European Union Referendum Bill

Lord Mackay of Clashfern Excerpts

Wednesday 18th November 2015 Lords Chamber

[Lord Wallace of Saltaire (LD)]

My Lords, since the noble Lord, Lord Green of Deddington, mentioned our conversation, perhaps I may say one or two things. We all recognise that our current franchise and our concept of citizenship are a mess and need attention. We are about to debate under some of the following amendments how much attention we should give to tidying up our franchise now, or whether it should be addressed more broadly later. On citizenship, I am very struck by the extent to which dual citizenship extends across Britain and elsewhere. I asked several times when in government how many dual citizens there were scattered around the world, and the answer was always that we do not know. I recall a visit to northern Cyprus in which my driver told me that he was a British citizen, a Turkish citizen, a Greek-Cypriot citizen and a Turkish-Cypriot citizen, and he enjoyed choosing between them as he travelled as to which passport he might take. As the noble and learned Lord, Lord Goldsmith, said, the question of citizenship is extremely fuzzy.

The question of when we would have the referendum is addressed in the amendment. I hope we have it before 1 January 2017. I have some doubts as to how far we should address this broader issue now, in this specific case, although we will address it again under further amendments.

Finally, I congratulate the noble Lord on his argument that we should use this as an example of where we might harmonise with other member states. I assume that that comes from his commitment to ever-closer union.

[Lord Mackay of Clashfern (Con)]

My Lords, it was my privilege to participate in presenting to your Lordships’ House the citizenship Bill in 1982, so I am sorry to think that it is all in a mess—but these things happen sometimes. I was inclined to think that, in principle, this was a sound amendment, as it would be right that only British citizens should have a vote in this referendum. That is my position in principle, and I am glad to hear that there is some way in which that can be met. However, my difficulty now is that, in a sense, the franchise will depend on the date on which the referendum is called, which is an unfortunate consequence of the practical need for the changes. Therefore, I am very willing to listen to my noble friend when he explains why I should not support this amendment.

Arbitration and Mediation Services (Equality) Bill [HL]

Lord Mackay of Clashfern Excerpts

Friday 23rd October 2015 Lords Chamber

[Lord Mackay of Clashfern (Con)]

My Lords, I thank the noble Baroness, Lady Cox, for introducing the Bill and for introducing it so clearly in the speech we have just heard. My purpose is to say a word or two about arbitration and the position it holds in the law of England and Wales.

The freedom to profess and practise religion is one of the fundamental freedoms of our country. When people agree in a fully voluntary and unintimidated way to a particular request relating to their religion, it is right that that should be respected. However, there is a certain amount of subtle pressure involved sometimes in relation to religious organisations. That is perhaps particularly true in relation to the family. The important situation, it seems to me, is when the arrangements of public law come into a dispute: the basic principles of our law should then be respected because the ultimate authority for the enforcement of the resulting awards is in the law of this country. Therefore fundamental principles of the law should be respected throughout the whole of the procedure.

Under the Arbitration Act, arbitrations have a considerable effect when they have been properly set up. The Arbitration Act, which the noble Baroness referred to, was set up principally to deal with the problems that had arisen in relation to commercial arbitrations in this country, including the difficulties caused by repeated applications to the courts, which had the effect of holding up progress, as they almost certainly always do. The Act was intended to simplify and clarify the effects of arbitration and the principles by which arbitration should be conducted.

One of the fundamental principles of our law, referred to in the Bill, is the treatment of gender on the basis of equality. We know that in certain situations there is a presumption in some religions in favour of men, and the result is discrimination against women. I sincerely hope that that is not a general situation in our country, but it is an important point notwithstanding. It seems to me to be essential that all aspects of any arbitration, if it is to be authorised ultimately by the legal authorities of this country, should be conducted in accordance with the principles of non-discrimination. That is one of the fundamental provisions of the Bill, and I strongly support it.

Various types of negotiation can have the same effect, and it is important that if these are to be considered as authoritative in our law, they too should be in accordance with the fundamental principles of non-discrimination. For me, therefore, the part of the Bill that deals with this is very worthy of support, especially when there is evidence, to which the noble Baroness referred, that this is not always observed in all forms of those arbitrations which are based on certain religions.

Legal Aid, Sentencing and Punishment of Offenders Act 2012

Lord Mackay of Clashfern Excerpts

Wednesday 10th June 2015 Lords Chamber

[Lord Faulks]

No. Of course litigants in person provide challenges. There are a number of strategies, which I have told the House about before, to enable them better to access justice. We remain alert to try to improve those as far as possible.

[Lord Mackay of Clashfern (Con)]

Is the Minister able to say whether the advice centres that are available to people of all means are sufficiently active to deal with the problems that may or may not arise out of the LASPO Act but, in any case, may require a degree of knowledge of social security legislation which not all lawyers possess but which are very much concentrated in advice centres? Is that not a better way of dealing with this problem than the old system of individual legal advice from individual lawyers?

