Criminal Justice and Courts Bill

Lord Irvine of Lairg Excerpts

Monday 27th October 2014 Lords Chamber

[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.

[Lord Irvine of Lairg (Lab)]

My Lords, I will make a few remarks in support of the noble Lord, Lord Pannick, my noble friend Lord Beecham and the noble and learned Lord, Lord Woolf. In their consultation paper, which preceded the proposed changes, the Government acknowledged:

“Judicial review is a critical check on the power of the State, providing an effective mechanism for challenging the decisions, acts or omissions of public bodies to ensure that they are lawful. The Government will ensure that judicial review continues to retain its crucial role.”

So far, so good. Unhappily, however, to my mind the Bill fails to deliver on that pledge. I shall confine my remarks to Clause 70 but, as other noble Lords have demonstrated, it is only one example of many.

The judiciary is a vital component in our separation of the powers. Judicial review is indispensible in a democracy proud to be governed by the rule of law. It ensures that public bodies act according to law. They cannot be above the law. Ministers, who are politicians, often will be frustrated if their decisions are challenged or quashed, but that is an intrinsic aspect of government subject to the rule of law, as is the need for Ministers to be aware of their duty to comply with the law. A Government who are confident that their decisions cannot be readily challenged risk becoming a Government who no longer have to respect the rule of law. That is a risk that no Secretary of State for Justice, who also bears the title of Lord Chancellor and is under a duty to uphold the rule of law, should be prepared to countenance.

Clause 70 would enable the Government to escape the consequences of unlawful action if they could persuade the courts that it was “highly likely” that they would have taken the same action had they acted lawfully. The current legal position is that where a public body has acted unlawfully the court may in the exercise of its discretion refuse to grant relief if it is satisfied that the decision would inevitably have been the same had the public body acted lawfully. That discretion is very rarely exercised, for good reason.

Procedural failures are more than “mere technicalities”. It is important that decisions are made properly by those entrusted with them by Parliament or Ministers. Procedural protections are built into Acts of Parliament or statutory instruments because of the importance of participation in decision-making by those affected by decisions or by the public at large. If a decision is unlawful because a defendant has acted unfairly, failed to observe a consultation obligation imposed by Parliament or failed to follow a procedure prescribed by Parliament, the rule of law requires that a claimant should have a remedy. To hold otherwise runs the risk of unlawful administrative action going unremedied. To my mind, the current law gets it right. The only exception should be those exceptional cases where a defendant can persuade the court that the same decision would have been inevitable.

Clause 70 is likely to encourage decision-makers to ignore participation rights. Yet the failure to comply with procedural obligations results in worse decisions as the decision-maker will not have taken into account the full range of relevant material before making the decision. It also undermines public confidence in the decision-making process. Those who have had the right to be heard before a decision is made will feel a justified sense of grievance about the fairness and quality of these decisions.

Moreover, and perhaps more importantly, lowering the threshold to “highly likely” will require the court to second-guess government decisions. The court will be required to substitute for the decision that has actually been made the decision it thinks the Secretary of State would make if the evidence that the court has looked at had been looked at by him. That is entirely inappropriate because the role of the judiciary in judicial review is to examine the lawfulness of public decision-making, not to substitute its own decision for that of the original decision-maker.

Finally, law reports are littered with cut-and-dried cases that turned out to be nothing of the sort. The best known expression of this came from that distinguished judge, Mr Justice Megarry, in John v Rees in 1970. He said that,

“experience shows that that which is confidently expected is by no means always that which happens … the path of the law is strewn with examples of open and shut cases which, somehow, were not; of unanswerable charges which, in the event, were”,

completely “answered”.

The effect of Clause 70 is best summed up in the words of the senior judiciary of England and Wales in response to the Government’s consultation:

“A lower threshold than inevitability for the application of the ‘no difference’ principle envisages judges refusing relief where there has been a proved error of law and the decision under challenge might have been different absent that error”.

I agree. The threshold defined in Clause 70 would immunise unlawful decisions from challenge before the courts, and I say that it should be rejected.

Legal Aid

Lord Irvine of Lairg Excerpts

Thursday 11th July 2013 Lords Chamber

[Lord Irvine of Lairg]

My Lords, I, too, congratulate the noble Baroness, Lady Deech, on having secured this timely debate. I will confine myself to the impact of the Lord Chancellor’s legal aid proposals on judicial review.

The Constitutional Reform Act 2005 provides in Part 1 that the Act will not adversely affect,

“the existing constitutional principle of the rule of law, or … the Lord Chancellor's existing constitutional role in relation to that principle”.

