Police, Crime, Sentencing and Courts Bill

Debate between Lord Judge and Lord Beith

Committee stage
Wednesday 24th November 2021 Lords Chamber

[Lord Beith (LD)]

My Lords, this is a simple and straightforward amendment implementing the wishes of our Delegated Powers and Regulatory Reform Committee. It deals with the “serious disruption to … an organisation” and “serious disruption to the life of the community” provisions, which, instead of being set out in the Bill, are to be the subject of a statutory instrument, a draft of which, or parts of which, have already been circulated by the Government.

The Delegated Powers and Regulatory Reform Committee was quite clear that the affirmative procedure for a statutory instrument is wholly inadequate to anything as important and fundamental as this. An affirmative statutory instrument, being unamendable and debated only once in each House, was not in its view adequate. It considered that the definitions of the expressions in question should be added to the Bill to give Parliament the opportunity fully to debate them. It said:

“We consider that the definitions of the expressions ‘serious disruption to the activities of an organisation’ and ‘serious disruption to the life of the community’ are of such significance that they merit the fuller scrutiny afforded to Bill provisions and should therefore appear on the face of the Bill.”


It is not clear to me that it was necessary to have got into this territory at all. There is a complex potential conflict with ECHR provisions which will probably lead to the matter being resolved in the courts in any event. For us to allow Ministers to proceed by statutory instrument on a matter which could have such a profound effect on how these provisions operate in practice does not seem wise. I therefore strongly support the views of the Delegated Powers Committee and believe that either the Government should go ahead and include these provisions in the Bill or they should take this element out altogether.

[Lord Judge (CB)]

My Lords, we have not had time yet for all of us to read the report from the Secondary Legislation Scrutiny Committee or, for that matter, that of the Delegated Powers and Regulatory Reform Committee, whose paper is entitled Democracy Denied? The Urgent Need to Rebalance Power between Parliament and the Executive. I have read that, but I did not get round to the first.

We have to support our committees—that is why we have them; they are cross party. This is a tiny amendment of significance. The amendment does not propose any interference with the power to address the problem of serious disruption. It is not intended to address that. The submission is that the way in which the legislation is drafted, in Clause 55(4) and Clause 56(6), is completely unnecessary to enable justice to be done in whichever way the Government think it is appropriate for justice to be done.

Secondly—this is a bit naughty of me—I think the provision reflects a growing constitutional wheeze, what I call the “blank cheque wheeze”. It is this: the Executive tell the legislature to please legislate, and the legislature legislates—and, when it legislates, the Executive then tell the legislature what the legislation means. That is a blank cheque that we are being asked to give in these clauses.

As to the words, I know that it is quite late at night and so I shall be short, but do any of us here not understand two simple English words—“severe disruption”? I mean, come on, even the lawyers among us cannot think of a lot of differences. “Severe”, “serious”—get out your thesaurus. They are simple English words, and the two words put together make a perfectly clear picture of what is being addressed and sought to be protected.

This is unnecessary and a wheeze. We really must not allow the Executive to start treating this way of legislating—called in more elegant terms tertiary legislation —by saying, “We’ll tell you what it means when we get around to it”. The Secretary of State has started to tell us what it means. The place where we should be told what it means, if it does not mean what it says—and I think that it does mean what it says—is in a definition clause within the primary legislation.

Courts and Tribunals (Online Procedure) Bill [HL]

Debate between Lord Judge and Lord Beith

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.

Census (Return Particulars and Removal of Penalties) Bill [HL]

Debate between Lord Judge and Lord Beith

Committee: 1st sitting (Hansard): House of Lords
Tuesday 4th June 2019 Grand Committee

[Lord Judge (CB)]

My Lords, these are simple amendments directed to an issue of principle. The issue is very simple. It is a criminal offence to fail or refuse or neglect to complete the census form—note “to complete it”: that is, to answer every question. Over the years, it has come to be accepted that some of the answers should not be matters of obligation—in particular, in 2000, providing answers to a question relating to matters of conscience such as religion; or, now, in the current Bill, sexual orientation and gender identity, matters which are obviously intensely personal. The reasons are obvious and I support them.