[Lord Faulks]

My noble and learned friend makes a good friend—I mean, a good point: he is a good friend. We have given significant sums to various bodies: £16.8 million to the advice services fund, £107 million to the transitional fund launched in 2010 and £68 million to the advice service transitional fund. It is important that advice is accessed via these means, and I entirely agree that much assistance can be derived thereby.

Court Fees

Lord Mackay of Clashfern Excerpts

Thursday 26th February 2015 Lords Chamber

[Lord Faulks]

On the general point, there was reference in both questions to the Global Law Summit. Many pooh-poohed this enterprise, which noble Lords may now realise attracted more than 2,000 delegates, more than 100 Ministers of Justice and Attorneys-General and representatives of more than 100 countries, all of whom came to celebrate our heritage of the rule of law. I remain an adherent to that, as I am sure other noble Lords are. Nothing about the contents of that conference in any way derogated from that principle.

As to the more specific point, there are different provisions depending on the size of the claim. As the noble Lord will know, court fees usually form a small part of the overall bill compared with lawyers’ fees, which tend to be much higher. We do not believe that the increased court fees will act as a significant inhibition on claims.

[Lord Mackay of Clashfern (Con)]

My Lords, in my time, the consent of the heads of division was required to achieve an order for court fees. That requirement has since been removed, with the result that the heads of division are now no longer in complete control, as they were then. Notwithstanding that, I was successfully judicially reviewed in a court fees order that had the consent of all the heads of division. That could also happen. What is the purpose of dealing with this matter in a way that does not require the consent of the heads of division? I assume that the Government have answered the consultation. Does the Minister have the answer ready to hand?

[Lord Faulks]

My noble and learned friend will know that there were two consultations regarding these proposed enhanced fees, in which the judiciary’s comments were fully taken on board by the Government and certain modifications were made to the original proposals. However, ultimately, the question of fees and the cost of the courts is a matter for the Government to decide.

Criminal Justice and Courts Bill

Lord Mackay of Clashfern Excerpts

Tuesday 9th December 2014 Lords Chamber

[Lord Marks of Henley-on-Thames]

The Government have repeatedly characterised this clause as being concerned with cases involving procedural irregularities only. Indeed, the Minister used the term “technicalities” as a diminutive, which is inappropriate. Such terms are inaccurate in relation to this clause. At very best, they are inadequate. These are public law cases concerned with unlawful conduct of the Executive where an organ of government has ignored the law in taking or carrying out decisions.

With the greatest respect to my noble friend Lord Horam, I must say that his assertion that the system of JR is rife with widespread abuse is unsupported by the evidence. Nor does he take into account the fact that judicial review is, at its heart, about decision-making in accordance with law. Nor does he take into account the fact that, certainly over recent years, judges have made it very difficult indeed, in the exercise of their discretion, for unmeritorious cases to get permission to proceed.

I do not regard this clause as merely protecting government from the effects of minor procedural errors that have made no difference to decision-making. I regard it, as do other noble Lords who have spoken, as an attack on the rule of law and an attack on parliamentary democracy. To take the example given by my noble friend Lord Lester, where a statute is passed by Parliament, often after discussions such as the ones that we have had on this Bill, which requires that the Government consult before making a decision, it should not be open to government to flout that requirement imposed by Parliament and then claim an immunity from judicial review on the basis that a lawful consultation would have made no difference to the outcome of the decision-making so that permission and relief should be withheld. That is the heart of the point made by the noble Lord, Lord Deben.

The public interest amendment of the noble Lord, Lord Pannick, reflects an amendment that I moved in Committee. If carried, and if this House insists on it, a court will not be compelled to say, where a government department has acted unlawfully, that the decision would have been the same anyway and therefore permission to apply for judicial review must be refused and relief must be withheld. The court will instead be able to say that the decision was illegal and, before it can be properly made, the Government must follow the law—quite simply because that is what the law requires. That is the rule of law. That respects the will of Parliament. That gives effect to be principle of government accountability. This House has a constitutional duty to be very careful indeed when what is happening here happens—when the Executive seeks parliamentary sanction for breaking the law, as this clause does. I shall support the amendment of the noble Lord, Lord Pannick.

[Lord Mackay of Clashfern (Con)]

My Lords, the question in this particular amendment is a simple one. The courts have developed law in relation to situations in which the outcome would not be any different if the conduct complained of had not occurred. My understanding of the decision in that area is that the court may decide, if it concludes that the result would inevitably be the same, that the relief is to be refused.

The government Motion that is the subject of this substantial debate simply raises the question of whether that would be inevitable or “highly likely”. In the civil law, of which judicial review is part, the ordinary rule is that the balance of probabilities determines the fact. That is the question that was raised here and there is quite a lot to be said for that point of view. But the situation tonight is affected by the way the debate was conducted in the other place. It is not for us—it is certainly not for me and not for any of your Lordships—to criticise what happened in the other place. On the other hand, the Lord Chancellor has apologised to a Member of the other place for the mistake that he made, which is fairly fundamental to the consideration of this amendment. Therefore, for my part, I would like to see this amendment going back to the House of Commons, not necessarily to change the result—that is a matter for the Commons—but so that the debate should proceed on a basis that is 110% correct.

