European Union (Withdrawal) Bill

Debate between Lord Lamont of Lerwick and Lord Pannick

Monday 18th June 2018 Lords Chamber

[Lord Lamont of Lerwick]

I would like to make a little progress, if I may. How would the will of Parliament be determined? It would be determined through political parties in the normal way, put down in the form of Motions in the House of Commons. I put it to the House that, really, this long and convoluted procedure would have little difference from the way Parliament would behave without this amendment being put in place at all.

Subject to the clarification from the Leader of the House about the Motion being justiciable and the reasons why we want it to be unamendable, I strongly support the amendment tabled by the Government and urge the House to reject that put forward by my noble friend Lord Hailsham.

[Lord Pannick]

My Lords, the noble Lord asks about justiciability. It is one of the most fundamental principles of our constitution that the courts do not and will not regulate proceedings in Parliament. Therefore, a court would presume, in the absence of the clearest statement to the contrary, that none of these amendments—in particular Amendment F3—is intended to depart from this fundamental principle. That is especially so when the mover of the amendment makes it clear that he does not intend to depart from that fundamental principle. In answer to the question from the noble Lord, Lord Lamont, it seems to me that the sanctions for any breach would be political, but they certainly would not be legal.

European Union (Withdrawal) Bill

Debate between Lord Lamont of Lerwick and Lord Pannick

Committee: 2nd sitting (Hansard - continued): House of Lords
Monday 26th February 2018 Lords Chamber

[Lord Lamont of Lerwick]

Against the noble and learned Lord’s will. There was also an attempt to get an opt-out, which the European Court of Justice said was not valid. I see that the Minister is agreeing with me. I believe that is a correct account of what happened. It was struck down. The case in which it happened was, I think, Aklagaren v Hans Akerberg Fransson.

[Lord Pannick]

Would the noble Lord accept that there are many areas of EU law which this country has opposed but which have nevertheless become part of EU law? This Bill seeks to exclude none of them from retained EU law, other than the charter. Why is that?

[Lord Lamont of Lerwick]

That is very much my argument. For reasons that I wish to develop, I agree very much with the noble Baroness, Lady Deech, and what was said by my noble friend Lord Faulks about the confusion and conflict that this will cause between the role of the European Court of Justice and our own courts. The President of the Supreme Court has already called for further clarification of the relationship the Supreme Court will have with the European Court of Justice. It seems to me, for reasons I am about to give, that this would be made even worse if we incorporated the charter into the Bill and into UK law.

The retention of the charter would lead to real problems of uncertainty and confusion. Above all, retaining the charter would give the ECJ even more continued influence over our courts. I accept what the noble and learned Lord has said, that there is going to be a relationship for a while with the jurisprudence of the ECJ, but incorporating the charter will give much more opportunity for what people have called judicial adventurism from the European Court of Justice, as it continues to expand the interpretation of the charter. This is not an obsession of Conservatives. I draw the Committee’s attention to what the late Lord Bingham, I think, said in evidence to the House of Lords EU Committee in 2016. He said that although,

“the European Court of Human Rights is a very benign institution … the European Court of Justice in Luxembourg has predatory qualities to it that could be very inimical to some of our national practices”.

That is a reference to the expansionist activities of the ECJ. The charter, as many people know, is extremely loosely worded. The risk of leaving the charter in place is that it allows the ECJ, while it still has jurisdiction over us and our Supreme Court, to expand the charter into new areas. I am not suggesting that the rights we have are frozen for ever or should not be expanded, but merely that that is something that should be decided in this country by our Parliament.

I am also concerned, because of this and the expansion of activities of the ECJ, that if the charter were incorporated our courts would acquire the power to strike down statute on the basis of incompatibility with the charter, which is the point that the noble Baroness, Lady Deech, was making. The noble Lord, Lord Pannick, referred to the Factortame case, which was a notorious example where an Act of Parliament was actually struck down. We do not want to create another situation in which domestic courts can strike down Acts of Parliament.

It is the European Court of Justice that interprets what the charter means within the European Union, so if the charter is incorporated into law, what relationship is then going to exist between the Supreme Court and the ECJ? As the ECJ continues to develop its interpretation of the charter, we would be on a road where we had to take it more and more into account. On the basis of what has been said, we must avoid that confusion.