It is plainly the intention of the legislation that each individual responding to the census will have a choice on these questions: you may choose to answer or you may not. If you choose not to answer, you will, in the words of the legislation, not,

“be liable to a penalty”.

Even if you are prosecuted, no penalty could be imposed: you would get an absolute discharge.

What, then, is the problem? Why am I making a fuss? I am making it in the company of the Constitution Committee, of which I have the privilege to be a member, which expressed its concerns in one of those very short, simple letters. In summary, it comes to this: because no legislative provision expressly decriminalises the choice not to answer, the Bill should be amended explicitly to state that such a failure is not a crime.

By letter dated 31 May, the Minister gave a very considered, lengthy reply to a very short letter. My experience is that, on the whole, those with the best points write short letters. However, ignoring that general experience, which may not be true here, I have discovered from the letter that, based on a starting point for the legislation in 2000 relating to religion—dare I point out, before we had a Constitution Committee?—the promoters of the Bill confused, conflated or perhaps simply failed to understand that the removal of the risk of a penalty meant that answering or not those questions was voluntary, and therefore there was no criminalisation. They confused crime and penalty. They are distinct concepts. Normally, the conviction comes and the penalty follows. What we have done—what is proposed here and was proposed and carried in 2000—is to wipe out the penalty but leave the crime. At the very least, it is arguable—I would say strongly arguable—that what we have now, and will continue to have without the amendments, is a crime of not answering the question but no penalty for choosing not to do so. That does not seem very sensible.

It is obvious that the Bill’s objective to decriminalise any such failure. That is the point of it and why it is supported. Why is conduct that carries no penalty and is not intended to represent even minute contravention of the criminal law allowed to disfigure it by remaining on the statute book? I respectfully suggest that that is wrong in principle. The Bill should be amended expressly to decriminalise any such conduct and any necessary amendments in relation to questions about religion in the 2000 Act made subject to identical amendments within the Bill. That is the purpose of the amendments.

It is not an answer that the Crown Prosecution Service would not prosecute. It is not an answer that if the Crown Prosecution Service prosecuted and someone were convicted, no penalty would be imposed by the court. I mention that in this context. We hear rather a lot about private prosecutions these days. If there were a private prosecution—I know that this is hyperbole; there would not be, but let us examine this as a matter of principle—the court would no doubt have in mind that on conviction there would inevitably have to be an order for absolute discharge. Of course it would. The court might rage in the way that old judges did but do not any more because they are much more polite than they used to be. It might rage against the absurdity of any such prosecution, but I respectfully suggest that it could not as a matter of certain law say that the failure to answer the question did not constitute a criminal offence. We really cannot have that situation; there must be certain law about this. We must do better and decriminalise a failure to answer such questions. I beg to move.

[Lord Beith (LD)]

My Lords, I support the noble and learned Lord’s amendment. I apologise to the Committee that I was not able to speak at Second Reading, but the discussions in the Constitution Committee, of which I am also a member, have brought to light the seriousness of this problem within what is otherwise a highly commendable and necessary Bill. I am afraid that I have form on this subject: on 25 March 1975, I moved an amendment to the census order—it was possible to move amendments to those statutory instruments unlike to almost all others—precisely to assert the principle that, so far as the procedure allowed in that case, the state should not turn people into criminals because they had some good conscientious reason for declining to answer questions in such areas as were not fundamental to the state knowing where its population was, how many people there were and in what kind of properties they lived.

I remain of the view that it is undesirable for the state to extend its reach by way of criminal offences that put people in that position. As my noble friend did in the context of the previous debate, I hope that the guidance and what is said to people by those who hand out and collect census forms will assist in reassuring them, but, like the noble and learned Lord, Lord Judge, and the Constitution Committee, I believe we are legislating unsatisfactorily. The primary reason for doing so given by the Minister in his careful and lengthy letter was that, unless we made certain further provisions to tidy up other legislation, we might create a degree of ambiguity. I found that unconvincing; I do not think any court would be in any doubt as to what Parliament had intended if it phrased this part of the legislation so as to make it quite clear that it was not creating or continuing a criminal offence of failing to answer questions relating to sexual identity and gender.