--- Later in debate ---

[Lord Marks of Henley-on-Thames]

My Lords, throughout the passage of the Bill, my concern with these clauses has been that they would require any individual who was minded to support a judicial review application financially to disclose to the court his or her resources. That requirement is coupled with a requirement for the court, when considering questions of costs, to consider making a costs order against a supporter of an unsuccessful application, making use of the information disclosed.

With the greatest of respect to his argument, the Minister understated the effect of Clause 66. He said that the court would have to consider the information; what he did not take into account was that the court would be enjoined to consider making a costs order against the supporter. The inevitable effect of that would be to deter people from supporting judicial review applications financially. Group applications—for example, by groups of villagers or school parents—would then become very difficult indeed to fund.

This House’s amendments gave the court a discretion relating to financial information and costs orders. The Commons rejected our amendments and, in response to the concerns raised, my noble friend Lord Faulks and the Government have nevertheless introduced an amendment to provide that rules of court would exempt some supporters of judicial review applications from the financial disclosure requirement, provided their support did not exceed a level to be,

“set out in the rules”.

The difficulty, as the noble Lord, Lord Pannick, pointed out, is that the Government and my noble friend have given no indication of the level of support intended to be covered by their amendment. My noble friend and his officials—I am grateful to him and them for this—have met me and, I understand, others to discuss this amendment. I quite understand their position, enunciated by the Minister, which is that further work would need to be done to set an appropriate level. However, the Government are able to say nothing as to the level intended, except that it is likely to be a “few hundred pounds at most”. That is not satisfactory.

A very limited exemption for small-scale supporters would not significantly reduce the chilling effect of a disclosure requirement. It will not be anything like enough to enable groups to raise meaningful funds to support JR applications. I remind the House that most solicitors now charge about £250 or more per hour, even outside London. For the exemption to be meaningful, a supporter would have to be permitted to contribute several thousand pounds before financial disclosure was required. I accept the formulation put forward by the noble Lord, Lord Pannick, but that could be assessed when formulating the regulations on a percentage basis. I had in mind a figure of 20% as the starting point. I had in mind a figure of somewhere between £10,000 and £15,000 as a likely level below which disclosure would not be required. However, from the Government we have heard nothing, except that it would be figure of a few hundred pounds at most. That is not a significant concession.

What is necessary is that individual supporters providing small or medium sums, who are doing so genuinely to support the application—not as the real principals and not to try to control the litigation—should not be deterred from so doing by the costs threat involved in this clause. We need that as a statement of principle, but it needs to be a statement that shows that the principle has changed to meet the objective that I have just set out.

The Government’s stated aim in these clauses, restated by my noble friend, has been limited to ensuring that wealthy people do not use impecunious applicants to pursue litigation as fronts, with no risk in costs to themselves. He rightly used the argument of shell companies as supporting an argument that their promoters should not get protection. That is an understandable aim, properly expressed by my noble friend, which no one could sensibly criticise. However, I remind your Lordships that the court already has the power to require information and make costs orders against non-parties in such circumstances. However, if the Government wish to legislate to implement their stated aim, it would be entirely reasonable to expect them to limit the legislation to what is required to achieve that aim. That would mean a firm commitment to this House that the level set out in the rules would be such as to exempt from financial disclosure small and mid-range supporters of judicial review applications who were not seeking to control the litigation.

I have made it clear to the Government that I would be prepared to support the amendment in lieu if there were a clear statement that genuine supporters in this category who provided significant funds but did not wish to control the litigation would be protected. In the absence of such a statement, I feel obliged to support the Motion of the noble Lord, Lord Pannick, to insist on the Lords amendments. The Commons will then have to consider whether it is prepared to incorporate the sort of principle that I have enunciated to protect the financing of group litigation and incorporate it into an amendment in lieu when it is sent back to this House.

[Lord Mackay of Clashfern]

My Lords, I had understood the Government’s proposed amendment as conferring power on the rule committee to determine what the rules should be. There is, of course, an ultimate power but I would expect the rules to be fixed by the rule committee, after appropriate consultation and with a fair amount of knowledge of how the whole system works. This kind of amendment would deal with the sort of problem that the noble Lord, Lord Adonis, and I referred to in Committee. The Government’s amendment would be a sensible one to make and the Minister has explained the principle under which it would work. I am perfectly happy to leave that to the rule committee to determine, in the light of its great experience and knowledge of the situation.

[Lord Carlile of Berriew]

My Lords, I have listened, of course with enormous respect, to the noble and learned Lord who has just spoken but I do not agree with him. As my noble friend Lord Marks said a few moments ago, rules already exist to deal with the problems that are legitimately identified. What I want to say, in agreement with the noble Lord, Lord Pannick, and my noble friend Lord Marks, is about who the people are who sometimes contribute to group actions and would be chilled out of them as a result of the proposed changes.