If there are gaps in the rights, we have an opportunity to incorporate them with primary legislation. For example, people have been saying in some of the debates that there are various matters relating to the environment that are not covered. However, we will have a new environment Act and a new environment agency. That seems to me to be the way to cope with any rights that are not fully covered, and it is far better to avoid the confusion of incorporating the charter into UK law.

Policing and Crime Bill

Debate between Lord Lamont of Lerwick and Lord Pannick

Report: 3rd sitting (Hansard): House of Lords
Monday 12th December 2016 Lords Chamber

[Lord Lamont of Lerwick (Con)]

My Lords, I shall speak to Amendment 187. I do so with very great hesitation. I apologise to the noble Lord, Lord Pannick, for speaking before him. I feel great reticence, speaking on this as a non-lawyer. That may be key: I have got in early to speak before I can be corrected by all the lawyers. I have not entirely made up my mind. I am speaking to the amendment; I will listen very carefully to what the Minister says.

The reason I am speaking in the debate at all is because I feel I owe it to the memory of my friend Lord Brittan. He was also the friend of my noble friends Lord Howard and Lord Deben. I saw a lot of Lord Brittan in the final weeks of his life. I saw the tremendous suffering caused to him by being wrongly accused of a rape offence. The Henriques report concluded that the proceedings against Lord Brittan should have been ended much earlier. It catalogued a whole series of mistakes, in this case and in others. There was a total of some 43 errors.

It is the case of Lord Brittan that prompted me to intervene, but the last thing that I would argue, or that he would have wanted argued, is that this is about important people or public people. This is about everybody who might find themselves in this sort of situation.

I acknowledge, too, the argument that the noble Lord, Lord Paddick, to some extent refuted about why there should be an exception only for cases of a sexual nature. Personally, I would toy with the idea of going much wider than just offences of a sexual nature, as I believe Commissioner Hogan-Howe would also argue.

I have seen the letter sent by the End Violence Against Women coalition to Cliff Richard and Paul Gambaccini. It talks about the amendment proposing defendant anonymity. It is not. A defendant is a person who has been charged. Up to that point they are accused. The noble Lord, Lord Paddick, referred to the ambiguity of the word “accused”. I was glad he did, because I wondered whether I was the only person who felt this as a lay man. It is not very clear to me but, as I understand it, “accused” might include interviewed under caution or arrested under bail. Is it really right that a person’s name should be released to the public and the press simply because they have been interviewed under caution when no further action is taken?

I remember particularly vividly a case which, while not a sexual case, made a big impact on me. It was the case of the teacher, Mr Jefferies, who lived in Bristol in a flat next to a poor girl who had been murdered. I do not know whether it was the police who released it or how his name came to be in the public domain, but I cannot imagine the suffering. I think Members of this House have had letters from Mr Jefferies about what he suffered and the damage to his reputation. People just assume that the damage to someone’s reputation will go away because charges do not follow but that is not reality. That is not what happens; there is always an element of the public who think, “No smoke without fire”, and there is permanent damage to an individual’s reputation, which can be absolutely life shattering.

Naming people before charging undermines the presumption of innocence at the heart of our system of justice. Usually, when people’s names are released it is seriously damaging to their reputation, even if they were not charged but just held for a period or their home was searched. The public are not always very rigorous in observing, in their own discussions or in what is written, the principle that one is innocent until proven guilty.

I also wonder, as a non-lawyer, about the effect on the trial itself. It is one thing to talk about the effect on the individual, but what about the effect on the trial of releasing someone’s name before it? How quickly will a jury be able to forget the evidence that has been put forward?

The argument that is made for pre-charge publicity is that it will bring forward further possible victims and allegations that can be followed up. Therefore, crimes can be pursued, but does that really have to be pre-charge? Such further evidence can also come forward after a person has been charged. We know that such situations can lead to false claims being made. I am not suggesting for one minute that false allegations of rape are common—they are not; I know that—but some of the evidence we have seen of historical sexual abuse has indicated that there have been cases where some people have come forward with allegation that are completely false. They may have seen the names of people on television and somehow convinced themselves. Sometimes it is people who are not very well who make these allegations.

