judiciary, therefore, but it has come, and the consequence is this: a reduction in the responsibilities of the Lord Chancellor for the administration of justice, and a significantly enhanced responsibility of the Lord Chief Justice. He is responsible for what happens in the court system, and that must be understood when we are contemplating this Bill.

With one important exception—important for a reason to which I shall come—under the Bill in its present form, in the discharge of his responsibility for the day-to-day running of the family courts, the civil courts and, to the extent that he has responsibility over the tribunal system, the tribunal courts, the Lord Chief Justice is granted what is pushed as a “privilege” to be consulted by the Lord Chancellor if the Lord Chancellor and his committee have any proposals for change. However much the noble and learned Lord, Lord Keen, may be frightened of what the Lord Chief Justice may say, a political Lord Chancellor disagreeing with the Lord Chief Justice can simply disregard whatever he may say. It would for years, no doubt, be done with appropriate courtesy—and I hope that, in years to come, it will always be done with appropriate courtesy—but there is no guarantee even of that. But pause here because, after these changes have been implemented, the responsibility if they fail to work will fall not on the Lord Chancellor but on the Lord Chief Justice—even if, when consulted, he or his predecessor argued against them. In those circumstances, limiting the role of the Lord Chief Justice to consultation is absurd.

The change in the relative responsibilities of the Lord Chancellor and the Lord Chief Justice has been understood and acknowledged in earlier arrangements. Thus, for example, when the question arises of whether court proceedings in England and Wales may be televised—and, if so, which part of such proceedings may be televised and what damage there may be, if any, to the administration of justice depending on what proceedings are televised, or how the administration of justice may be advanced if part of the proceedings are televised—that decision is not vested exclusively in the Minister, who may after all have political reasons for his decision; it requires the concurrence of the Lord Chief Justice. On disciplinary proceedings, if a judge has misbehaved or misconducted himself or herself, there is a requirement for concurrence between the holders of the two offices. What is more, the Bill itself, in Clause 6(2), recognises circumstances in which concurrence is appropriate. The amendments proposed to this and the remaining clauses are therefore entirely consistent with a provision in the Bill and with other provisions outside it.

Concurrence of the Lord Chief Justice, and where appropriate the Senior President of Tribunals, is necessary surely when an issue affects the administration of justice on a day-to-day basis. That is what the Bill is about: the administration of justice, day to day. Questions of how proceedings in whichever area of law may be conducted and how they may not; whether, and if so in what circumstances, they must be conducted digitally or on paper; whether and how the interests of litigants who are not proficient are upheld, as we discussed earlier—that is all part of the day-to-day requirement of what goes on in our courts. There is one final consideration, which always seems to me to matter hugely: whether the unsuccessful litigant leaves court satisfied, not of course with the result but with the idea and conviction that he or she has been heard and understood. “Even if the judge got it wrong, he listened to me”, seems a very important part of the administration of justice. These are all questions for the day-to-day search for justice.

In the context of the Bill, which proposes at some stage along the line of history to give wide powers to a Minister, consultation alone is a meaningless handout from the Executive to the judiciary. More importantly, alone it offers no sufficient protection to the citizen against inappropriate Executive interference with the administration of justice. I beg to move.

[Lord Garnier]

My Lords, in agreeing with the noble and learned Lord, Lord Judge, given his anticipation of beneficial light emerging from the Front Bench, I caution him that, as so often happens in these matters—particularly when the Government are giving something away, such as consultation—the light at the end of the tunnel ends up being the light of the approaching train. I urge that we temper our enthusiasm for any blandishments from the Government—not that my noble and learned friend on the Front Bench would ever be guilty of offering anything as vulgar as a blandishment.

The noble and learned Lord, Lord Judge, has made all the points that need to be made and has made them better than I possibly could. However, if one strips away the words “the Lord Chancellor” and replaces them with the words “Secretary of State”—and Clause 6(2) condescends to do that, because clearly the Lord Chancellor cannot agree with himself and has to agree with his schizophrenic self, the Secretary of State—and if one strips away the ancient legal title and office of Lord Chancellor, one finds that one is in fact dealing with a political Minister in a spending department at the Ministry of Justice and that he or she will be placed under all the pressures of both self-interest and Cabinet responsibility that go with being in a spending department. If it is inconvenient for the Chancellor of the Exchequer to allow the Secretary of State to agree with the Lord Chief Justice, he will disagree with the Lord Chief Justice. We should not be under any misunderstanding about that.

In the what must now be 20 years since the removal of the office of Lord Chancellor as head of the judiciary—and I am standing behind one of the finest exemplars of that office—with that position having now gone to the Lord Chief Justice, the metaphorical gap and indeed the actual distance between the law and Parliament has grown immeasurably. The understanding between the law and those who administer it and politicians has grown immeasurably. One only has to look at the record of some Secretaries of State for Justice who have succeeded my noble and learned friend and who do not have that intimate knowledge of the administration of justice to understand the difficulties and dangers that the noble and learned Lord, Lord Judge, anticipates—and have happened already.

While I support the sensible policy behind the Bill, all kinds of little niggles pop up from time to time which will destroy its purpose. They will make it less beneficial for the public good than it would otherwise be, were the suggestions made in the previous debate by the noble Lord, Lord Marks, and in this current debate by the noble and learned Lord, Lord Judge, taken into account. As a supporter of the Bill and the Government, I urge them not to allow themselves to be swept down the river of consultation when the river of agreement is a much safer journey to take.

