Terrorist Offenders (Restriction of Early Release) Bill

Lord Judge Excerpts

2nd reading & 2nd reading (Hansard) & 2nd reading (Hansard): House of Lords
Monday 24th February 2020 Lords Chamber

[Lord Judge (CB)]

My Lords, we are being required to legislate urgently to remedy an emergency created, at least in part, by overcomplicated sentencing law. I deeply regret the rush, and my support for the Bill —I do support it—is predicated on the premise that, before long, we shall be taking an entire look at the whole spectrum of sentencing: how it operates, how it is legislated for and how it will work. However, as I emphasise, I should prefer specific problems with sentencing to be considered in the context of time and measured reflection. We do not have that time; I am satisfied that recent events have shown that we are facing a real threat of catastrophic damage to public safety, not excluding multiple murders, by individuals who have been convicted and who, even as they strike, are still subject to prison sentences for terrorist-related offences. In my opinion, although this legislation does no more than postpone release dates—which will come and will have to be addressed, and we are not addressing that issue—and, even if we had the time to work towards a better solution to this very real problem, the interests of public safety must come first, particularly in the context of retrospectivity and the expectations of convicted criminals.

I want to put the issue of retrospectivity into some sort of context. There is no right of a convicted criminal to be released after he or she has served the prescribed part of their sentence; it is only lawyerly talk, but the Acts of Parliament that deal with this refer to a “duty” on the Secretary of State to release the prisoner on licence after he or she has completed the defined proportion. The release date itself has absolutely nothing to do with good behaviour or earning remission. It is automatic and time-based. The proposed legislation is retrospective but, to put it in context, it does nothing to remove anything that the criminal personally has earned.

It will not help the House if I try to sort out the differences between—wait for it—the extended determinate sentence, the standard determinate sentence, the sentence for an offender of particular concern, extended sentences, minimum terms of imprisonment and so on. There is a whole cacophony of this sort of language. What matters is the complexity that results. Some prisoners are released after half their sentence; some are released after half their sentence, provided the Parole Board has had a look at the case and recommends it. Some prisoners are released after two-thirds of their sentence, and some do not get released until the minimum term has been completed. There is no axiomatic period that works in relation to release and nothing sacrosanct about a half-time release. The legislation has come and gone, and gone and come, covering these sorts of issues.

Those released are released on licence. Their sentence is not completed until the full period of that sentence has elapsed. So, under the present legislation, release is more or less automatic, depending on which category it comes under, but it is conditional. Among other features worth underlining are the responsibilities of the Parole Board, the way periods of remand spent in custody should be credited against the sentence, the power to release early—even earlier than the statute requires, for example, on compassionate grounds—curfews and the nature and terms of licence conditions for individual prisoners, which have always been regarded as administrative responsibilities. They are administrative responsibilities to be carried out by the Secretary of State; they are not judicial decisions, and no reference is made to the sentencing judge about how those responsibilities should be exercised.

In the meantime, the sentence of the court remains in force and, as I said, there are a number of different restrictions. It is possible—we cannot afford it, but as a matter of law it is possible—to impose what used to be called control orders and are now called TPIMs. I had to remind myself that they are terrorism prevention and investigation measures, which may be imposed on a prisoner at liberty under licence. For an unconvicted person, those conditions are usually regarded, rightly, as a massive interference with their ordinary civil liberties. Can we be clear that the liberty of a prisoner released under the statutes is not the same liberty that we enjoy as we walk up and down the streets? More importantly—or no less importantly—that licence may be revoked by the Secretary of State. The offender may then be recalled to prison without a further trial to serve the rest of the sentence.

Of course, the Secretary of State cannot whimsically disapply the relevant statute because he does not like someone, and, of course, the criminal will expect to be released. Since 2012 the sentencing judge has been required to tell the prisoner that the sentence is X, which means he will serve Y, and so on. By the time the prisoner has been in prison for, say, three days, five days or a week, he or she will have been told the expected date of release. That is the retrospectivity concern. It is a serious issue that I do not dismiss, but we have to put it in a context that I have endeavoured to describe. What I find completely extraordinary is that, although rightly, the Secretary of State may revoke the prisoner’s licence and recall him to prison for breach of any licence conditions, and may—if not, why not?—do so if his behaviour while on licence gives rise to a reasonable suspicion that he is engaging in activity that represents a threat to public safety, the duty to release once the requisite custody has expired appears in practice to be absolute, or at least seems in practice to be treated as though it were. Can that be correct? If so, is it not obviously wrong—indeed, absurd—that if the deradicalisation process for an individual convicted of terrorist offences has plainly not had the desired effect, it is nevertheless the duty of the Secretary of State to release him?

I shall illustrate what I mean. In relation to the Streatham attack, we have been told that the perpetrator was subject to close police scrutiny, as I understand it, immediately or almost immediately after his release, presumably because he was believed—rightly, as it turned out—to pose a serious risk. There may have been many reasons why he was not recalled to custody. One may have been that his release had been so recent that it could have been argued on his behalf that the Secretary of State had failed to comply with the duty to release. To the extent that the answer does not compromise intelligence or create any embarrassment to anybody, the simple question is: if the Secretary of State was lawfully entitled not to release him, why was he released? If she was not entitled, given all the evidence we now know, why on earth not?

The legislation is complex and difficult. I have nothing to say about it that suggests that I am entirely happy with it, but we have to look at recent disasters, which have provided disquieting evidence that the deradicalisation processes in prison have been far from successful and that convicted terrorists, still subject to the sentence imposed by the court, have immediately resumed terrorist attacks while on licence. There is an immediate danger; we have to address it. I support the Bill.

[Lord Soley (Lab)]

My Lords, I will speak briefly on the question not of law—which I shall leave to others who have more knowledge than I have—but of dangerousness. I have dealt with this quite a bit, albeit 40-odd years ago when I dealt with an awful lot of serious offenders and dangerous people. At times I got predictions right and at times wrong, but the important point is that we need to look at—

Sentencing (Pre-consolidation Amendments) Bill [HL] (Law Commission Bill)

Lord Judge Excerpts

2nd reading & 2nd reading (Hansard): House of Lords & 2nd reading (Hansard)
Tuesday 11th February 2020 Lords Chamber

[Lord Judge (CB)]

My Lords, this process has been moving at a speed that would attract the unrestrained admiration of an indolent sloth—and an indolent sloth has no interest in the administration of justice in England and Wales.

As the Minister set out, this process began in 2014. In fact, even before that judges had been trying to persuade the ministry to let a code be created. The final report on the draft code became available in November 2018. As the Minister has said, it has been a work of astonishing complexity—a prodigious effort by the Law Commission, led for this work by Professor David Ormerod. Unsurprisingly, it has been greeted enthusiastically, rightly, by anyone with any real experience of the problems, not of sentencing decisions as such—although any judge who passes sentence will tell you that those decisions are difficult enough—but of sentencing technicalities; statutory pitfalls; optimistically drafted regulations; regulations that are drafted, come into force and disappear after three or four months; and, with no disrespect to Parliament, general parliamentary tinkering with the sentencing processes. This has resulted in a morass of confusion.

Every Government, of all colours, going back years, have added their own ingredients and then left it to the courts to sort out the puzzle. Sentencing decision is, however, not a game. Every single case involves a defendant, and from time to time people forget that every case involves a victim. The sentence matters to the victim, too, and it should be right. In every sentencing decision—of which there are tens of thousands every year—the first question is: “What are the powers of the court?” The second question that should be asked is: “What are the legislative requirements and constraints that apply to this case?” The decision of the court should always be lawful, but too often, because the relevant law is obscured by technicalities and legislative confusion, it is not. This is unacceptable, it is inconsistent with the rule of law and it has been besmirching our system for years. A remedy is urgently needed and this sentencing code, the Bill and the processes that we are now reviewing will provide the desperately needed remedy—not because it is needed by lawyers but because there are daily miscarriages of justice. It is a miscarriage of justice for a court to pass a sentence that is unlawful. Those miscarriages result directly from the chronic state of our legislation.