I have to go back to my period as a Member of another place, representing a geographically large but population-small rural Welsh community. From time to time in that community, issues arose relating to judicial review. For example, many people wanted to challenge the closure of small primary schools or the changes made by the Conservative Government of the time to the structure under which primary schools could be governed. There were challenges to new roads and planning decisions, which had been made on faulty procedure by the local authority.

Who are the people who contribute to these group actions? They include people with small businesses who decide that the issue matters more to them than might at first sight be apparent. They do not, however, want to open up their private business to the courts—not because there is anything wrong with their private business, but because they think it might be made public and their neighbours might know that business. Some small farmers are much more affluent than their neighbours know; others quite the opposite. The affluent ones may want to make a disproportionate contribution to a group action, because it matters to them and because their families have been central to the community in which they live for several generations. Elderly people may not want to leave quite as much as their unworthy relatives would like to receive from their estates; they may feel that there are community issues that justify their descendants perhaps paying a small price by a contribution being made to a community group action of judicial review in the public interest.

Those are just three illustrations of the types of people who will feel that they are simply not prepared to give more than a few pounds to a group action, whereas in the past they may have given several thousand. So I agree with the point that has been made eloquently by others. Before we go down this road, we need some indication from the Government—they must have some idea—at least of the proportion of costs that would fall within these provisions. Until we have that, we could not conceivably be responsible in agreeing to a proposal that would have such a serious chilling effect, not only on judicial review but on the spirits of small communities such as the one I represented.

Divorce: Effect on Children

Lord Mackay of Clashfern Excerpts

Wednesday 26th November 2014 Lords Chamber

[Lord Faulks]

I am afraid that I am not briefed on the precise matters that the noble Lord has referred me to. Of course, the Resolution report referred to by the noble Baroness emphasises the various problems that are occasioned to children on divorce; they are well known, but they are helpfully emphasised in that report, and the Government are considering its consequences very carefully.

[Lord Mackay of Clashfern (Con)]

Would it not be helpful to divorcing couples to have a framework of the resources that should be allocated, with power in the court—if it went to court—to depart from that at the judge’s discretion? We could have a framework from which the parties would start as a way of settling their dispute, rather than coming into a situation where there were no rules at all and the question was completely open. Surely, it would help to restrict the question a bit if a framework existed.

[Lord Faulks]

The noble and learned Lord is quite right. That is a matter that is being considered, with the idea that there should be non-binding guidelines that would enable parties to have at least an idea of what the likely outcome would be on divorce. In fact, mediation is often successful. Experienced practitioners are able to predict—not with certainty but with some confidence—the outcome of cases and then advise their clients accordingly.

Criminal Justice and Courts Bill

Lord Mackay of Clashfern Excerpts

Monday 27th October 2014 Lords Chamber

[Lord Marks of Henley-on-Thames]

My Lords, I simply do not accept that it is right that a requirement for financial disclosure should be imposed before the permission stage in a judicial review application. The time for considering such information is when the order for costs is considered, and not before. At the costs stage—the stage with which Clause 72 is concerned—it is clear which side has won, and the judge knows who is and who is not vulnerable to a costs order. Only at that stage is the issue of financial support relevant, and at that stage the present position is that the judge already has the power to make a costs order against a non-party who has financially supported an unmeritorious application. There is no utility in expanding or developing that power further. But if there is to be legislation, I urge the House to accept that it should be left to the discretion of the judge as to what order for costs he makes. There may be some sense, however, in legislating for the court at that stage to have the power to require financial information in order to help the judge form a conclusion. That is the limited purpose of my amendments to Clause 72. With your Lordships’ consent, I shall detain the House no further.

[Lord Mackay of Clashfern (Con)]

My Lords, those of your Lordships who were present in Committee will remember that I read out a substantial section of a book by the noble Lord, Lord Adonis, in which he described what I understood to be the use of judicial review as a means of frustrating a government policy that had been passed by Parliament. I shall not repeat the detail now; it is in the book and I have put it on the record here. The problem on which the noble Lord focuses in that passage is that the arrangements made for pursuing this policy involved looking round for somebody who could be a legally aided litigant, and would therefore be provided with legal aid and also protected against costs in the event of his losing. The full detail is given in those passages.

It seems to me that some mechanism is required to enable the judges to deal with such points as part of the decision on whether permission will be granted to a particular individual to proceed. So far as I am concerned, judicial discretion in this area would be perfectly reasonable and, as has been said earlier, rules of court would be required to deal with it. There is definitely a problem here that needs to be dealt with at the opening stage of the proceedings in order that justice may be done in relation to that kind of campaign, which I have no reason to doubt is accurately described by the noble Lord, Lord Adonis, whom I am sure your Lordships know and respect.

[Lord Lester of Herne Hill]

My Lords, my experience of protective costs orders arises from the Corner House case. Corner House was a tiny NGO with almost no money and it was challenging the lack of proper consultation when the export credit guarantee issues arose in relation to possible corruption. My recollection is that the Court of Appeal developed at common law the idea of a protective costs order, but it was extremely careful to limit that so that anyone with real funds would have to account at the earlier stage before such an order would be made.

