Nationality and Borders Bill

Debate between Lord Judge and Baroness Chakrabarti

Consideration of Commons amendments
Monday 4th April 2022 Lords Chamber

[Baroness Chakrabarti (Lab)]

My Lords, while supporting a number of other Motions in this group, I beg to move Motion C1. The refugee convention is both a memorial to Hitler’s victims and an essential component of the post-1945 rules-based order. It offers protection as of right, not dependent on executive largesse to pick and choose which refugees should be saved and which continent or conflict these should be escaping from.

Renowned jurists in your Lordships’ House and beyond say that the Bill violates the convention; Ministers disagree. Our intention is to resolve the argument with a modest but vital insurance policy, ensuring, for the avoidance of doubt, that our courts will resolve disputes of interpretation and action compatibly with the convention.

As a public and constitutional lawyer, I take the primacy of the other place very seriously. This is neither a money nor a manifesto matter. Indeed, it gives effect to the Government’s emphatic policy of refugee convention compliance in times when this could not be more important. No reasonable Government should object. If your Lordships’ House were not to insist on its inclusion in the legislation, we would fail in our duty to protect the international rule of law.

[Lord Judge (CB)]

My Lords, I support the noble Baroness, Lady Chakrabarti. It is perfectly obvious that the Commons reasons tell us that it agrees that the legislation should be compliant with our international obligations. The Minister has just told us that everything that we do will be compliant with them. I regret that a number of us take the view that these provisions do not so comply. The decision will ultimately be made by a court. If the Commons is right, that is well and good—fine, there would be nothing to argue about—but, if we are right and the view of the Commons is wrong, the judge would be bound by this legislation to disapply the convention and the protocol. No one would be able to say, “Ah, but the Commons reasons say that it is compliant”. The Commons reasons will not be in the legislation.

It is very simple: we respectfully suggest that the Commons should be asked to think again and reflect on the consequences if the advice that it is receiving is wrong and the advice that we are suggesting is right, and to avoid the problem that its own expressed legislative intention—that the legislation should be compliant—will prove to be wrong. It is very simple—all doubt can be avoided by this amendment.

Police, Crime, Sentencing and Courts Bill

Debate between Lord Judge and Baroness Chakrabarti

Lords Hansard - part one & Committee stage
Monday 1st November 2021 Lords Chamber

[Baroness Chakrabarti (Lab)]

My Lords, I think I am probably quite woke, and proud to be so; none the less, I support the broad thrust of the amendment from the noble Lord, Lord Moylan, subject to a couple of caveats. The first caveat is a slightly light-hearted one. As a serial offender, I gently say to noble Lords and friends across the Committee that the overuse of adjectives named for great writers does not always help the cause of human rights. We have all done it: “Dickensian” for socioeconomic rights and “Orwellian” or even “Kafkaesque” for civil liberties. “Chilling” is similar. In fact, an online wit once said of my overuse of these terms: “That Chakrabarti woman finds everything chilling. She sees refrigerators everywhere.” That is just a gentle point about the way we frame this.

I support the broad thrust of this, but the problem is not just about allegations of hate. It is about soft information, as it is sometimes called, or allegations that are not capable of sustaining a criminal charge and should not sit on databases for years and years, or indefinitely. This problem has been growing for many years with the rise of the database state and the potential to hold all sorts of data, even if it never matures into a charge. That is dangerous.

In my previous role as director of Liberty, I saw many cases of this kind. Not all involved free speech. I remember one woman who had allowed her small children to play in the park while she went to a kiosk, and people thought they were unattended. She was cautioned by the police because she was at the borderline, they thought, of neglect, but there was no question of pursuing a charge. None the less, this data sat around for years and was hugely detrimental to her when she sought to work in positions of care.

This is not just about the glorious culture wars that have got everyone to their feet today. It is not about your views on trans inclusion or not, but about whether so-called soft information or police intelligence that never matures into a charge should sit unregulated, off the statute book, as a matter of police discretion and administration. Whatever our views on the free speech point, we surely have to agree with procedural point that the noble Lord, Lord Moylan, was right to make clear.

I remind noble Lords that free speech is a two-way street. It is not just about the woke and so-called cancel culture; it is also about protesters who feel that they attend demonstrations and sit on police databases for many years just because they have been caught on CCTV. We in your Lordships’ House would do a great service to the nation if, whenever we consider these so-called culture wars that centre around identity politics and in particular free speech, we remember that it is a two-way street. It is people on either side of very contentious arguments who sometimes want to “cancel” each other, and we should remember that.

My final point is a substantive one about the way I urge the Minister to take this forward. Given that the concern is about not just hate incidents but all soft information that may be held indefinitely, can the Minister’s response today—or on Report, with, I hope, substantive government safeguards—be comprehensive and address not just non-crime hate incidents but all soft intelligence and all police data about individuals that could be to their detriment going forward, whether it touches on free speech rights or other rights such as Article 8 rights to privacy and autonomy? Can this soft information that has been held administratively by the police be on the statute book and brought under proper regulation and control?

[Lord Judge (CB)]

My Lords, the issue is very simple. We surely have to decide whether hate crime and non-hate crime, and all their different manifestations, should be left to police guidance, or whether the issue is far more important than that and should be brought under the process of Parliament—legislative control and legislative process. To me, the answer is perfectly clear: the latter.

Judicial Pensions and Fee-Paid Judges’ Pension Schemes (Amendment) Regulations 2019

Debate between Lord Judge and Baroness Chakrabarti

Wednesday 20th February 2019 Lords Chamber

[Baroness Chakrabarti (Lab)]

My Lords, in a crowded and noisy political landscape, it is easy to overlook the importance of protecting our judiciary and making adequate pensions provisions for our people. Forgive me for suggesting this, but this House is perhaps uniquely qualified to value the importance of both.