I will make two further points. First, the code and Bill simultaneously avoid any retrospective increase in sentencing: the date of the commission of the offence is the starting point for the sentence. Secondly, it provides for a degree of flexibility, so that as new legislation creates further crimes—as happens constantly —it can all be worked into the code, so that we do not have to come back in 10 years’ time and say, “Ten years have gone by and we need another code”. We shall soon be looking at the counterterrorism Bill. That can be fitted into this code. If I were in charge—and I am not—I would get this done first and then look at the sentencing decisions which will arise when we consider that Bill.

The committee of the House which I had the honour to chair examined the proposed Bill and was enthusiastically in support of it. Members of that committee are here to speak, and those who for different reasons cannot be here have asked me to convey on their behalf their continuing support. What is surprising and disappointing is that the proposal has received the wholehearted support of Parliament, yet we have had to wait. I am not blaming anybody for this, but here is the fact: the Bill was introduced into this House on 22 May. It completed all its stages up to Report. It was ready to go, and it was lost when Parliament was prorogued. There were more significant consequences of the Prorogation of Parliament, but this was one of them. Then the process started in the next Session, and again the Bill was taken forward. Everything was in sight, the cup about to be grasped. A number of small amendments were introduced by the Government at that stage which were sensible, so that the Bill would be ready for enactment, but it was torpedoed by Dissolution—again, the Dissolution process had rather greater consequences than this.

Now we are here a third time. The amendments suggested by the Government again make good sense; they serve to improve the Bill. I did my own cross-check, but I ran out of energy just because we need a sentencing code. So I sought the advice of Professor Ormerod, who was able to assure me that he was prepared to give his blessing. If he had not, I would have complained—not to him but to the Government. A particular point to raise is that amendments should be commenced which, whenever possible, follow the “clean sweep” model and, again, reduce to extinction the risk of retrospectivity. A second is that any new legislation can be made compatible with the code. That, I earnestly urge should happen.

There is a solitary advantage in us having to address these issues again: it will give the House the opportunity to hear from my noble and learned friend Lady Hallett, who will be making her maiden speech. She is a very long-standing friend. There are many things that could be said, but I want to highlight this: she was the judge to whom I turned to conduct the harrowing inquest into the tragic consequences of the murderous terrorist attack in London in July 2005. We will all remember the transport disaster which resulted in so many deaths. I know her well enough; I have heard her say that she would be the first to extol the fortitude and courage of the families of the victims and the survivors who appeared before her at that inquest. But she will not say it, so I will. The sensitivity of her approach to each individual human tragedy encompassed in that long, sad catalogue of murder can, even at the risk of embarrassing her, be highlighted.

More to the present point, she was until a few months ago the vice-president of the Court of Appeal Criminal Division, much of whose work involves dealing with appeals against sentence which would have been quite unnecessary if the legislation had not been impenetrable and the proposed code in force.

This is the third time in a few months that this issue has been addressed. Even the journey of an indolent sloth eventually reaches a sluggish conclusion. Can we not have any more sloth-like behaviour? Can we have urgent attention so that, third time lucky, we will be quick?

Release of Prisoners (Alteration of Relevant Proportion of Sentence) Order 2019

Lord Judge Excerpts

Wednesday 22nd January 2020 Lords Chamber

The journalist sucked his pencil for a bit and said, “That’s all very well, but have you thought of the public expenditure that would be involved in putting all those windows into walls?” It is possible to lose the will to live; I did not, quite, at that stage. I have become a cracked record on this subject over the last few years. My noble and learned friend the Minister is an advanced thinker in these matters, not a dyed-in-the-wool, “chuck away the key” person. If the Government want to, and Parliament permits them to do so, they can extend sentences in this way, that way and the other. But, while they have their captive audience—literally—I urge them to do something with these people that makes them better citizens on their inevitable release.

[Lord Judge (CB)]

My Lords, I shall be very brief; following the remarks of the noble and learned Lord, Lord Garnier, there is not much more to be said. However, I wish to underline, first, that I very much hope that we will have a commitment today from the Minister that the Government do not intend to hold back on the enactment of a sentencing code. We have been through the whole of that process. It was cut short by the general election but it is an absolute imperative, as the Minister well knows and as anybody who has ever listened to the discussions on these issues fully understands. If we are to have changes to prison regimes, let them be done by amendments to an existing code rather than being introduced piecemeal and added on so that we are still looking through 17 volumes of laws to find out what the appropriate level of sentence might be.

My second point is much more general. The Minister’s introduction suggested—and it is perfectly obvious that it is right—that this is just the beginning. The Government are committed to a wholesale investigation of whether sentencing levels and dates for release are appropriate, and so on and so forth; this is a mere first step.

Speaking for myself, I find it alarming that we have started this process by secondary legislation. The issues raised, as the eloquent speech of the noble and learned Lord, Lord Garnier, made clear, are immensely significant to the entire way we run our punitive system in this country. Yet we are to have secondary legislation for this and, I suspect, a piecemeal series of secondary legislation as the Government’s thinking develops. A very good example—for once I am not looking at the Conservative side; this was Labour legislation—is the Criminal Justice Act 2003, which gave the Minister amazing powers to come to Parliament by way of a statutory instrument and effect enormous changes in our arrangements for prisons. Please, can we be more cautious about dishing out these powers?

[Lord Thomas of Gresford (LD)]

My Lords, the policy change to increase the release date of prisoners sentenced to more than seven years to two-thirds of the sentence has been brought forward far too quickly and without proper consideration. It is not evidenced-based. Before the election, the Lord Chancellor wound up the rhetoric and gave the reason for ensuring that the most serious violent and sexual offenders would face longer behind bars, as he put it, as restoring “public faith in sentencing”—sentiments that the noble and learned Lord, Lord Keen repeated. By contrast, the impact assessment attached to this statutory instrument says:

“Research into victims’ views on sentencing and time spent in custody is limited. However, a 2012 study found that victims of sexual offences (who will be more likely to be affected by this policy) were unclear on what the sentences handed down by the court meant in practice.”


There is no other study on which this change of policy is based and, as the noble Lord, Lord Ramsbotham, pointed out, there has been no public consultation. There have been only newspaper headlines in the popular press.

Before spending £440 million in construction costs and £70 million a year for 10,000 new prison places, as envisaged by the impact assessment, it would have been far better for the Government to take their time to form a proper evaluation of experience to date. In 2014 permission was granted for the Berwyn training prison to be built on the industrial estate of my home town, Wrexham. I know the area well; in my youth I worked on that very site as a member of a railway gang replacing wooden wartime sleepers with concrete ones. I learned how to use a pick and shovel, drink very sweet tea and place a bet—matters of great importance.

As I watched the buildings go up, to open in February 2017 at a cost of £250 million, I noted that it was the largest operational prison in the UK and the second largest in Europe. Here, I thought, was the opportunity, with modern design and facilities, really to do something to tackle attitudes, change people’s lives and turn prisoners away from crime. All rooms, as the cells are called, have integral sanitation, a shower cubicle, a PIN phone and a UniLink laptop terminal. It is designed to hold up to 2,106 prisoners serving four years or more. There have been criticisms. In particular Frances Crook, the chief executive of the Howard League, told the Welsh Affairs Committee, which reported on prison provision in Wales in April 2019, that it was built in a way that even Victorians would not build. She said:

“It is going to be the most disgusting prison in Europe within 10 years.”


She was concerned in particular that only 30% of the accommodation is single-cell, to save money, in flagrant disregard of the recommendations of the Mubarek inquiry into the murder of a young man by his racist cellmate.