I have not been aware, in subsequent case law since the decision of the Court of Appeal in the Corner House case, of protective costs orders being abused. My impression is that the courts have been strict, disciplined and very jealous of the need to avoid any waste of public money. Therefore, although I agree with the noble and learned Lord, Lord Mackay of Clashfern, that there may be some scope for rule-making, I do not believe that there is any need for a statutory requirement such as the one we are now considering.

Criminal Justice and Courts Bill

Lord Mackay of Clashfern Excerpts

Wednesday 30th July 2014 Lords Chamber

[Lord Brown of Eaton-under-Heywood]

I am grateful for that intervention, which in fact underlines the point. The fact is that it is impossible. No one could draft a set of principles or rules that would accurately dictate in advance how the judicial discretion in this matter would be exercised in all possible circumstances. All that one can do is to give indications. That is what we sought to do in Hamilton and it is what the courts will do on a case-by-case basis when this question arises. You cannot categorically set out all the various circumstances. Costs are always a difficult matter. They are left to judicial discretion, and that is how it has worked down the generations. No one has ever previously tried to prescribe that the courts must in certain circumstances—or must not, in other highly specific circumstances—order costs. The real problem with this provision is that it will be used to limit access to judicial review to those who have substantial independent means. It will be used effectively to deter others from pursuing litigation because they will feel that they are at risk of endangering their supporting family or other properly supporting bodies.

[Lord Mackay of Clashfern (Con)]

My Lords, I am delighted to hear from the noble and learned Lord, Lord Woolf, with all his experience, that the system of financing litigation by the no-win no-fee system, as it has been called, is working reasonably well. Many noble Lords will remember that the introduction of that system was not without a certain amount of difficulty for those who were promoting it.

I think that it is not correct to say that legal aid has been removed from judicial review. My understanding is that legal aid is available up to the point at which the judicial review is permitted to go ahead or not. Subject to this, the payments to the lawyer in question will depend on whether or not the judicial review is allowed to go ahead from the point at which the respondent to the judicial review has replied to the description of the review that is put forward under the protocol. Nothing else, as far as I understand, is affecting legal aid. That seems to me completely reasonable in the circumstances of judicial review.

The last time I spoke on this part of the Bill, I hope that I made it clear that I cherish judicial review as a very important aspect of our judicial process. However, I have pointed out, and I believe that it is beyond doubt, that the scope for judicial review is a deal greater than it was many years ago when the finality clauses were in force in many provisions of statute. One has to be careful in approaching any restrictions on judicial review, though, as the noble and learned Lord who is the President of the Supreme Court has said. I am certain that the clauses that we are dealing with today, particularly the first of them, are very much in that category, and that considerable care is required.

One of the difficulties about judicial review that has been brought to my attention quite frequently over the past years is the sort of circumstance that the noble Lord, Lord Marks, referred to. I will not preface it in the way that was done earlier—I am sure that he will understand why not. In a village, nearly all the villagers are interested in having a certain decision of the local authority overturned. The villagers go to their lawyer, who says, “Well now, let’s see. Is there anybody in the village who is rather poorly off?”. Perhaps, fortunately for the system, there is no such person, in which case they have to continue on the ordinary basis, without legal aid. However, if somebody in the village qualifies for legal aid, under the scheme that can operate we will find that the whole village is able to go ahead on the basis of legal aid in such a way that if the application is unsuccessful, the litigant who is legally aided is of course protected against a court order.

The last time I spoke I illustrated how that had happened in quite a considerable campaign against the previous Government’s educational policy on academies. In the literature that was produced at the time, one thing that was said was, “So far, all the people who are applicants are entitled to legal aid, so the whole litigation will be at the expense of the taxpayer”. That is a difficult situation. The point is not that the person of little means is being in any way impeded, but that they have become an instrument for attacking the taxpayer generally. I am not sure as yet what the right way to deal with that problem is, but it certainly needs to be dealt with. I suppose that the courts could deal with it, but the difficulty is that there are a lot of individual applications, each of which is usually dealt with separately. In the case of the Government’s policy on academies, most of the attacks were based on local considerations—although, as was said, the whole scheme was being attacked.

I certainly regard it as of the utmost importance that any rules of this kind that are put forward are very carefully scrutinised. It may well be that as phrased in this clause they are somewhat on the wide side. However, it does seem that there is a problem that your Lordships will need to address in some way to preserve justice for the taxpayer, as well as for the litigant. I am not at all in favour of putting any more difficulties in the way of a proper litigant applying for judicial review than exist at the present time. I am concerned at the development of matters around judicial review over the years—and over recent years in particular. To have a shell company that is set up particularly for the purpose of promoting a judicial review strikes me as somewhat strange, and whether the rules are sufficient to cope with that is a matter that I would like to hear about.

The other aspect, referred to by the noble and learned Lord, Lord Woolf, is standing. I mentioned the other day that I was nominated as senior counsel for the Crown in the original decision on standing in this House, but the courts have expanded the concept of standing quite fully since then. I am not certain whether it embraces the standing of a shell company set up by people to protect themselves against the possibility of court costs. No doubt those who are more familiar with recent practice will be able to help me on that point. For the time being, it seems to me that there is a problem to be dealt with, and I am anxious to learn whether the proposals in the Bill or the amendments are a better way of dealing with it.