The civil legal aid scheme supports the rule of law by making access to justice and the courts real. The Lord Chancellor himself has acknowledged that legal aid is,

“the hallmark of a fair, open justice system”.

I invite your Lordships to contrast that sound statement with the damaging effects, in practice, of his legal aid proposals on judicial review.

One is to refuse legal aid to those who do not meet a residence test—that is, those who have not been lawfully resident in the UK for 12 months—so no immigration detainee will be eligible for legal aid as, by definition, anyone in immigration detention is not lawfully resident in the UK. A second is to remove legal aid from a wide range of prison law cases. A third is to remove funding for cases assessed as having a borderline prospect of success—that is, most cases in public law.

Those changes will set the Government above the law in many areas. First, legal aid will no longer be available for those in immigration detention. The Home Secretary already has the power to deprive those individuals of their liberty by executive fiat, not court order. In 2012, more than 28,000 people were detained under immigration powers in immigration removal centres; many more were detained in prisons. Secondly, legal aid will no longer be available to destitute families with no immigration status who are waiting for a decision from the Home Office; nor, thirdly, to prisoners, who are wholly under the control of the state; nor, fourthly, to cases where foreign nationals have been murdered, tortured, or detained abroad by British soldiers.

I draw your Lordships’ attention to some recent decisions of our highest court in claims that could not in practice have been brought without legal aid but would not be eligible for legal aid under the proposals. First, there is the Lumba case in 2011, the leading case on the Home Secretary’s ability to detain individuals using immigration powers. The Supreme Court held that the Secretary of State was applying an unlawful policy when detaining foreign national prisoners, in that the real policy entailed a presumption in favour of detention without exceptions, whereas the published policy had a presumption in favour of release.

Secondly, there is the decision of the House of Lords in Simms in 2000, which held that Prison Service policy and instructions preventing prisoners from having oral interviews with journalists, even on questions of whether they had been wrongly convicted, were unlawful. That claimant would no longer be eligible for legal aid, as he will be excluded under the prison law reforms. Thirdly, in Al-Skeini in 2007, the claim arose from the deaths of six Iraqi civilians and the brutal maltreatment of one of them, causing his death. Each of the deceased was killed, and the maltreatment was inflicted by members of the British Armed Forces. That claim, which succeeded in the Supreme Court, could not be brought under the proposals, because the claimants would fail the residence test.

In his evidence to the Justice Committee in the other place on 3 July 2013, the Lord Chancellor admitted that the changes are, at least in part, ideological in nature. He asserted that matters relating to conditions in prison should be dealt with through a complaints system and a prisoners’ ombudsman. However, judicial review is a remedy of last resort: only those cases that have arguably not been satisfactorily resolved through the complaints system and the ombudsman ever get to court.

The effect of the reforms is to make judicial review in practice unavailable to many of those most in need of its protection. No doubt, the Lord Chancellor and some of his colleagues in government find judicial review an irritant, but the critical issue is whether the proposals will in practice take a wrecking ball to our constitution and the rule of law. I am sure that many of your Lordships share my deep concerns.

Human Rights Act 1998

Lord Irvine of Lairg Excerpts

Wednesday 12th October 2011 Lords Chamber

[Lord Irvine of Lairg]

While acknowledging the Minister’s own commitment to the Human Rights Act, are there not at least double standards at work, or worse hypocrisy, when the Prime Minister and other members of the Cabinet preach the virtues of human rights and respect for the rule of law abroad while trashing these self-same virtues at home?

[Lord McNally]

I think that those are rather strong words. I have said before that in a democracy where there is a separation of powers there can be a healthy relationship between parliamentarians and the judiciary, whereby parliamentarians can sometimes express concerns about how the judiciary has interpreted some of Parliament’s Acts and, likewise, the judiciary may occasionally pass an unkindly word about the behaviour of parliamentarians. As long as that is kept on a basis of mutual respect and due courtesy, it is a healthy way for a democracy to go.

European Convention on Human Rights

Lord Irvine of Lairg Excerpts

Thursday 19th May 2011 Lords Chamber

Moved By

[Lord Irvine of Lairg]

To call attention to the European Convention on Human Rights; and to move for papers.

[Lord Irvine of Lairg]

My Lords, my purpose is to dispel some of the many myths peddled about human rights. In fact it is the Conservative Party, not Labour, that can make the strongest claim to credit for the European convention. Its main proponents were Churchill, Macmillan and John Foster, with some Liberal and Labour support. Its principal author was David Maxwell Fyfe, the future Conservative Chancellor, Viscount Kilmuir. The convention was substantially the work of British jurists within a tradition going back to the Petition of Right of 1628 and our own Bill of Rights of 1689.