As the prison was going up, a local rugby player, an experienced prison officer from a Merseyside prison, told me that, despite attractive offers, no regular trained officers would be attracted to work there. “It’ll be full of newbies,” he said. “You need to know who you’re dealing with, who’s standing next to you.” He was right: the report of the Welsh Affairs Committee revealed that 89% of the prison staff were in their first two years of training. The Prison Officers’ Association says that the recruitment pool in north Wales is exhausted and that

“we see very young inexperienced officers joining … with very few experienced staff to guide them.”

An inmate released last May told the Daily Post that

“it’s being run like a youth club.”

European Union (Withdrawal Agreement) Bill

Lord Judge Excerpts

Committee: 2nd sitting (Hansard) & Committee stage & Committee: 2nd sitting (Hansard): House of Lords
Wednesday 15th January 2020 Lords Chamber

[Lord Brown of Eaton-under-Heywood (CB)]

My Lords, although I am one of the few legal Cross-Benchers who has not been Lord Chief Justice, I too want to say a few words in support of these amendments.

I wonder whether my noble friend Lady Deech has recognised the precise area that we are concerned with here, which is retained EU law: that is, decisions of the European Court of Justice pre the end of the transition period, not decisions to come thereafter which can merely be taken account of and do not bind. So we are concerned with the actual decisions taken before we finally part ways.

Under our system, it is normally for Parliament, of course—and to a very limited extent for Ministers, by secondary legislation—to legislate: to declare what the law is, almost invariably for the future. Only rarely do we give law retrospective effect. But in 1966, as I am sure we all know, the practice statement in the House of Lords said for the first time that we could depart from what has otherwise been the sacrosanct principle of stare decisis—of precedent in the interests of certainty and finality—subject to a rigorous test. It is a rarely used power, now transferred to the Supreme Court and indeed, by a decision that I wrote in 2007, to the Privy Council. In certain limited circumstances, the courts can depart from their previous decisions.

The sort of consideration or test is whether the earlier ruling is now judged to have been plainly wrong, and how long it has stood. If it is recent, that is one thing, but if it has stood for a long time there may be many who have acted in reliance on it. Let us not forget that when the court exercises this power it does so by declaring what the position is and always has been. It therefore applies retrospectively and leads to cases where those affected by it, although they may run into time difficulties, may need leave to appeal, or to bring proceedings, out of time. They may then say, “That is now established as the law and therefore we would like to invoke it.”

In the ordinary way, we only use this power where the individual case leads to manifest injustice or is contrary to public policy, or where the established line of authority unduly restricts the development of the law. In a very interesting and powerful piece in the Spectator last week, one of the excellent contributors to the Policy Exchange, Professor Richard Ekins, quarrels even with Section 6(4) and (5) of the 2018 Act, which already provide in effect for the Supreme Court, and in certain circumstances the High Court of Justiciary in Scotland, to have the same powers to reverse EU-retained case law; in other words, not to follow what they would otherwise need to follow, the already decided ECJ decisions, in the same way as they can not follow existing domestic law.

Professor Ekins suggests that that

“would introduce unnecessary legal doubt and improperly empower the Court to make new law.”

I see that point, of course, although I would not deprive the Supreme Court of this power. However, it strongly reinforces what he already said in the article in support in effect of Amendment 21: that it would be absurd for some lesser body as yet unknown, and I rather suspect not quite thought out, to decide who should, at a lower level, be authorised by ministerial regulation to depart from retained EU case law. That would indeed be a recipe for chaos, confusion and uncertainty.

As to the other main point, Professor Ekins wants all the power to change EU case law to be either the power of the Minister to promote by way of primary legislation—which of us would quarrel with that; it is plainly the correct approach?—or for the Minister by secondary legislation. That is where the real problem lies. If the proposed change of legal direction from earlier rulings of the ECJ involves obvious fresh policy choices, such as the sort of things instanced by my noble friend Lord Anderson, it will affect some already established important legal principle and is plainly an issue for Parliament by primary legislation. Secondary legislation could be appropriate here only if it is demonstrably necessary either to work cogently with some clearly established new post-Brexit situation or something of that character.

That said, I share Professor Ekins’s objection to involving individual judicial officeholders, however senior and distinguished, in the process of ministerial law-making. This again chimes with what my noble friend Lord Anderson said. I support both the amendments. Let the Supreme Court, as under the 2018 Act, have this rare power that will be seldom exercised, but mostly it should be for primary legislation to depart from well-established legal principles.

[Lord Judge (CB)]

My Lords, like the noble and learned Lord, Lord Neuberger, I too would welcome some clarity in this field, but I do not think that clarity can be provided by Ministers creating regulations behind the scenes and then serving them up to the House of Commons, which has not rejected any ministerial regulation since 1979, or this House, which has rejected them on minimal occasions, and by doing so in 2015 apparently caused a constitutional crisis. The issue is very simple. Of course there should be clarity and of course it should be provided by Parliament. We will now be considering what is domestic law. We call it EU case law, but the whole point of the process that we are going through is that it will become British EU-retained law. It will be British law and no longer EU law. It is that which will be interfered with.

I could spend some time going through the doctrines of precedents. They are very clear and simple. I remind the House that they have provided a way of achieving legal certainty. You can conduct your affairs with a degree of legal certainty. You can conduct your business, conduct your tax affairs and deal with foreigners outside this country. They tend to want to come to this country because the law is certain and clear. Yet simultaneously, and it is one of the great glories of our system, we have common law that goes back to 1189 that has enabled the law to develop, flourish and adapt as and when it became appropriate and necessary to do so. The greatest tribute to the common law is that it carries the day in all English-speaking countries. It is still used in India and Australia—adapted, of course, because that is one of its fundamental strengths, to conditions there.

I gave a lecture and talked to people who have suffered the horrendous problems of Bhopal, which not many of us will forget. There is a perfectly good legal principle—British, as it happens—called Rylands v Fletcher, which decided in Victorian times to create a new system. If you bring dangerous things on to your land, it is your job to keep them in, and if they get out, you are responsible. That was the common law working with absolute certainty to produce a new way of looking at the responsibilities of the landowner. So between them, the principles of legal certainty and the use of the common law enabled our law to develop.

Here, the noble and learned Lord the Minister, as the noble Lord, Lord Beith, reminded us, with his own personal experience, asserted on Monday by repeating that

“there is no intention on the part of the Government to extend the power to every court and tribunal in the land.”—[Official Report, 13/1/2020; col. 555.]

But that is the power that is being given by this legislation as it stands to a Minister. If that is not the Government’s intention, what on earth is the point of giving the power in the legislation to the Minister?

Where do we go? This permits the Minister to make regulations that would create jurisdiction in any court at any level to disapply retained EU case law, which is our law. Just think of the district judge sitting in, for example, Pontypool County Court, bound by all the decisions of all the courts above him or her by our own native law—Occupiers’ Liability Act, Unfair Contract Terms Act and even the Finance Act—who is then told, “Here is the EU case law. You are not bound by anyone’s decisions on that, so take a running jump at it.”

That in truth is what the poor judge will have to do. Think of his poor colleague in Penrith County Court, faced with a large organisation taking advantage of this new system by going to a small county court without the experience to respond to: “This bit of EU case law really troubles us. Your honour is not bound by it, so here are the reasons you should find for us.” To be fair, it could happen the other way around with a litigant who knows perfectly well that under case law he has no case, going to the same judge and saying, against a large business organisation, “They cannot rely on the case law any more, because you are not bound by it.” The same could happen in a tax tribunal or a VAT tribunal. All of this is quite unnecessary because, as the Minister has said, that is not the Government’s intention.

I would love to have a go at Henry VIII, whether he is filled with fat or with whatever drug to describe this condition today, but I am going to resist the temptation to do so, because I want the Government to realise that this is nothing more than a reasonable argument that needs to be addressed. All that is needed, without causing any delay to Brexit or creating a problem on 31 January, is for the Government to decide what arrangement should be put before Parliament in primary legislation to achieve the desired objective.