[The Minister of State, Ministry of Justice (Lord Faulks) (Con)]

My Lords, this has been a very helpful and well informed debate on the clauses dealing with the provision of information about financial resources and—it is important to distinguish between the two—the use of information about those financial resources.

As noble Lords will be aware, anyone wishing to bring a judicial review must first obtain the permission of the court to proceed. This is set out in Section 31 of the Senior Courts Act 1981 and mirrored in Section 16 of the Tribunals, Courts and Enforcement Act 2007. Clauses 65 and 66 relate to the information that an applicant must provide as part of that application and direct the court to consider that information when making costs orders. In order to ensure that the court is properly informed under Clause 65, the court or Upper Tribunal cannot grant permission to proceed with judicial review unless information on funding is provided. Clause 66 requires that the courts have regard to this information when exercising their existing powers and discretion to award costs.

Amendments 73G, 73H and 73M, taken together, seek to weaken the requirement that an applicant applying to the court or tribunal for permission to bring a judicial review provides information on financial resources. The effect of Amendment 73G would be to enable the courts to disapply that requirement in whole or in part. Nothing is provided about the circumstances under which the court may disapply the requirement. Amendments 73H and 73M seek to remove the requirement for an applicant to supply information about financial resources that are “likely to be available” to fund the claim. There is presently no general requirement for applicants to reveal the source of funding they are receiving for a claim. This may hinder the courts in assessing fairly the available financial resources when making costs orders. Requiring the applicant to provide this information, regardless of whether the funding is provided by a formal party to the claim, will assist the courts in better exercising their existing powers and discretion to apportion costs fairly. Also—and this is worth stressing—in responding to our recent consultation on judicial review, the senior judiciary welcomed the greater transparency that this would involve, although not the former judges who have participated in this debate.

We are concerned that potential applicants are able to set up shell companies, with the sole purpose of fronting a judicial review, enabling the individuals or bodies driving the claim to avoid full costs implications, ultimately at taxpayers’ expense. Take the challenge to my right honourable friend the Secretary of State for Justice’s decision to grant a licence to exhume human remains which turned out to be those of Richard III; a case referred to in Monday’s debate by the noble Lord, Lord Beecham. A company was formed to bring that judicial review, protecting the sole director from costs liability and an absolute protective costs order was granted, in part on the basis that the company itself did not have any assets. Noble Lords may be aware that the court in this case recently found that the decision of the Secretary of State for Justice was entirely lawful. However, the taxpayer has been left to foot the Secretary of State’s costs, of £82,000 up to March this year, in properly defending his lawful actions. The wider cost to the public purse has been put at £175,000 and may be higher.

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[Lord Mackay of Clashfern]

The noble Lord asked whether the examples I gave were both real. One, which I have dealt with in detail before, is an actual example, and the other was simply to illustrate what could happen under the case put forward by the noble Lord, Lord Marks of Henley-on-Thames.

[Lord Beecham]

Of course the noble and learned Lord is right. I should simply have referred the Islington matter to him as a substantive one. As I said, that is unlikely to be replicated in that particular borough in any event, but that is by the way.

The Minister has signally failed to answer other questions, particularly what is meant by availability and the likelihood of availability. That question has been left in the air, which is not at all satisfactory. We have debated legal aid in this House before, as we have the problems that applicants and their legal advisers will face in dealing with matters up to the stage when permission is granted. There is a real risk that costs up to that point will not be covered by legal aid. There are other areas that will potentially be governed by other proposals, for example concerning a residence test, which currently is under appeal. We will come on to those later.

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[Lord Judge (CB)]

My Lords, I endorse, from the point of view of England and Wales, what my noble and learned friend Lord Carswell said about his experience at first instance and in the Court of Appeal in Northern Ireland. On one view of the clause, the Supreme Court is being discriminated in favour of. The Supreme Court consists of five, seven or nine of the brightest legal minds in the country—in the whole country. One judge sitting alone at first instance, or three judges sitting in the Court of Appeal, do not have that same intellectual power. It is immensely helpful to the judge or to the Court of Appeal to have an intervention, leave for it having been granted by somebody who knows something about issues which might have been overlooked.

[Lord Mackay of Clashfern]

My Lords, so far all noble Lords have spoken in the one sense in relation to this clause. Obviously, in the interests of balance, it is important to consider whether there is anything to be said in favour of the clause. So far as I am concerned, there has been a considerable growth in the number of interventions over recent years. I would like the Government to indicate to us—at some later point if they do not have the information now—exactly how many interventions there have been in the supreme courts. I use that term in its old form, because I think it is extraordinary that we now have senior courts and the Supreme Court. It is high time that the Supreme Court was regarded as the supreme court of the United Kingdom, while the High Court of Justice, the Crown Court and the Court of Appeal were the supreme courts of England and Wales. I hope that, after September, all being well, that may be corrected.