Britain became the first state to ratify the convention, on 8 March 1951, yet it was not until December 1965 that the then Government accepted the right of individual petitions to the Commission and the compulsory jurisdiction of the European Court of Human Rights at Strasbourg. Then for a long period, until 1993, both major parties were united in rejecting incorporation of the convention into our domestic law. That in itself was extraordinary, because it meant that our citizens could not argue for their convention rights in our own courts but had to take the long and expensive road to Strasbourg.

Then came the late John Smith’s seminal Charter 88 speech on 1 March 1993, committing Labour in government to incorporate. That translated into a 1997 manifesto commitment, and the Human Rights Act 1998, which began its parliamentary progress in this House, followed. Its purpose was to bring home to be enforceable in our own courts the rights contained in the convention. Our courts are of course closer to the traditions of our society, and through their judgments they can make a distinctive British contribution to the development of Europe-wide human rights laws.

To Conservative critics of the Convention and the Act, I recommend the recent short study by Norman and Oborne, Churchill’s Legacy: The Conservative Case for the Human Rights Act. They detail the history and debunk the myths. They emphasise that,

“A large element of the selling power of some British newspapers depends on their ability to break stories about the private lives of celebrities”,

and conclude that,

“it is unlikely that reform of the HRA would be on any political agenda, were it not for the potent advocacy of the most powerful media groups in the country”.

In Chapter 4, “Dispelling the Myths”, they accuse the media of a culture of deception about the Act since the media believe that they have an interest in its destruction because of its protection of privacy in Article 8:

“Any politician who denounces the HRA, however incorrectly, is generally guaranteed a round of applause from the press”.

They say that a politician who argues the contrary, “tends to get pilloried”.

Among the most controversial recent cases are those where the courts have granted injunctions to prevent the press publishing details of the private lives of celebrities. The Prime Minister himself has entered the fray, on the side of the press. Unsurprisingly, he has secured a good press. He said that the judges were creating a privacy law, whereas what ought to happen in a parliamentary democracy is that Parliament should decide,

“how much protection we want for individuals and how much freedom of the press”.

Essentially, the charge is that the judges are usurping the role of Parliament. This is either ingenuous or disingenuous; your Lordships can decide which.

There are two straightforward answers to the charge. First, the judges are under instruction from Parliament in the HRA to balance the right of respect for the claimant’s private and family life against the right to freedom of expression in Article 12, and of course the judges obey. The scales are weighed in favour of freedom of expression because the Act requires the courts to have particular regard to its importance. No other right is given this privileged status. We should remember that in those cases it is often not only the Article 8 rights of celebrities that are at stake but also those of innocent third parties, including children. There is typically no significant public interest in the disclosure of the peccadilloes of actors, footballers or reality television contestants, although that helps to sell newspapers. A prurient interest does not equate to a legitimate public interest. The weight that the courts give to freedom of expression is strongly illustrated by the recent Strasbourg ruling in Max Mosley’s case in favour of the media.

The second answer to the charge is that the Government could introduce tomorrow a freedom of expression and privacy Bill compatibly with the convention if they took their courage in both hands. Members of the other place would undoubtedly show huge interest in such legislation, equalled no doubt only by the inevitable wrath of the tabloids—so your Lordships should not be in the least surprised if no such legislation is ultimately brought forward. Far easier to go on berating the judges, however unfairly, for doing what Parliament has instructed them to do than to take the knock of legislation oneself.

I should not leave this subject without emphasising that the media have gained greatly from the convention and the Act: enhanced protection for journalistic sources; a dramatic reduction in the level of libel damages; and the right to report on a much wider range of court proceedings. However, I emphasise that when impartial courts hold the balance between privacy and freedom of expression, the media cannot expect to have it all their own way.

I move to another recent controversy—votes for prisoners—where misconceptions also abound. We have clear primary legislation in Section 3 of the Representation of the People Act, which prevents convicted prisoners being registered to vote. No other interpretation of Section 3 is possible. Although Section 3 was declared incompatible with the convention by the courts, voting claims brought by prisoners under the HRA were rejected on the grounds that Section 3 was clear and the sovereignty of Parliament must prevail. All that the European Court held was that our blanket ban should be reconsidered. However, as a result of the HRA, it will be reconsidered in the proper forum: Parliament.