As an example, I did a bit of drafting last night so that they could say, “The Supreme Court and/or the Court of Appeal in England and Wales and the High Court of Justiciary in Scotland are not bound by retained EU case law”. Or the Government could say that those courts may depart from any retained EU case law if and when. It is not difficult, and I will offer myself to the Minister to sit down and talk it over with him if that would help. If Ministers are listening, perhaps that offer will be taken up. However, we have to address the principle, because the slightest incursion into judicial processes must be for Parliament, not for Ministers.

[Lord Thomas of Cwmgiedd]

Perhaps I may make some brief observations, in part in support of the underlying purpose of what the Government have said they want to do, but in total support of this amendment. As I understand the position, the Government want courts other than the Supreme Court or the High Court of Justiciary in Scotland to have power not to follow decisions of the CJEU on retained law. That is a purpose I support. In the course of the debate on the withdrawal Bill, in particular the Report stage in April 2018, I asked the Government to think again in relation to allowing the Court of Appeal in England and Wales, the Inner House in Scotland and the Court of Appeal in Northern Ireland to have this power.

Queen’s Speech

Lord Judge Excerpts

Wednesday 8th January 2020 Lords Chamber

[Lord Judge (CB)]

My Lords, I should have spoken to the noble Lord, Lord Tyler, before deciding what to speak about because he has said nearly everything that I wished to say, so I will not be very long. Your Lordships have heard me, and listened patiently to me, addressing the House about this misuse, this abuse, this failure to comply with constitutional conventions. As I spoke, I believed it and I still believe it. What has happened to Cabinet responsibility? Gone. What has happened to the confidentiality of Cabinet? What has happened to the constitution when the Minister for the Constitution is not a member of the Cabinet? What is happening and has happened with Henry VIII clauses now strewn like confetti at a happy wedding in the old days when, if I may say so to the Lords spiritual, the vicars did not mind if there were confetti on the path all the way back to and in the church?

When I read about the constitution, democracy and rights commission, I thought, “Hurrah! We’re going to address the problems. We’re going to address the misuse and the abuse. We’re going to try to make the Government more answerable to Parliament.” Then I thought, “Isn’t that funny? Democracy and rights are what constitutions are about. Why bother to have a commission into constitution, democracy and rights? Why add those words if your real concern is the constitution?” As the noble Lord, Lord Young, reminded us, the Prime Minister has told us in a briefing that the idea is to develop,

“proposals to restore trust in our institutions and in how our democracy operates.”

He has listed some of the many issues that have to be addressed. I suggest that the very first objective of any commission addressing the constitution should be to identify the misuses and abuses of it by both sides—by the coalition, too—in a practical way to establish and protect the constitution from further misuse and abuse and, in particular, to extinguish the misuse of unaccountable power by the Executive.

However, I could not dispel the suspicion that this is really all about the Prorogation decision of the Supreme Court.

[A noble Lord]

Absolutely.

[Lord Judge]

Well, why does somebody not say so? The answer is: it has been said, but it is not said in the Queen’s Speech, nor is it said in the briefing. Yes, it was an unprecedented decision, but then the situation was unprecedented. Let us just remember that if Parliament is prorogued, Parliament shuts up. There is nobody to challenge the Prorogation decision. This democratic process, an elected House, is told, “You cannot speak now on any issue, because I, the Prime Minister, have decided that there must be a Prorogation.” If the commission looks at this issue, it should not be worried about the powers of the Supreme Court; it should establish a clear understanding that Prorogation cannot happen without a vote in the House of Commons—certainly—and a vote by this House, too.

While the commission is looking at it, could it examine another element of the prerogative that has caused us all so much concern: the size of this House? What on earth is the point of that wonderful committee led by the noble Lord, Lord Burns, making all those recommendations of “two for one”, “one for two”, “swap this”? Very good, but the Prime Minister of the day retains an absolute prerogative power to appoint as many men and women to this Chamber as he or she thinks fit. It would be a good idea for the commission to look at that vice in our constitutional arrangements.

I have said as much as I want to say, save this. I support the idea of a royal commission into the criminal justice system, but if it is a royal commission, why does the constitution commission, addressing the beating political heart of the nation, not merit being one, too. What sort of unroyal commission is intended to address the constitution? If we are talking about trust, a commission established to give the Government the answers that they want will strike a mortal, further blow to the public’s confidence and trust in their own institutions, and the abuse and misuse will continue.

Queen’s Speech

Lord Judge Excerpts

Monday 21st October 2019 Lords Chamber

[Lord Judge (CB)]

My Lords, in the gracious Speech there is a reference to the integrity of democracy. I will address the simple principle that the integrity of democracy in this country depends on the survival of the constitution. We have a great number of problems. We are not providing the constitution with the protection it needs, if I may say so, from Parliament. We never have time to examine these issues as a whole. We examine them piecemeal and do not appreciate that each part of the problem adds up to one problem overall, so I will pick four examples.

First, there is the obvious one. To avoid a political difficulty, Mr Cameron, with a great deal of support in Parliament, and, let us not forget, with its certain concurrence, gave us the Brexit referendum. The public were led to believe that their decision in the referendum would be binding on Parliament. They did not choose the questions that they had to answer; the questions were chosen for them. We now know what answer was given. It did not coincide with the views of the majority of people in either of our two Houses. Simply because a referendum has no real place in our constitution, the constitution did not provide and could not be expected to provide an answer to a simple question.

In such a clash, who wins? Those who support Brexit assert—it has been asserted in this Chamber time and again—that a democratic mandate was given to the people and that this overrides Parliament. The same has been frequently asserted in this House the other way around: the ancient principle that ultimate sovereignty rests with Parliament. What a constitutional shambles! It is a salutary lesson to all politicians on all sides that if you mess about with the constitution it will bite back, and it is the public and nation who suffer the consequent injury.

Secondly, as part of a deal to create a coalition Government—in other words, to deal with a political difficulty—the then Prime Minister, Deputy Prime Minister and Parliament enacted a new principle: the five-year Parliament. The result is that, although the Prime Minister of the day failed more than once to obtain parliamentary agreement to the deal she had agreed with the EU, an absolutely central part of her legislative programme, the country was deprived of the only constitutional way to resolve the problem: a general election. There should have been one, but there could not be. I am not saying that we need a general election now—I keep off general elections or referenda in the present context—but I am reflecting that what I am sure was an unintended consequence of this enactment is that an important constitutional principle was undermined. Before the constitutional change was made, did anyone give thought to how it might impact on that constitutional principle? I regret to say that I doubt it.

I come to my third point. All parties are involved in this. Until recently, the Lord Chancellor held office as a major member of the Cabinet, among other things, and as head of the judiciary, with special responsibility for safeguarding the constitution, the independence of the judiciary and the rule of law. That office has now been downgraded. It is no longer the pinnacle of a political career. In truth, it is a relatively minor ministerial appointment, in Cabinet terms. It will be remembered that this important constitutional change was simply announced to the public, before any discussion with Parliament.

So far as the constitutional responsibilities of the Lord Chancellor are concerned, we now have a Minister for the Constitution; I wonder how many Members of this House know that. However, that Minister is not a member of the Cabinet. Like the Lord Chancellor, the Minister does not have to be a lawyer. Therefore, the Minister for the Constitution is not a member of the Cabinet and, like the Lord Chancellor, he or she may never even have read the Ladybird book on the constitution. I am not forgetting the Attorney-General, but he or she is not a Cabinet member either and, in any event, the basic responsibility of the holder of that office is to give independent-minded advice to the Government when the Government are his or her client.