I begin by politely disagreeing with the concerns expressed by my noble friend Lord Adonis a moment ago. I have no concerns about the Supreme Court’s ability to deal with any disputes relating to judicial pensions. Of course, the Opposition do not seek to divide the House on the interim provision set out by the Minister but I want to take this opportunity to urge him not to kick the can down the road into next year and beyond. It is concerning that the Government have recently had a number of disputes of this kind with judges, including the defeat referred to earlier. I agree with a number of the points made by the noble Lord, Lord Beith, about the importance of a confident and, frankly, happy judiciary to which we can adequately recruit to protect our reputation as a rule-of-law nation, whether we are inside or outside the EU. We need to boost our judiciary’s morale now and for some years to come.

I agree with the one-year extension of this scheme but concerns over judicial pensions need to be considered in the broader context of the austerity measures that hit the Ministry of Justice particularly hard, including budget cuts of a third since 2010. Savings made in the revised pensions schemes are just one area where spending has been seriously squeezed. Devastating reductions to the court estate, further proposals for the relocation of case management functions, listings and scheduling, new off-site service centres and service centres supervised by authorised staff, not judges, are some of the issues we discussed last year in the context of the then courts and tribunals Bill.

We on these Benches are concerned about the judgment to which the Minister referred. A finding against the Government relating to unlawful age discrimination is very concerning. Going forward, I urge the Government, in as friendly a manner as possible, to consider the acute shortage of High Court judges. As I imagine many people in the Chamber will be aware, senior lawyers and practitioners are not putting themselves forward for High Court appointment—including some highly qualified people who would be keen to complete their prestigious careers in what is a vital public service in this country. Too many positions have been left vacant for years with the very slight prospect of them being filled in the next few years. Time and again one hears that this recruitment crisis is in no small way affected by the change in judicial pensions.

We must ensure confidence in our legal system, perhaps more than ever in the times we are all attempting to navigate now. We need our judicial Benches—the entire judiciary, whether tribunal panel members, chairs, district judges, county court judges or circuit judges—to be made up of exceptional individuals. Those stressful and expert roles need to be properly remunerated for that to continue. I urge the Minister and the rest of the Government to sit down promptly with judges and have a serious discussion about how to fund that vital part of our constitution going forward, and how to boost morale and recruitment to our judiciary. With that plea to the Government, there will be no objection from these Benches to this interim measure.

[Lord Judge (CB)]

My Lords, I had not intended to speak but perhaps I should. I declare an interest as having been Lord Chief Justice when the shocking new arrangements for the judicial pension were imposed on the judiciary unilaterally by the Government. There was consultation—of the kind that enables the Government to do exactly what they like—but it was imposed on the judiciary. There was a unilateral change to the pension arrangements under which a significant proportion of the judiciary were working if they were below a certain age and had not given so many years’ service. The basis on which they joined the judiciary, which was clearly understood, was changed. That represented a betrayal. It greatly damaged confidence in the whole idea of a successful practitioner—a barrister or solicitor—seeking judicial appointment. If the Government could unilaterally change the arrangements, there was no point. We still suffer the consequences of that. There is nothing wrong with the present measure we are considering, but the consequences of what happened between 2010 and 2014 are with us still.

If I may answer the point made by the noble Lord, Lord Adonis, about the arrangements that are currently before and have been before the courts, the judges trying those cases are not those who will have been affected by these dramatic changes. The various matters raised by the noble Lord, Lord Beith, and the noble Baroness, Lady Chakrabarti, are well known. There is no point using this opportunity to stand on a hobby-horse to repeat them, but they do not go away. That is an issue the ministry has to grapple with as soon as practicable.

Courts and Tribunals (Judiciary and Functions of Staff) Bill [HL]

Debate between Lord Judge and Baroness Chakrabarti

Committee: 1st sitting (Hansard): House of Lords
Tuesday 10th July 2018 Lords Chamber

[Baroness Chakrabarti]

My Lords, currently the Bill provides that regulations under Clause 3 shall be made under the negative resolution procedure and then interact with rules of court to be made and come into force without the need for parliamentary scrutiny altogether. This stipulation of which judicial functions may be delegated and to whom, and an authorised person’s requisite qualifications or experience, is to be provided with quite light parliamentary scrutiny. I would be grateful to the noble and learned Lord or the noble Baroness if they would say a little more in their reply about the relationship between the regulations and the rules for those purposes.

Since the fall of the Prisons and Courts Bill last year, there has been no parliamentary scrutiny, even by the Justice Committee, of the Government’s ambitious programme of expensive modernisation measures or the associated court closures and staff cuts. By providing that regulations in the Bill be made under the negative resolution procedure, the Government seem once more to be seeking to avoid proper parliamentary scrutiny, even in relation to quite significant changes to our justice system.

At Second Reading, in response to similar concerns, the Minister said that,

“the purpose of primary legislation is to implement law, not to review that which we can already do”.—[Official Report, 20/6/18; col. 2053.]

On reflection, I respectfully disagree with that constitutional analysis. To my mind, the legislative process is to create law and certainly, at times, to review, direct and even constrain government policy, particularly when it has the potential profoundly to impact on our justice system. Without careful scrutiny and additional safeguards, this governmental drip feed may be capable of eroding some of our most fundamental institutions. I beg to move.

[Lord Judge]

My Lords, there should be an upgrade here, in accordance with the proposed amendment.