Everybody seems to agree with what we are trying to do. Let us for heaven’s sake do it in a way that makes our legislation both sensible and not threatening to individuals who perhaps do not view these matters in the detail that we have been required to do today.

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

Debate between Lord Judge and Lord Beith

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

[Lord Judge]

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

[Lord Beith]

My Lords, one of the things that might be reviewed is how the arrangements for delegating decisions work in the context—mentioned by my noble friend—of a large number of litigants in person. This number has increased since the withdrawal and limiting of legal aid. Court officials find themselves giving forms of advice to unrepresented litigants, if only to ensure that the court can proceed with the minimum of chaos and disruption. A clerk in a county court, for example, may simply remind the litigant of what the court needs to know in order to resolve a case and what would not be advantageous to spend lots of time on. That is a valuable function. Of course, legal advice can go far beyond that into areas on which it would be wholly inappropriate for a court official to give, or purport to give, advice. Wise officials make quite clear the limit of what they can say.

By whatever mechanism we review these provisions, whether it is that suggested in the amendment or the reasonably adequate existing ones offered by the Justice Select Committee and Constitution Committee, we should look at them in a context in which officials are being asked for advice or guidance by people who are not represented.

Policing and Crime Bill

Debate between Lord Judge and Lord Beith

Committee: 5th sitting (Hansard): House of Lords
Wednesday 16th November 2016 Lords Chamber

[Lord Beith (LD)]

My Lords, I have great respect for both my noble friend Lord Paddick and the noble Lord, Lord Pannick. On this occasion, it is with the former, rather than the latter, that I agree, although one takes on either of them with a measure of reluctance and trepidation. I was partly struck to say something in this debate when the noble Lord, Lord Pannick, asserted that to impose obstacles to convicting the guilty is a very high cost. We actually pay this cost throughout our criminal justice system. It would be a lot easier to convict some people that we and the police think are guilty if we did not have to prove that they actually are, to the satisfaction of a jury, or if various procedures, such as disclosure, did not have to operate—the prosecution must disclose any evidence it comes across that might support the innocence of the accused. Many of these things make it more difficult to convict people, but they are part of the protection for the innocent and uphold the principle that someone has to be proven to have committed an offence.

Much of the argument about whether the kind of prohibition which my noble friend has advanced—and I agree this should be done—revolves around whether people who have had similar experiences of the accused will come forward. There are several points at which, if this clause were in operation, they would still be able to do so: between charge and trial or between the various stages of a trial process, for example between committal and trial. I am not an expert in this, but it appears that in most of the cases where this has happened it has been at that stage, rather than at the stage of initial accusation, except perhaps in some of the most notorious cases, which have been referred to this afternoon, where injustice has been done by publicity.

As the noble Lord, Lord Faulks, correctly pointed out, the proviso has to be precisely worded. The point of the proviso is that anonymity might be broken if the police and prosecuting authority consider that they would like to go to trial and the evidence is not quite strong enough for them to do so but there is some knowledge that it is likely that people will come forward. A case where there is substantial evidence that does not quite meet the Crown Prosecution Service’s normal criteria, yet there is reason to believe that there may be others, might be just the circumstances in which an earlier breach of anonymity would be justified.

The weakest point put forward by the noble Lord, Lord Pannick, was the one about gossip and speculation. The whole process is attended by the risk of these. If the name of an accused person cannot be disclosed prior to charge, there may be those who seek to gossip about it. That is something we should try to deal with in whatever way we can. But of course the same applies to the anonymity of the victim. Most of us have read newspaper stories which speculate and hint at who the victim might be in such a case. We cannot use that as a reason not to afford protection to the victim, and we should not use it as a reason not to afford protection to the accused at a stage in the process when it is unreasonable to visit a punishment more severe than applies in many other criminal offences, arising out of the publicity and shame and loss of office and other consequences that have attended some of the cases that we have heard about.