I would love to enter into the Prorogation question in this debate, but I will not. For today’s purposes, I should love to know whether the Minister for the Constitution was consulted in any way, shape or form about the proposal that there should be a Prorogation in September. If not, what is he or she doing? Why do we have such a role? I would argue that in the interests of our democracy and the importance of our constitutional arrangements to preserve that democracy, the Minister for the Constitution should at least be in the Cabinet. I do not expect that we will ever get back to the old-fashioned influence and responsibility of the former office of the Lord Chancellor, but this story is a very serious indication of whether we are at all bothered about the constitution. As things stand, the constitution has been relegated in the government structure and the Cabinet hierarchy. Do we think that is a good idea?

I will make one last point before this turns into a lecture. I want to highlight an issue which may not have crossed all your desks. I am very grateful to the Delegated Powers and Regulatory Reform Committee report of January 2018. Your Lordships’ House had nothing much to do with the Taxation (Cross-border Trade) Bill, as it was a supply Bill and therefore not for this House. Nevertheless, our committee reported in very troubled terms on the delegated powers in the Bill, which involved a massive transfer of power from the Commons to Ministers, with over 150 separate powers to make tax law affecting individuals and businesses, running to thousands of pages. Can we bear in mind that the essential foundation of all our constitutional arrangements and the ultimate sovereignty of Parliament depends on the principle which literally goes back to Magna Carta, Clause 12—that there should be “no scutage nor aid” without consent? That moved across the Atlantic in the principle which the Americans took from this country and summarised as “no taxation without representation”.

The report is utterly courteous, but it is damning about the powers that the Bill—now the Act—gives to the Executive. One example will do. Section 32 creates a regulation-making power, subject to not affirmative but negative procedure. It relates to regulations of the widest possible impact, including those on VAT and customs and excise duty, and of course includes all the ability to disapply primary legislation and so on. This is all on the basis of a “public notice” published by the Minister or HMRC commissioners.

The Public Law Project, a national charity, drew my attention to a new statutory instrument made in purported compliance with these powers. It also made a legal argument that the regulations were ultra vires the parent Act and threatened a judicial review. It has now been conceded that, in law, it was right. But that is a temporary victory. The Act remains in force and so do the wide regulation-making powers. We are not even aware of it. This is a return to rule by proclamation, but because nowadays we all know that we dislike that and are very aware of Henry VIII and the Statute of Proclamations, what do we do? We have a “public notice”—a notice that the Treasury, not the Commons, considers appropriate. This is taxation by proclamation. The mind boggles.

I have said this frequently before, so forgive me, but I simply want to highlight that, as Parliament, we vest vast powers in Ministers, the Treasury, HMRC or any other government department, to create laws and change laws. The constitutional framework is shifting. We are building our constitution on softer sand; not loudly or so anybody notices, but it is happening.

For those noble Lords who are disturbed, let us not forget that criticism should be directed to Parliament. It is up to us. It is very simple: if we want to guard our democracy and its integrity, we must guard our constitution against temporary political advantage or expediency. We must be alert to it and we must fight it. Our constitution is wonderfully flexible, but even a wonderfully flexible constitution can be tested to destruction. That is what we must avoid.

[Lord Framlingham (Con)]

Would the noble and learned Lord agree that in times such as this, it is so important that we rely on our tried parliamentary machinery, and that in recent times we have altered that parliamentary machinery without giving due thought to the consequences?

[Lord Judge]

My short answer is “yes”, but it would be a very long answer if I explained why and what my reservations are about my “yes”.

Sentencing (Pre-consolidation Amendments) Bill [HL]

Lord Judge Excerpts

Tuesday 23rd July 2019 Other Business

Debate on whether Clause 5 should stand part of the Bill.

[Lord Judge (CB)]

My Lords, before we get to Clause 5, I wonder whether this might be a convenient moment, this being a special Public Bill Committee, for me to say something about the way in which the committee has worked and the issues that we have resolved, so that they are a matter of public record given the unusual circumstances of the Bill.

The committee has met and taken oral evidence from Professor David Ormerod of the Law Commission and from the noble and learned Lord, Lord Keen of Elie, the Minister responsible for the Bill. We also received evidence from the Criminal Appeal Office and the Prison Reform Trust, and from Professor Andrew Ashworth and Professor Nicola Padfield, both of whom are acknowledged experts in sentencing law. We received supplementary written evidence from Professor Ormerod and the noble and learned Lord, Lord Keen, which addressed the issues raised during the committee’s oral hearing. The committee agreed that this written evidence should be accepted and indeed published. Beyond that, the committee had before it the sentencing code summary, the detailed sentencing code report and the sentencing code itself—all very substantial documents. This enabled us to examine the wide breadth of the consultation programme in which the Law Commission had engaged, and the responses to that process.

It is beyond controversy that the law relating to the sentencing powers of the courts is in desperate need of clarification. The adoption of this sentencing code is an imperative. The Bill, however, is mechanical. It does not, and is not intended to, address sentencing policy problems, nor is it a Bill intended to reform the law of sentencing. For example, one current policy question is whether there are any circumstances, and if so what, in which a short prison sentence may be imposed, or whether such sentences should be abolished. I suspect that if the members of the committee—some of whom are here today—had sought to address this single question, we might have been discussing and receiving evidence about it for many months.

There are many other outstanding questions, such as the continued detention, well beyond the normal sentencing tariff, of those ordered to be subject to imprisonment for public protection. There is a whole raft of policy questions. Therefore, it is important to emphasise not only that the Bill is not intended to address complex policy questions but that, if the Bill is enacted and the sentencing code comes into force, the policy questions will remain open for further public discussion and parliamentary decision.

Beyond the policy question, we also recognise that the consolidation provisions in the Bill do not cover every single aspect of every single sentencing enactment that might apply to conviction of a particular crime in particular circumstances by a particular offender. For example, the complexity of the confiscation provisions vested in the court after conviction is notorious. That issue is addressed in a separate further proposal.

Without wanting to suggest that they are not difficult, at the other end, there are also what may be described as the fiddly bits of a sentencing decision; for example, where and in what circumstances jurisdiction to make a protection order would arise. I am speaking for myself, although I think I speak for the committee also, when I say that I am satisfied that it would be contrary to the public interest to postpone the implementation of the code in its present form—it is a massive project, which has taken literally several years to bring before Parliament—until after the remaining questions have been addressed. At the moment, the code provides opportunity to improve and make the sentencing process much more straightforward and less prone to error; it is urgently needed.

Again, I emphasise that the enactment of the Bill and the coming into force of the sentencing code should not be seen as the end of the process but as a very large and important step in it. We were invited by Professor Padfield to treat the Bill as an interim measure; she made a powerful argument. As and when the further consolidation proposals are received from the Law Commission, I urge that the Government of the day see it as a matter of obligation to bring them to Parliament, not “as soon as practicable”—those are slightly weasel words—but forthwith. It is not a difficult process and we have not found it particularly time-consuming in Parliament, though the reading has been substantial.

The issue with which every member of the committee, and indeed many of those who responded to the consultation, was concerned can be summarised in a single word: “retrospectivity”, or perhaps in two words, “no retrospectivity”. If I may, I shall adopt Professor Ashworth’s identification of the principle at common law and embodied in Article 7 of the European convention: the defendant should not be subjected to a heavier penalty than the one that was applicable at the time the offence was committed. It is a simple and clear definition. The particular importance of applying this principle to this code and enactment is that, over the years, Parliament has steadily increased the maximum penalties for a number of offences including, for example, indecent assault. Many cases of sexual assault are now prosecuted and tried as historical cases, going back very many years. For such an offence committed in, say, 1988 or 1998, the sentence available then—not that available now—binds and limits the sentencing court.

We are satisfied that the retrospectivity issue has been properly addressed in what has been described as the “clean sweep” approach, in particular Clause 1(4). Beyond that, we did not find a single observation in the evidence which suggested or implied that there could be any doubt that the retrospectivity issue had been properly addressed. Yet further beyond that, my personal view is that if a sentence which infringed this principle were imposed, it would, at common law and under Article 7 of the convention, be corrected as an error. But importantly, the statute leaves the question beyond doubt.

