Armed Forces Bill

Debate between Lord Hodgson of Astley Abbotts and Lord Thomas of Gresford

Wednesday 27th April 2016 Lords Chamber

[Lord Thomas of Gresford]

My Lords, the courts of this country have long had extra-territorial jurisdiction to try in this country offences of murder, manslaughter, piracy, treason and certain other, more obscure offences. However, they do not have extra-territorial jurisdiction for sexual offences. Amendment 11 would give the courts of this country jurisdiction to try somebody in the ordinary civil courts, if that person is subject to service law or is a civilian subject to service discipline, who commits an act in a country outside England and Wales that would be a sexual offence. Various sections from the Sexual Offences Act 2003, which I have quoted, relate to serious sexual offences. That would mean that a sexual offence committed abroad would be subject to the protocols in this country that now exist between the Director of Public Prosecutions and the Director of Service Prosecutions and could be tried in the ordinary civil court, as opposed to the courts martial. Courts martial are now established courts, with centres at Bulford, Catterick and Colchester. A person who commits a sexual offence who is subject to service law abroad now could be brought to this country and tried for the sexual offence by way of court martial but could not be tried in the ordinary courts. That is the purpose of Amendment 11: to extend extra-territorial jurisdiction to cover sexual offences.

As for election for trial in the UK, my amendment suggests that such a person, who is subject to service law and has committed an extra-territorial offence that could be tried by a court martial at Bulford, Catterick or Colchester, could elect to be tried in the ordinary courts if he or she so wished. Of course, he or she would have to take advice on what was more appropriate, but it would mean that he or she would have the opportunity to be tried not by officers but by 12 ordinary jurors in this country. I beg to move.

[Lord Hodgson of Astley Abbotts (Con)]

Will the noble Lord, Lord Thomas, clarify one thing? I am a member of the Secondary Legislation Scrutiny Committee and this past week we have been looking at the agreement with the Government of Kenya for the provision of two training areas. There are various changes taking place within that, and one is that all Armed Forces personnel going there will have to obtain visas in future. How, then, does what the noble Lord proposes tie in with the provisions of Kenyan law for people who are in that country? Does our military discipline law come ahead of Kenyan domestic law, and how does that tie in with what he is proposing in terms of its extension and its further extra-territorial application?

[Lord Thomas of Gresford]

When British service personnel operate abroad and are stationed abroad, there is an agreement made with the Government of that particular country. A protocol is brought about whereby decisions can be made according to the machinery agreed in that protocol about whether a person committing an offence in, for example, Kenya, should be tried by the local courts or by court martial. Obviously, that would apply to all cases of offences that are committed in Kenya which would be contrary to its law. In all probability, as has happened in Germany, very much would depend on whether the local population was involved. For example, under a protocol with the Kenyan Government, the rape of a Kenyan woman would almost certainly be tried in a Kenyan court. On the other hand, if it involved personnel who were on duty there together, it would almost certainly be dealt with under the protocol by the service disciplinary system. I am proposing that if it amounts to a serious sexual offence, or an extra-territorial offence such as I have described, it could be heard in this country.

Justice and Security Bill [HL]

Debate between Lord Hodgson of Astley Abbotts and Lord Thomas of Gresford

Wednesday 11th July 2012 Lords Chamber

[Lord Hodgson of Astley Abbotts]

Amendment 45 takes us to Clause 6(2), which begins:

“The court must, on an application under subsection (1), make such a declaration”.

My amendment seeks to replace “must” with “may”. I intend to be quite brief and to call up very shortly the heavy artillery of my noble friend Lord Thomas of Gresford in support. There have been, of course, many references to the key role of judicial discussion in the operation of CMPs under Clause 6. This amendment simply seeks to ensure that the Government’s claim that a judge will have the final say on whether a CMP takes place is a reality. As drafted, the Bill does not seem to do this. While it gives the judge the last word, the reviewer of terrorism legislation has said that:

“The only difficulty is that that word is dictated to the judge by the Secretary of State”.

The special advocates have warned that the Bill creates a statutory straitjacket for judges, and we came across this earlier this evening. Martin Chamberlain said this in his evidence to the Joint Committee on Human Rights. He said that a key safeguard that had been promised—enabling a judge to have the final say on when secret proceedings are needed—was missing from the draft Bill. He went on to say that,

“in fact the position is that the judge is required to accede to the Secretary of State’s application for a Closed Material Procedure—the word ‘must’ is used—if there is any evidence at all whose disclosure would be contrary to the interests of national security. So, there is no ability for a judge to say, ‘I think this is the type of case that could perfectly fairly be tried using normal Public Interest Immunity rules’”.

Finally, he said,

“you are going to be giving them”—

that is, the judges—

“a statutory straitjacket that requires them to ensure that nothing is disclosed contrary to the interests of national security … there is to be no balance between national security on the one hand and fairness on the other”.

I argue that we should replace “must” with “may” to once again improve judicial discretion. I beg to move.