I am not aware that judgments have considerably improved in quality in recent years as a result of interventions, although there may be some way of estimating that. It is always a little difficult, but somebody may be able to do that for us and show the tremendous amount that the interventions have done. I know that the noble and learned Baroness, Lady Hale, for whom I have the highest possible regard for a number of reasons, has said that they are often helpful. I am sure that that is true. Everybody wants help; at least most people with any degree of humility are glad to get help, from whatever quarter it comes.

The noble Lord, Lord Marks, referred to an aspect of this which I think has to be taken into account. Some of the interveners are campaigning organisations, which are campaigning for a particular result. You may take it that they had a good shot at trying to persuade Parliament to go along with them and that, having failed at that, the campaign is continued once the law is passed. These are not conclusive arguments one way or the other, but I personally find this clause too prescriptive in any event. If there is a real point to be considered, the clause needs some revamping, possibly in the light of the amendments that have been proposed. At the moment, I am anxious to see just why there has been a huge increase—as I think there has been—in the number of interventions in recent years. The first intervention that really came to my notice to any substantial extent was an intervention in this House in a case that became rather important for a number of reasons.

[Lord Beecham]

I am sure that when it comes to interventions, the Minister is extremely grateful to the noble and learned Lord, Lord Mackay, because I suspect that no other intervention has offered him any assistance. The noble and learned Lord might recall that there have been, I think, 50 cases in the last 13 years in which bodies of the kind that he referred to, such as charitable organisations, have intervened. That is not, on the face of it, an inordinate number, just as the total number of judicial review cases—other than immigration cases which are no longer dealt with in the courts—is fairly modest.

Moreover, interventions take place only with the leave of the court. If there were a right to intervene that would perhaps give some force to the noble and learned Lord’s misgivings, but it is for the court to determine whether interveners should be allowed. That point has been made clearly today and on other occasions. It seems to me that the Bill’s provisions in relation to interveners are based on either a misunderstanding of their role or a misrepresentation—deliberate or otherwise—of how it works in the real world, rather than the world the Minister of Justice appears to imagine exists. As we have heard, the role of interveners is to assist the deliberations of the court, not to meddle. Of course, no intervention can be made without the court’s consent.

We have heard powerful speeches from the noble Baroness, Lady Campbell, and the noble Lord, Lord Carlile, who have direct experience of the role of intervention on—almost—different sides. Clause 67 seems to me to be a full-frontal assault on the principle of intervention. As has been stressed today, in earlier debates and in many of the briefings that we have received, this clause is clearly designed to deter contributions to the determination of judicial review applications. Again, leave for contributions must be obtained from the court and, as we have heard exemplified today, such contributions are very often most helpful to the court.

I shall speak to Amendments 74A, 74B, 74E to 74G, 74J and 74L. These amendments broadly follow the theme of preserving the court’s discretion in these matters where the Bill would fetter it, usually for the benefit of the respondent and often, therefore, of the Government. Clause 67(2) illustrates perfectly the Government’s attitude to the principle of equality of arms. It prohibits any order for costs in favour of an intervener. This provision is clearly aimed at charities and voluntary organisations, as opposed to commercial or statutory organisations which are well able to afford the costs of intervention, and it is heedless of the likelihood of thereby discouraging helpful interventions. Amendment 74A would therefore allow the court to make an order for a relevant party to pay the intervener’s costs. Amendment 74B would emphasise the discretionary nature of such an order by adding,

“if the court considers it appropriate to do so”.

Amendments 74E and 74F would remove Clause 67(4), (5) and (6), which require the court to make a costs order against an intervener in respect of costs deemed to have been incurred by a party as a result of the intervention, save in exceptional circumstances, the latter to be judged in the light of criteria, once again to be specified in rules of court, and again, therefore, effectively determined by the Lord Chancellor.

Amendment 74F would allow the court to make an order against an intervener where it considers it just to do so, and provided that exceptional circumstances apply. This would be defined by a new Clause 67(6) as where the intervener has in substance acted as if he were the principal applicant, appellant or respondent. If an intervener takes on that kind of role then he could be ordered to pay costs if the court so determines, as he could if he were a party. As an alternative, Amendment 74G, which is very much by way of a fall-back provision, would at least change the requirement in Clause 67(4) to make an order against an intervener from being mandatory to discretionary, which Amendment 74J would complement by adding,

“if the court considers it appropriate to do so”.

Noble Lords, in particular the noble and learned Lord, Lord Woolf, and the noble Lord, Lord Pannick, who are highly experienced in these matters, have expressed profound concerns about the nature of the Bill’s proposals. We have had indications from the Minister in the past that the Government are perhaps open to argument and persuasion about this. I very much hope that we can hear from him confirmation of that. I hope that some move will be made in the direction of allowing this process—which is of great service to the administration of justice—to continue without the threat which would impede and deter potential helpful interventions from those in the best position to advise the court, which after all retains the ultimate decision.