Some concern was expressed in the committee about the possible extent of the regulation-making powers granted to the Secretary of State, in particular whether the Bill granted powers that would enable him or her, by regulation, to alter sentencing levels—especially, of course, to increase them. As Governments of different hues have developed what I describe as an unfortunate tendency, although that is rather polite, to try to create criminal offences punishable with imprisonment by the exercise of regulation-making powers, this concern obviously required careful analysis. I suspect that any court faced with any alteration to sentencing levels said to be derived from powers created in the Bill would be extremely dubious about construing the Bill in this way. Beyond that, however, in his recent written evidence the Minister pointed out that the regulation-making power in Clause 2(2) applies only to any potential amendments that facilitate, or are otherwise desirable in connection with, the consolidation process; and that Clause 5(3)(a) restricts the amending power to pre-consolidation amendments. In my view, the regulation-making powers in the Bill, which are concerned exclusively with the consolidation of legislative provisions currently in force, is not open to potential misuse by the Secretary of State.

We were also troubled by a problem over which we have no control and which I wish to highlight. It has nothing to do with the statutory provisions with which we are concerned, but with the danger that, unless great care is taken with the enactment of criminal legislation, particularly sentencing provisions—and, if I may say so, taken with infinitely greater care than in past enactments, which has caused all the problems—the code itself will be out of date within a major criminal justice statute or two. Given the rate at which such statutes are enacted, that would not be very long—possibly before the consolidating process of what I have described as the fiddly bits has been completed.

This code is pre-eminently a provision to which the words “living instrument”—my words—should be applied. It must be capable of adaptation and development as sentencing provisions and, in due course, policies change. The whole purpose of the code would otherwise have been lost. It would have been built, in the word used by one member during our discussions, on dust. That makes it imperative that when sentencing provisions are introduced, amended or repealed, express provision should be made in that primary legislation for the incorporation of those new provisions, as I shall now call them, into the sentencing code. We, and more importantly the Law Commission, given the extraordinary burden it has carried for several years now, will otherwise have been wasting our time.

Before long, sentencing courts will be struggling with the difficult problem of deciding what the sentence should be. If I may pause there, I think many judges would say to the Minister that, with the possible exception of deciding where children should live when there are problems at home, a decision about what sentence should be imposed on an individual is one of the most difficult problems that any judge can face anyway. They would be faced not only with the difficult problem of deciding what the sentence should be but with the ludicrous task of examining complicated legislation to ascertain what the court’s lawful sentencing powers are.

I have said all that I wish to say on this beyond thanking our team, led by John Turner, very much for their help and their immediate response to a Bill that has come through the House very rapidly and needed close attention from all those involved behind the scenes.

[Lord Keen of Elie]

My Lords, I want to make one or two observations for the record in response to the comments made by the noble and learned Lord as chairman of the committee.

Clearly, as was observed, the clean sweep mechanism is subject to exceptions to ensure that no offender is subject to a greater maximum penalty than was available or subject to a minimum or mandatory sentence that did not apply at the time that the offence was committed. Of course, a clean sweep allows for a different sentencing disposal than would have been imposed had the code not been enacted. The guideline judgment in R and H v UK in 2011 sets out that sentencing exercises should be conducted on the basis of current sentencing law by measured reference to any definitive and relevant sentencing guidelines, and that while sentences must be limited to the maximum available at the time of the offence, it would be unrealistic to try to assess what the sentence would have been had the case been heard years, or even decades, earlier.

My only additional comment is that the clean sweep will extend the duty of the courts to follow sentencing guidelines, thereby removing the previous duty to have regard to sentencing guidelines in relation to offences committed before 6 April 2010. Accordingly, the code will extend the current duty to follow sentencing guidelines to all convictions that follow the enactment of the code.

Northern Ireland (Executive Formation) Bill

Lord Judge Excerpts

Committee: 1st sitting (Hansard): House of Lords
Monday 15th July 2019 Lords Chamber

[Lord Browne of Belmont]

I thank the noble Lord for his intervention, but I understand that that was on a very narrow case of fatal foetal abnormality. I will address that matter shortly, which should answer his question.

The chief commissioner of the Northern Ireland Human Rights Commission recognised that the recommendations were non-binding in oral evidence to the Women and Equalities Select Committee in the other place when it was reviewing the law in Northern Ireland. Professor Mark Hill QC wrote an opinion about the CEDAW report, in which he stated:

“The Committee does not have the capacity or standing to give a binding adjudication on the United Kingdom’s obligations under CEDAW or on the proper interpretation of CEDAW”,


made the point that the International Court of Justice had not interpreted CEDAW as providing a right to abortion, and said:

“The interpretative function under the CEDAW is reserved, not to the Committee, but to the International Court of Justice.”


If this is not enough to convince your Lordships that the authority being given to this Committee is flawed, I shall quote from a Supreme Court judgment —R (A and B) v Secretary of State for Health—in which Lord Justice Wilson said:

“The conventions and the covenant to which the UK is a party carefully stop short of calling upon national authorities to make abortion services generally available. Some of the committees go further down that path. But, as a matter of international law, the authority of their recommendations is slight”.


Here we come to the case that the noble Lord, Lord Bruce, referred to. The judgment in that case stated:

“If the Supreme Court rules in the case of Sarah Ewart that there is a right in relation to fatal fetal abnormality, then that would create a very strong case for a small but important change to the law. It would not, however, create anything resembling a general right to abortion”.


Indeed, the basis for thinking that the court might support a right in relation to fatal foetal abnormality is what was said in relation to a case last year, in which the plaintiff did not have standing, so no rule was made. The court also gave another indication, to the effect that there is no human right to abortion on the basis of disability generally—something permitted in Great Britain.

Secondly, the medium of human rights is normally expressed as a check on the majority expressed through constitutional due process. This is highly ironic, given that the only reason we are here is the complete disregard of constitutional due process manifested last week in the other place, where we saw: dispensing with scope; debate being permitted in relation to out-of-scope issues that should have been the subject of their own Bill, even though the Bill before the House was being fast-tracked; and the imposition of a change on the part of the UK with the smallest population, and thus the smallest number of MPs, by MPs from outside Northern Ireland

The ethic that the end justifies the means is the kind of thing that constitutional checks are supposed to guard against, not encourage. If the proponents of Clause 9 press their case on the basis of the end justifying the means, as at present, that will cast a great shadow over the integrity of their human rights pretensions. If we want to live in a functioning union, by all means let us talk about human rights, but do not use them wrongly to suggest that there is a general right to abortion when no such right exists, and do not use them to dispense with the respect for constitutional due process, the presence of which can facilitate a functioning union, whereas disrespect for it will bring about its demise.

[Lord Judge (CB)]

My Lords, I wonder whether I may be allowed two minutes to look at the provision that we are considering, which is Clause 3(6). What is proposed is,

“a review of the current legal framework on abortion in Northern Ireland with an analysis of how that … could be amended by Parliament … when there is no Executive”,

followed by these very important words, which I have not heard this afternoon,

“subject to a sunset clause to respect devolution”.

I read that to mean that whatever we may do, when there is an Assembly in Northern Ireland, it will be up to the Assembly to decide what the law should be in that country. It may revert to the law as it is now—but we hope that it will not.