Your Lordships should know that our blanket ban has put us out of step with a clear majority of the other states in the Council of Europe, most of whom, including Germany, France, Italy, the Netherlands, Portugal and Spain, allow some or all of their convicted prisoners to vote. In that context, it is surprising that the Prime Minister went as far as to claim that he felt physically ill at the prospect of giving the vote to prisoners. All that was held at Strasbourg was that the blanket ban was disproportionate because it applied irrespective of the length of the sentence or the gravity of the offence, and without regard to whether the prisoner had completed that part of the sentence relating to deterrence and punishment. At any rate, it is now up to Parliament, which will want to consider whether some opportunity to participate in democratic elections could help prisoners’ restoration to the mainstream of society.

Another example is the sex offenders register, a subject on which the Prime Minister and his Home Secretary have become so choleric that your Lordships should worry for their peace of mind. The antidote that I would prescribe is a strong dose of rationality. The Supreme Court recently considered statutory provisions that imposed on certain sex offenders lifelong notification obligations to inform the police of their whereabouts or foreign travel plans. The basic point was that they could not even apply for their names to be removed from the register, regardless of the rehabilitation that they might have achieved over many years. The Supreme Court made a declaration that the provisions were incompatible with the convention in the absence of a procedure that allowed an individual to apply to be taken off the register. It would be for Parliament to determine the criteria for success, when an application could first be made and who would decide. Alternatively, the Government are free, under the Act, to do precisely nothing, wait to see if it is taken to the Strasbourg court, and argue there why any review would always and for ever be inappropriate.

The Prime Minister and his Home Secretary joined in telling Parliament how appalled they were by the decision, with the Prime Minister adding that the decision was completely offensive and flew in the face of common sense, while the Home Secretary questioned its sanity. However, all that the judges were doing was applying the law. Surely, this intemperateness must stop. Respect for the rule of law underpins our democracy. That respect is not a commodity to be marketed away for perceived short-term political advantage. When it is, Ministers undermine respect for the rule of law and diminish both themselves and our democracy.

I greatly look forward to the reply of the noble Lord, Lord McNally, to this debate. On 18 March, the Ministry of Justice announced the establishment of an independent commission to investigate the case for a UK Bill of Rights. Its terms of reference follow the language of the coalition agreement—namely,

“to investigate the creation of a British Bill of Rights that incorporates … all our obligations under the European Convention on Human Rights, ensures that these rights continue to be enshrined in British law, and protects and extends British liberties”.

So, the European Convention will continue to be a guaranteed floor, but not a ceiling, for the protection of human rights in Britain. I congratulate the noble Lord’s party on these terms of reference. The commission provides an excellent opportunity for his party to put—if this is the correct expression—clear blue water between themselves and their coalition partner. I invite him to take this opportunity to confirm that the continued incorporation of the European convention rights into our domestic law is non-negotiable. I beg to move.

[The Lord Speaker (Baroness Hayman)]

The Question is that this Motion be agreed to.

--- Later in debate ---

[Lord McCluskey]

My Lords, first, I apologise to your Lordships and to the House for being out of order in seeking to intervene at an early stage, which was plainly the wrong time to do so. If I may, I will now put a brief question to my noble and learned friend Lord Irvine of Lairg—indeed, I hope it will also be addressed by the Minister. The noble and learned Lord referred in his speech to the judges doing what Parliament instructed them to do. He will recall, as the noble Lord, Lord Faulks, and the noble and learned Lord, Lord Scott of Foscote, and others reminded us, that when the clause that became Section 2 of the Human Rights Act 1998 was before Parliament, he and his fellow Ministers repeatedly advised the legislature that it meant what it said—the noble and learned Lord, Lord Scott of Foscote, has referred to this—that the courts of the United Kingdom had to “take into account” any relevant judgment or opinion of the Strasbourg court. Ministers, including my noble and learned friend, said that those judgments and opinions were not to be treated as a strictly binding precedent for the United Kingdom courts.

My question is this: is the noble and learned Lord—and is the Minister—able to reconcile that advice with certain recent judgments of both the House of Lords and the Supreme Court that hold that the UK courts had no alternative but to apply definitive judgments of the Strasbourg court? As the noble and learned Lord, Lord Rodger of Earlsferry, put it in a case in 2009, which was quoted with unanimous approval by the judges in Horncastle:

“Strasbourg has spoken, the case is closed”.

My question is: is that what Section 2 of the 1998 Act must now be taken to mean?

[Lord Irvine of Lairg]

My Lords, I believe the advice that I gave to the House at the time of the passage of this Bill was correct, but I am not going to be drawn into a commentary on subsequent decisions.

--- Later in debate ---

[Lord Irvine of Lairg]

My Lords, I thank all noble Lords who have participated in this debate, and thank many of them for their kind words. Meanwhile, I beg leave to withdraw the Motion.

Motion withdrawn.