The noble Lord, Lord Pannick, produced several convincing examples of drafting that might be improved in this Bill, but that is what it was—the principle needs to be addressed, and it is not adequately satisfied by guidelines. Even though the better the guidelines the better the situation, guidelines fall short of the value of a firm principle enshrined in law, which the criminal justice system can itself uphold.

[Lord Judge (CB)]

My Lords, I introduce what I want to say by suggesting that we need to question certainties that anybody advances in this debate. I went to, was well informed by and was deeply sympathetic to, the meeting arranged by the noble Lord, Lord Paddick, where we heard the overwhelmingly poignant stories of Mr Gambaccini, Lady Brittan and Sir Cliff Richard, and I thought, “That’s a certainty, isn’t it?”. But then I remembered an experience that I had when I was a young member of the Bar, of a client in the Midlands arrested for murder. If he was arrested, it meant that there were reasonable grounds for suspicion—and there were. It was quite a notorious case, and the publicity given to his arrest meant that two people came forward who were quite unconnected with him and were able to establish an alibi for him. Another man was subsequently convicted for the murder, so this man was totally innocent. If those people had not come forward, he would have remained in custody pending trial. They might have come forward by trial, but he would have been in custody for many months before his trial began—and, if they had come forward then, the argument would have been, “How can they be so sure that they were together or they saw him in this particular place on this particular night?”.

So there are certainties both ways. I want to contribute to the debate by making two separate and additional points to the ones that have been discussed—perhaps one to meet a point raised in discussion. It is said that rape and sexual crime is particularly awful, and there is usually plenty of other evidence when other crimes are concerned. Well, with murder, the allegation that a mother has killed her children is not the kind of allegation that can be trivialised. There are cases in which mothers alleged to have killed their children have not done so. Noble Lords are all familiar with the phrase “cot death”, although it summarises a much more complex idea. There the question is whether the children were murdered at all, or whether they died from natural causes. It is a terrible allegation to have to face. Do we say, “Ah, well, it does not matter if they have publicity”?

Then there is terrorism. Half the time with terrorism, if the police did not act before the bomb went off, on the knowledge that they have, we would be blown up. So terrorist offences usually consist of conspiracies and offences contrary to various terrorism Acts which never came to fruition. The whole case depends on demonstrating that there was going to be a bomb, or whatever, and it never happened. We have to be careful about the sorts of cases that we are thinking about. I suspect that causing death by dangerous driving is a dreadfully serious allegation to the public mind—and certainly, if it is said to be accompanied by drink, of course it is a dreadfully serious allegation, because it is a dreadfully serious crime.

I ask noble Lords to pause. I understand that sexual crime now seems to be at the forefront of public concern, but let us not just dismiss those other crimes as really not so important, so we do not really need to preserve the anonymity of the accused for them because it does not really matter so much. We need to have a clear principle about this. I think that we should have a principle that either says yes or no to publicity or anonymity at various different stages. But I do not, I regret to say, share the view that sexual crimes should be treated as entirely one-off, on their own, and separate.

There is one more point that I want to add to the discussion. We are working on the basis that the points made by the noble Lord, Lord Pannick, are drafting points—I do not share the criticism made of him. But drafting points matter in this context. Let us pause to consider what arrest means, if we are saying that “don’t disclose anonymity” stands on arrest but, once the charge happens, the anonymity goes. Pitch the time where you like—arrest means that there are reasonable grounds for suspicion. It means that you are incarcerated; it means that you have lost your liberty and that, lawfully, you have lost your liberty, and that it is justified because there are reasonable grounds for suspicion. I have concerns about a blanket prohibition imposing silence on the media in circumstances where somebody’s liberty has been taken from him or her, even if for a short time. That is not how we work in this country. We do not want people locked up for any time at all without anybody being able to say so. Those are considerations that I suggest should be added to the thought that we give to the issues in this debate.