[Baroness Boycott (CB)]

My Lords, I find this debate really shocking, and I support my noble friend Lady Deech and the other noble Baronesses. I have campaigned for women’s rights all my life, and the one word I have not heard tonight is “kindness”. I do not think any woman has ever wanted to have an abortion, and I am shocked by a lot of the attitudes coming through, which imply that women go for abortions in a willy-nilly, uncaring fashion. In fact, this is a terrible decision for any woman; it is not undertaken lightly, or without thought, worry and anxiety. Women have abortions because they do not feel that they can bring that child into this world and give it the care, love and family life it is due. This is something that has been absent from the debate, and I am shocked to stand here listening to men—as my noble friend Lady Deech says, it is men who are saying this. If it were men in those shoes, things would be different. They are entitled to stay overnight and then go off and leave a woman with the consequences. This is a human right; it is about kindness and decency. It is astonishing what is happening, 50 years on. I have been in this House for one year and two days, and I am shaking as I listen to all this again. We have had this argument. This is a human right and human decency, and we should not stand in the way of the women of Northern Ireland, who deserve it.

Courts and Tribunals (Online Procedure) Bill [HL]

Lord Judge Excerpts

3rd reading (Hansard): House of Lords
Tuesday 2nd July 2019 Lords Chamber

[Lord Beith (LD)]

I think we are in danger of slight confusion, with too many amendments moved at the same time. This is obviously a mark of the Minister’s enthusiasm for his amendments, which is actually shared by Members around the Chamber, because they are the fruit of the discussions to which he referred. I simply want to say, before it all becomes water under the bridge, how very much I welcome the Minister’s Amendment 3, which fully achieves what I have been trying to do in amendments both in Committee and on Report. This is, as the noble and learned Lord indicated, to ensure that someone who does not feel comfortable with or able to use the online system can participate in the same process using paper, can receive any documents they have to receive and can put in any subsequent documents, not just the initiating documents, on paper, because the Courts Service will scan the documents and provide the necessary copies as well.

I suspect that this is a minority and even a generational thing. When people like me have ceased even to think of engaging with court cases, or are lying beneath the ground, everybody will be online—but that is certainly not the situation at the moment. We do not want the law to be blind to the concerns of those for whom this is a very new kind of proceeding, and one for which they do not have the necessary skills or experience, particularly when dealing with something as difficult as a legal case. So I am very grateful to the Minister for all he has done in this respect and I support this—and indeed his other amendments.

[Lord Judge (CB)]

My Lords, I support not only the amendments to which my name is attached but all the amendments proposed today. Taken with the earlier amendments which the House considered and which the Government have added, this makes for a much better Bill than ever it was. The particular point I wish to emphasise is that, as a result of these changes, the House, and in particular the Government, have recognised the impact of the constitutional reforms of 2005. The emphasis ought now to be recollected whenever there are any proposals to address the way in which the courts system works. Beyond that, I thank the noble and learned Lord, Lord Keen, for his personal contribution to the discussions and improvements—and, through him, I thank his team.

[Lord Beecham (Lab)]

My Lords, I join noble Lords who have spoken in this very short debate in thanking the noble and learned Lord for the way he has approached the Bill. He has sought very clearly to achieve consensus; he has been open to discussion; and he has obviously been persuaded to make important changes. It is something he might like to have a word with other ministerial colleagues about, because it has not always been the case that Ministers have responded so constructively to debates in the Chamber. On this occasion, I am sure that the House will unanimously agree these amendments. Certainly we on these Benches—such as we are this afternoon—will do so.

Courts and Tribunals (Online Procedure) Bill [HL]

Lord Judge Excerpts

Report stage (Hansard): House of Lords
Monday 24th June 2019 Lords Chamber

[Lord Pannick (CB)]

My Lords, I thank the Minister and the Bill team for their very positive response to the concerns expressed around the House in Committee. I agree with all the points made by the noble Lords, Lord Marks and Lord Beith, and I support their amendments. I am particularly concerned about government Amendment 4 for the reasons that the noble Lord, Lord Beith, indicated. It is expressly confined to the initiation of proceedings and does not in terms cover, as it must, the right to submit further paper documents and to receive paper documents if the litigant so elects. I very much look forward to the Minister confirming what the noble Lord, Lord Marks, indicated—that the Minister intends to address this point at Third Reading.

I much prefer the solutions offered in the various amendments to which the Minister and the noble Lords, Lord Marks and Lord Beith, have spoken, to Amendment 7 tabled by the noble Lord, Lord Beecham, with all due respect to him. As I understand it, his amendment would allow for regulations, under which the party bringing proceedings could choose whether proceedings are under the Online Procedure Rules or the standard rules. I can see no justification, particularly if the other amendments are agreed, for allowing people to choose which rules apply, especially if paper documents can be fed in and received under the Online Procedure Rules. Such an amendment would, I fear, damage the whole purpose of the Bill. It would give litigants an option as to which rules apply and benefit no one other than those who wish to make a simple claim subject to a more complex and more expensive procedure as, for example, a negotiating tactic.

[Lord Judge (CB)]

My Lords, I shall say just a word or two in support of these amendments. Amendment 2, by adding the two words “providing for”, and Amendment 3, by removing the one word “technical”, would rather improve the clause. Amendment 5 improves government Amendment 4, which itself was an improvement. If I may, I will paraphrase how I understand Amendment 5 would work: if you are not digitally educated and you would prefer to use paper you may do so, and if you do your papers will be incorporated into the electronic system. The amendment would provide that you are entitled to continue to use your own paper and your own paper system because the electronic system would be perfectly well able to provide you with all the paper you need. There should be no difficulty about it at all.

Amendment 5 is consistent with Amendment 18 to Clause 7, which has the interest of those who require technical support to be protected. It also, for the reasons given by the noble Lord, Lord Pannick, effectively makes Amendment 7 in the name of the noble Lord, Lord Beecham, to Clause 3 redundant because the paper user would then not be at any disadvantage. For the reasons he has given, the idea of having two systems running side by side would, among other things, be a recipe for those who do not want justice to be done and who want to confuse and to avoid getting the system to court for a hearing.

[Baroness Drake (Lab)]

My Lords, I too will speak to Amendments 3, 5 and 9A. In their Amendment 1, the Government accept that to secure accessible and fair court online practice and procedures, regard must be had for the needs of those who require support to initiate, conduct, progress or participate in electronic proceedings. Their Amendment 4 would allow a person to initiate proceedings by non-electronic means—that is, in paper form—but they are silent on allowing people the same facility at other stages, even though they recognise that regard must be had to those who will need support throughout all stages of the proceedings. That non sequitur is addressed by Amendment 5, which allows for further documents in all stages of proceedings to be submitted in paper form.

In Committee, noble Lords debated at great length the potential impact on access to justice for court users with limited digital means, digital literacy, or capacity to engage digitally. The Minister has accepted that some people find it difficult to engage with such digital procedure, but the Bill contains no general duty on the provision of such support, which Amendment 9A would provide. It is therefore a welcome amendment.

--- Later in debate ---

[Lord Keen of Elie]

My Lords, the amendments in this group deal with the issue of concurrence. Again, I thank noble Lords for their contributions on this topic at Second Reading and in Committee, and for their continued engagement on the matter outside the Chamber. We listened to the points made in these discussions and sought to address some of the concerns raised. I have tabled a range of amendments which I hope will provide suitable assurances for noble Lords. The amendments in this group deal specifically with the matter of concurrence in Clauses 2, 3 and 12. That is because I am now persuaded that the question of which proceedings fall under the auspices of the new Online Procedure Rule Committee should be a matter for agreement between the Lord Chancellor and the Lord Chief Justice. Therefore, these amendments make the necessary changes to Clauses 2, 3 and 12 to provide for this.

The amendment to Clause 12 also allows the Lord Chief Justice to delegate agreement to other members of the senior judiciary, which is purely a matter of practicality. I hope the amendments will be welcomed by noble Lords. They provide an important safeguard for the operation of the new committee. In particular, they address the concerns expressed by noble Lords at previous stages that the future expansion of the role of the committee should be subject to appropriate scrutiny and that in such matters the right relationship with the Lord Chief Justice and Senior President of Tribunals is one of concurrence. On reflection, this is a position which the Government now accept, and in these circumstances, I beg to move.