It seems to me that the rights of the innocent are extremely important. I hope that, whatever arguments the Minister puts forward, she will not use the phrase “It is a question of finding the right balance” too much. The rights of the innocent are extremely important. The noble Lord, Lord Paddick, quoted the old maxim, which I was going to quote myself, “Better that 10 guilty men go free than that one innocent person be convicted”. I have the greatest possible sympathy with the amendment of the noble Lord, Lord Paddick. I will listen to the Minister and then make up my mind, but regardless of whether I vote or do not vote for the amendment, I absolutely want to be convinced that something will be done about this situation. Nothing has been done about it and I cannot imagine that we will be happy if the amendment is rejected and nothing further is done. I remain convinced that there has been a lot of suffering and a lot of injustice done in the present situation.

[Lord Pannick (CB)]

My Lords, this is a very difficult issue. The speeches that your Lordships have heard from the noble Lords, Lord Marlesford, Lord Paddick and Lord Lamont, make a very powerful case. I cannot agree with it and I shall briefly attempt to explain why. The starting point is that we must all, of course, have enormous sympathy for Sir Cliff Richard, Paul Gambaccini, Lord Bramall, Harvey Proctor, the late Lord Brittan—and, of course, Lady Brittan—and the many others who have been wrongly accused of sex offences. They have been subjected to what is, on any view, an outrageously unfair procedure. I agree with the noble Lord, Lord Lamont, that they have been caused irreparable harm by a combination of the absence of any credible evidence for the allegations, the length of time it has taken the police to investigate these matters and the contempt of the police and the public for the presumption of innocence, to which the noble Lord, Lord Lamont, averted. In a famous 1935 case, Lord Sankey, the Lord Chancellor, called the presumption of innocence the “golden thread” that runs through our criminal law. It is very regrettable that so many of us, and our newspapers, proceed on the opposite principle that there is no smoke without fire, even when the smoke is no more than the hot air blown out by deluded fantasists. On that, I entirely agree. There is simply no dispute about that.

The question is whether either of these amendments is a sensible way forward, and in my view they are not for three reasons. First, in the context of alleged sex offences, publicity can lead, and has led, to witnesses coming forward with supporting evidence that helps to convict a person who is rightly accused and—this is the way the world works—it may be that only on hearing that an allegation against a named person is being taken seriously by the authorities do potential witnesses who say that they suffered the same problems and attacks in the past have the confidence to come forward. The noble Lord, Lord Lamont, pointed out that these people can come forward after a charge is brought, but the problem is that if supporting witnesses do not come forward at an earlier stage, a charge may never be brought. The prosecution authorities may not proceed. Of course, as the noble Lord, Lord Paddick, rightly said, some of those who come forward will not be telling the truth. That is undoubtedly correct, but the legal process addresses that issue in a trial. It is not sufficient that these amendments would allow a judge to give permission to publicise the identity of the person who has been accused. I do not see how a judge will be able, in any particular case, to assess the likelihood of unknown witnesses coming forward.

The second reason why I am troubled by these amendments is that there is, sadly, still great reluctance by victims to report allegations of rape and sexual offences. There is no ban on publicising the names of persons suspected of other serious offences, such as murder or terrorism, and—the noble Lord, Lord Rosser, made this point in Committee—there is real concern that to give a special privilege to those accused of sexual offences could exacerbate the concern of many alleged victims that the law does not take sexual offences as seriously as it should, so making it even less likely that they will report the allegations. I do not think it is an answer for the noble Lord, Lord Paddick, to point out that the law grants anonymity to the alleged victim in sexual offences cases. The alleged victim is granted anonymity because of concern that publicity would deter complainants from bringing forward their allegations, which is an entirely distinct argument.

The third reason is the one given in Committee by the noble and learned Lord, Lord Judge, who I am pleased to see in his place. It is that under these amendments it would be unlawful to tell the public that a person suspected of a serious crime has been arrested and so has lost their liberty, albeit for a short period. I think the noble Lord, Lord Paddick, misunderstood this point, which was not that a person could be held incommunicado.

Prohibiting publication of who is accused and of what in this context would be wrong in principle. It would deflect attention away from the true mischief, which is the lack of respect for the presumption of innocence. Indeed, as the noble Baroness, Lady Williams of Trafford, said from the Front Bench in opposing a similar amendment in Committee, at col. 1466, to enact an amendment of this sort conferring anonymity would serve only to undermine the presumption of innocence of those who are accused of sexual offences.