[Lord Thomas of Gresford]

My Lords, I support this amendment. I have already made the point that the procedures of the court should be controlled by the judge and not by the Secretary of State. The words “rubber stamp” have been used on a number of occasions, not least by my noble friend Lord Lester, in relation to these provisions. It is a rubber stamp when one combines the provisions in Clause 6(2) with what the judge must do in determining the application, under the provisions of Clause 7(1)(c). This is a point that the noble and learned Lord, Lord Falconer, made in his original submission on an earlier amendment, and we have not followed it up very much. Clause 7(1)(c) states:

“that the court is required to give permission for material not to be disclosed if it considers that the disclosure of the material would be damaging to the interests of national security”.

Now, who gives evidence about the interests of national security? It must be, by virtue of the nature of the proceedings, the uncontested evidence of those who are responsible for security. What exactly is meant by the interests of national security is something that I wish to pursue, perhaps at the next sitting of this Committee. In some definitions, it can refer to economic interests, and there are all sorts of others, as well as simply terrorism, which is the context in which we think of national security at the moment. We will need a better definition in due course.

The use of “must” in this clause reduces the judge’s power virtually to nil. The grounds put forward by the Minister may be reduced to the interest of national security, but as I have said, as the Bill is drafted those interests will be defined by the Minister himself. Clause 6(3) instructs the judge to ignore two very relevant considerations: first, that there may be no requirement on the Secretary of State to disclose; and, secondly, that the intercept evidence which the Secretary of State intends to put before him is inadmissible in the very proceedings he is supposed to be judging. If intercept evidence is inadmissible in open court, surely it is inadmissible in closed court. Intercept evidence would have to be normally regarded as inadmissible in such circumstances.

The word “may” will give the judge a discretion to decide what is proportionate and necessary in all the circumstances that come before him. It will give the judge control and power to manage proceedings, and the ability to decide how the procedure will be carried out and which type of procedure would be more appropriate. It will give the flexibility that I talked about in relation to the amendment that we debated earlier.

Land Registration (Network Access) (Amendment) Rules 2011

Debate between Lord Hodgson of Astley Abbotts and Lord Thomas of Gresford

Tuesday 5th July 2011 Grand Committee

[Lord Thomas of Gresford]

My Lords, the important point that should be appreciated—I am sure that it is—is that when a title is registered, it is an absolute title. It can be obtained by fraud or by any other means, but it is an absolute title, once registration has been granted. That means that the person who owns that title can sell it on and deal with it as if it were his own. Any issue as to how that registration has been obtained is left for litigation. Therefore, it is crucial that the integrity of the register is maintained. So much depends on trust. We trust that the people who make these applications will do so honestly, with proper consideration of all the issues and in the interests of their clients. That is why we have all these rules, which endeavour to ensure that the very competent staff of the Land Registry are not deceived by applications from outside.

What is this all about? It brings the alternative business structures system into the position of being an authorised applicant to deal with the Land Registry. I have expressed my views on these alternative business structures so often that I sound a little like Cassandra. However, I foresee trouble. If there is trouble in the future, it is not the lawyers who will suffer; they will do very well. It is the consumer and the customer who will suffer.

There is a lack of confidence in the way that this has been put forward. The summary of the impact assessment says on page 3, under the heading “Other key non-monetised benefits by ‘main affected groups’”:

“The proposals will avoid the potential costs to Land Registry customers outlined in the base case by ensuring only persons authorised to prepare and make applications relating to land registration are able to do so”.

That states the obvious; it is the position at the moment. The summary goes on:

“Land Registry customers may further benefit if the new definition of ‘conveyancer’”—

that is, these rules—

“leads to better quality conveyancing practices compared to current levels”.

Why it should lead to better conveyancing practices than the current system, under which conveyancing is carried out by qualified lawyers or managing executives, I do not know. The summary continues:

“Ensuring ABS firms fall within the definition should also lead to increased competition in the conveyancing market, which may provide efficiency benefits for society, and direct benefits for Land Registry customers in the form of lower prices and/or increased choice”.

The sort of situation that I envisage, particularly in a tight housing market, is that developers will offer a conveyancing service, or an ABS. They will have an interest in the outcome of the conveyance of their own homes and access to the registry. They may act for both parties. All the checks and balances that have developed over the years to protect the consumer and householder will be weakened.

I have had my usual rant on this subject, so I shall leave it at that. I cannot say that I welcome this measure.

[Lord Hodgson of Astley Abbotts]

My Lords, I had not intended to intervene on this matter but since “network access” appears in the title of the rules that we are discussing, I seek reassurance from my noble friend about the checks that are being made to ensure that those who are not authorised do not obtain access. Something that has recently come to public notice is the ELMER database, which is operated by the Serious and Organised Crime Agency. This is where reports of suspicious activity are collected for purposes of investigating money laundering. It appeared that the rules were perfectly tightly drawn, and that only SOCA and police forces throughout the country could obtain access to the information that is contained there. There are now 1.2 million records on the suspicious activity report database. Subsequently, now it transpires that actually all sorts of social security departments and other operations are able to get into the database. Given the importance of this, and the critical nature of the functions being carried out, it would be good to know that careful checks are being made to ensure that people who are not entitled to access do not get it.