[Lord Judge]

My Lords, the Government have come a long way and I am now addressing not only the amendments put forward by the Government but Amendments 22 and 23. I begin by thanking the noble and learned Lord, Lord Keen, for kindly listening to what we had to say and for acting on it, and the Bill team for helping him get the wording right. It means that the Government have come a long way towards understanding the implications of the constitutional changes in 2005, which changed the relationship between the Lord Chancellor and the Lord Chief Justice and placed on the Lord Chief Justice responsibilities that once attached to the Lord Chancellor. The Lord Chief Justice now has personal responsibility for the arrangements by which litigation is conducted. To the extent that this relates to tribunals, the Senior President of Tribunals has the same responsibility. I welcome Amendment 12 and government Amendments 6, 8, 25, 26, 27 and 28, and shall welcome government Amendments 10 and 15 in the next group.

The difference between being consulted and requiring concurrence needs no emphasis. If you are consulted, what you say can be totally disregarded; concurrence means what it says. Despite all that I have said, I am sad to say that although the noble and learned Lord, Lord Keen, has taken his car a long way down the road of logic and constitutional sense, his vehicle has run out of fuel and failed to reach its logical conclusion.

The position can be summarised very briefly. Amendments 22 and 23 to Clauses 8 and 9, respectively, concern two clauses which, as drafted, give exceptionally wide powers to a Minister. Indeed, Clauses 8 and 9, I am afraid, are in the sadly standard form of donating, handing over or retaining power to the Executive which we now find in just about every Bill that comes before us.

The first six clauses, whatever other comments may be made about them, recognise that the government amendments in group three address the constitutional responsibilities. That is fine. Clause 7(3) gives the Minister an unconditional power to,

“allow or disallow Online Procedure Rules made by the Committee”,

provided that written reasons are given for doing so. In other words, he does not have to consult the Lord Chief Justice if he thinks that the rules put forward are not sensible or appropriate, or that they would cost too much money. That prevents the committee going off on a frolic of its own—or, indeed, putting forward rules with the concurrence of the Lord Chief Justice which, for example, involve unreasonable expenditure. That is very sensible. I do not cavil at the idea incorporated in Clause 7(3) and the individual responsibility of the Lord Chancellor in that regard.

However, taken together, Clauses 8 and 9 unbalance the relationship. The Lord Chief Justice falls out of Clause 8 altogether—he does not get a mention. He is reduced or left to the consultation process in Clause 9, which is entirely inconsistent with the provisions in the Bill that the Government amended to allow for concurrence rather than consultation. Under Clause 8, the Minister has power to direct that the rule committee shall include provisions to achieve the Minister’s purposes and that, when such a direction is given, the committee has no option but to comply within a reasonable time. It is that stark; the power is vested directly in the Minister.

It is one thing—and perfectly sensible—to protect the Lord Chancellor from some wild or absurd rule committee proposal. It is, with great respect, quite another for him to have an unconstrained power to give it directions: in effect, to tell it what to do. The Minister may, by Clause 9(2), also don the tarnished crown of King Henry VIII, who is not, of course, King Henry VIII to the noble and learned Lord, Lord Keen; I am not sure what he is to Scottish history—probably nothing. Would it not be wonderful to have a history in which Henry VIII counted for nothing? It would certainly be a convenience to this House if he did not count for very much.

So, if he wishes, the Minister may don this tarnished crown if he considers it necessary or desirable to facilitate the making of the rules. On closer examination, if you put these two clauses together, this arguably means that the Minister may overrule the very rules which were made with the concurrence of the Lord Chief Justice or his predecessor.

The Bill should be logical. The Lord Chief Justice’s concurrence to the exercise of these powers is elementary. The Bill and the government amendments now recognise it; the Minister has his safeguards in Clause 7(3); Amendments 22 and 23 make similar safeguards available to the Lord Chief Justice. I invite the Minister to refuel his car and keep right on to the end of the road.

[Lord Pannick]

My Lords, I declare my interest as a practising barrister. I too thank the noble and learned Lord, Lord Keen, for the important amendments which he has tabled, which will ensure that the concurrence of the Lord Chief Justice is required under Clauses 2 and 3. However, I have added my name to the amendments tabled by the noble and learned Lord, Lord Judge—in particular, Amendments 22 and 23—similarly to require the concurrence of the Lord Chief Justice for the exercise of the powers being conferred on the Minister under Clauses 8 and 9.

Clause 8 is an extraordinary clause. It would confer power on the Minister to require the committee to include a specified provision if the Minister thinks it is “expedient” to do so, and if the committee were to be so required, it would have a legal duty to comply. “Expedient” is the broadest possible word to define the scope of such a power. If Clause 8 is enacted as drafted, the requirement for the concurrence of the Lord Chief Justice under Clauses 2 and 3, which we all agree is necessary, would be rendered pointless. The Minister could simply override the views of the Lord Chief Justice in relation to any relevant matter under Clauses 2 and 3. I know that the noble and learned Lord, Lord Keen, does not share that view, and I look forward to him explaining why there is a limitation on what appears to be, and indeed is, the broadest possible drafting in the language of Clause 8. It contains no express limitation, and it seems very difficult to argue that there is an implied limitation that would prevent the Minister rendering pointless what is in Clauses 2 and 3 when the very purpose of Clause 8 is to give the broadest possible discretion to the Minister to give directions to the committee with which it must comply. Since the Minister has rightly accepted that, in the context of provisions about access to justice—which is what we are talking about—it is necessary for the provisions to require the concurrence of both the Minister and the Lord Chief Justice, there can nevertheless be no justification for conferring on the Minister by Clause 8 a power to override the views of the Lord Chief Justice on these important matters.

Clause 9 confers, as the noble and learned Lord, Lord Judge, said, a broad Henry VIII power on the Lord Chancellor to amend, repeal and revoke other legislative provisions whenever the Lord Chancellor considers it “necessary or desirable” in consequence of the Online Procedure Rules or to facilitate the making of Online Procedure Rules. Again, these are exceptionally broad powers, touching centrally on access to justice. For the same reasons that require the concurrence of the Lord Chief Justice for the exercise of powers under Clauses 2 and 3, it is necessary to require the concurrence of the Lord Chief Justice for the exercise of powers under Clause 9.

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Moved by

[Lord Judge]

22: Clause 8, page 8, line 13, at end insert—
“( ) The appropriate Minister may only give written notice under this section with the concurrence of the Lord Chief Justice.”

[Lord Judge]

My Lords, I understand the difficulty raised in our earlier debate by the noble and learned Lord, Lord Mackay: that other committees work on a different basis. However, all those committees were created before the constitutional change. What is more, the committee we are envisaging in the Bill will actually have power to decide how the other committees will operate—at any rate, in relation to the digital world. That makes it different, but the fact is that we have had a change to the constitution and the Bill should recognise it.

I have looked at Clause 8 and I would love a debate with the noble and learned Lord, Lord Keen, about what,

“achieve a purpose specified in the notice”,

might mean, and about the provision that the committee must do what is,

“necessary to achieve the specified purpose”.

It would be a wonderful debate. The difference between us is that he says that means the same thing as what it says in Clause 2. However, that is not what it says in Clause 2. Clause 2 relates to “specified kinds”, which is a completely different consideration. What in the end we have here is the ability under Clauses 8 and 9, taken together, of the Executive to decide how litigation shall be conducted. That is what is objectionable about it and I seek the views of the House.

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Moved by

[Lord Judge]

23: Clause 9, page 8, line 25, at end insert—
“( ) Regulations may only be made under this section with the concurrence of the Lord Chief Justice.”

[Lord Judge]

I am afraid I must ask for the opinion of the House on this amendment as well.

Division to Amendment 23 called. Tellers for the Not-Contents were not appointed, so the Division could not proceed.

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Moved by

[Lord Judge]

24: Clause 9, page 8, line 26, leave out “the Lord Chief Justice and