Trade Bill

Debate between Lord Garnier and Lord Judge

Report: 1st sitting: House of Lords
Wednesday 6th March 2019 Lords Chamber

[Lord Judge]

My Lords, this amendment has very little to do with trade as such, but it raises a constitutional issue. If you looked at those supporting me on this amendment, you might even think that this is a bit of a geeky constitutional issue. It is not. All three of us are members of the Constitution Committee. We speak on our own behalf but feel it essential to draw the attention of the House to what we believe to be a total misunderstanding of the purposes of Explanatory Notes.

The misunderstanding arises in this way. Under the Bill, Clause 2(5) provides the regulation-making powers that may—forgive me for underlining this—among other things, “make provision”. Then there are paragraphs (a), (b), (c) and (d); paragraph (d) is about the penalties. We also looked at the Explanatory Notes. I wonder how many of your Lordships have recently looked at the front page of Explanatory Notes any Bill. I will read parts of them:

“These Explanatory Notes have been prepared by the Department … in order to assist the reader of the Bill and to help inform debate on it. They do not form part of the Bill and have not been endorsed by Parliament”.


I do not suppose that a single Member of the House is surprised by that because, constitutionally, it is impeccable. The Explanatory Notes do not form part of whatever legislation may at some future date be enacted by Parliament.

Faced with the wide-ranging regulation-making power, and that assertion in the Explanatory Notes, can we look at the Explanatory Notes themselves? Paragraph 59 —I will not read the first part—in unequivocal terms says that:

“Subsection (5) does not allow for regulations to make or extend criminal offences, charge fees, amend primary legislation other than retained EU law, or create new public bodies”.


The Constitution Committee produced a report on this that expressed some concerns. Noble Lords may remember that in the EU withdrawal Act there was an absence of safeguards, but eventually—through the efforts of Members of this House—safeguards were put into it that prevented the use of delegated powers to impose or increase taxation and fees, to create a relevant criminal offence, or to establish a public authority. That was the step. The Constitution Committee then looked at the provision in relation to subsection (5), to which I have referred. The committee noted that the Explanatory Notes contained the assertion that the Government were not interested in the worrying provision for creating criminal offences and the like, but that this was not stated in the Bill. The committee then pointed out what subsection (5) extends to and recommended that the Government introduce an amendment to include in the Bill the restrictions on the use of the Clause 2 powers set out in the Explanatory Notes. That is what this amendment is designed to achieve.

There is something rather strange about this. You win some, you lose some. If you lose, you come to the House to ask the House to look at it. In a sense, that is what I should do. However, a more important issue has arisen in relation to the response of the Minister, who in effect is saying, “Look, there is nothing to worry about—what are you getting so concerned about? Just read the Explanatory Notes. That is all you need”. Lest you think that I am exaggerating, let me read the words:

“we believe that the explanatory notes to the Bill, which explain the purpose of the provisions contained in the legislation, is the most suitable document to outline the restrictions to the use of the clause 2 power”.

In other words, the issues which were raised as being of concern to the Constitution Committee, and which were referred to in the Explanatory Notes showing that the Government did not wish to have the powers that would have been troublesome, were simply to be found by looking at the Explanatory Notes. That is a troublesome approach to these issues. As I am aware, it is new: “Look at what the regulations do not contain and you’ll find that in the Explanatory Notes”. It seems a rather strange way of going about legislation.

The letter from the Minister was followed by a reference to an observation by a former Law Lord—who sadly is no longer with us, the highly respected Lord Steyn—based on a decision of the House of Lords called Pepper v Hart in which it is said that he allowed for the possibility of looking at Explanatory Notes in exceptional circumstances. I would argue that that was not as an aid to construction but in effect to say, “If the Executive have said this, you can draw that to our attention while we resolve the issue”.

Pepper v Hart is a troublesome case. Perhaps I may summarise what it is meant to mean in the following way—hopelessly inadequately in view of the presence of some noble and learned Lords here. It means that you can look at what has gone on in the House if the legislation itself is unintelligible. Legislation should not be unintelligible; it should be intelligible. At this stage when we are looking at this legislation, if it is not, we should make it so.

On how far Lord Steyn went about allowing for examination of Explanatory Notes, if it offered a diminution of the principle that Explanatory Notes are not, never were meant to and never should be treated as a legislative provision, I say with great respect to Lord Steyn that I think he got it wrong. I do not believe that that was what he was saying, but if he did it is wrong. We surely must not countenance the arrival of a pernicious new form of legislation, the Explanatory Note. We have enough trouble with guidance. Guidance is a seriously problematic source; it sort of hands over power to the Executive, but at least when we do that we have listened to the debate, have decided that that is the right way to approach the problem and have legislated accordingly. In relation to Explanatory Notes, there has never been a debate; there has never been anything. This comes from the department. The department tells us what the department thinks it wants. It cannot possibly be a guide to what we in this House or in the other place decide that the legislation should be. But we will now look at the department’s own Explanatory Notes to decide whether a provision which is an important safeguard against regulations creating criminal offences, imposing fees, amending primary legislation or creating new public bodies should be found. It is a constitutional absurdity. I beg to move.

[Lord Garnier]

My Lords, if the noble and learned Lord, Lord Judge, thought that his thinking was inadequate compared to that of Lord Steyn, it is the only inadequate thing that he just said. I rise briefly to encourage him in his arguments and to encourage the Government to understand that it is not only on the Cross Benches and on the Liberal Democrat Benches that the concerns that he has expressed can be found.

I want to look at Clause 2 through the lens of Amendment 3A, because it gives both United Kingdom Ministers and devolved Administration Ministers the power to make regulations that make provision among other things to modify primary legislation and impose penalties, as the noble and learned Lord, Lord Judge, pointed out.