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[Lord Pannick]

My Lords, this group of amendments is concerned with Clause 68, on costs capping orders—or protective costs orders, as they have previously been called. In a case that raises issues of public importance, the court has a power, before the case is heard, to set a maximum figure for costs that a claimant will be required to pay, should the claim not succeed. The object of such an order is to ensure that a claimant who raises an issue of public importance is not deterred from bringing the claim because of the risk of having to pay unquantified costs, should that claim fail.

At the moment, costs capping orders are a matter for the discretion of the court. They are rarely made; I am told that there have been fewer than 20 such orders in the past three years. Almost all of those are concerned with environmental claims, which Clause 70 recognises raise special considerations because of the international Aarhus convention. I am aware of no evidence that there have been substantial, or indeed any, difficulties in this area.

Amendment 75 would leave out Clause 68(3), which is particularly objectionable because it provides that a costs capping order may be made only if leave to apply for judicial review has already been granted. That would defeat much of the object of a costs capping order. If applicants cannot seek and obtain a costs capping order until leave to move for judicial review is granted, they are, inevitably, going to be deterred from bringing the judicial review proceedings at all because of the risk of having to pay an unquantified amount of costs at the permission hearing.

Amendment 76 would omit Clause 68(6)(c), which is also objectionable because it would require the court to be satisfied, before making a costs capping order, that, in the absence of the order, the applicant for judicial review would not merely withdraw the application or cease to participate in the proceedings, but also that it would be reasonable for them to do so. I am puzzled by that provision. I simply do not understand how a judge can be expected to assess the reasonableness of a decision by a claimant not to take a financial risk by bringing proceedings without a costs capping order. Whether you bring a claim without financial protection will depend on the legal advice you receive as to its prospects of success—a matter covered by legal professional privilege and so unknown to the judge—and the degree to which you are willing to take the financial risk of having to pay the costs, which is a very subjective matter. How will a judge be expected to apply Clause 68(3)?

Amendments 77 and 81 address a particular vice of the costs capping provisions. Clauses 68(8) to (11) and Clauses 69(3) to (5) would confer powers on the Secretary of State to define, by subordinate legislation, what factors the court should take into account when it decides whether proceedings are of public importance. These are not matters in which a Minister should be involved by making subordinate legislation, far less a Minister who is likely to be one of the potential defendants in the very cases which he would be seeking to regulate by making that subordinate legislation. If the Government wish to regulate this area, they should come forward with primary legislation which can be properly debated and scrutinised.

I have seen no evidence to suggest that the current exercise of the costs capping powers has caused any problems, other, of course, than the general problem that government departments would much prefer not to be the subject of judicial review applications. For these reasons, I oppose Clause 68 standing part of the Bill. I beg to move.

[Lord Mackay of Clashfern]

My Lords, I wonder whether I might invite the noble Lord to say what the present rules are and what are the powers under which this costs capping happens.

[Lord Pannick]

The present powers are that the court has a general discretion to decide at the beginning of the case on the application of a claimant for judicial review whether, and if so in what terms, it is appropriate to limit the exposure of the claimant to pay the defendant’s costs, should the claim fail. The court also has a power, which it sometimes exercises, to provide the other way, so that if the claimant were to succeed in the claim, the exposure of the defendant to pay the claimant’s costs should also be limited. This is a discretionary power, it is a broad power and it is exercised, as the noble and learned Lord would expect, according to the particular circumstances of each case.

[Lord Mackay of Clashfern]

Is the noble Lord able to say when that power was introduced? I am trying to work from my memory, and I do not remember. Of course, I am not saying that my memory is perfect. I am just wondering when it came in.

[Lord Pannick]

My understanding—I will be corrected by others if I am wrong—is that the court created such a power as an inherent aspect of its supervisory power over judicial review and other proceedings. I do not think that a specific rule was made, but I will be corrected if I am wrong on that.

Criminal Justice and Courts Bill

Lord Mackay of Clashfern Excerpts

Monday 28th July 2014 Lords Chamber

[Lord Faulks]

I am grateful for that intervention. The noble Lord, Lord Ponsonby, makes a good point in the sense that a defendant might feel more confident if there was not such a wide age disparity between him and someone aged, say, over 75. The noble Lord reminds me that the upper age for judges is 70, so it is not unreasonable to restrict jurors to the age of 75.

[Lord Mackay of Clashfern (Con)]

I think that it is fair to say that the ultimate upper limit for judges is 75; that of course accounts for a good number of our noble and learned friends who are here today. The difficulty of fixing that limit was just the same as for jurors. The general view among the judiciary at the time, and I hope that it remains its view, was that 75 was a reasonable compromise because people—not everybody—over 75 become increasingly less able to perform the judicial function, which the jury function is, as the years progress. Therefore, you have to get some sort of balance, and 75 seems as good as any.

[Lord Faulks]

I am grateful for that contribution. My noble and learned friend states the difficult issue very well.

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[Lord Paddick (LD)]

My Lords, I rise briefly to speak to this amendment. It will become apparent very quickly that I am not a lawyer, and never have been, but I have been involved in one case of judicial review as a result of becoming a victim of phone hacking.

The fact that I was a victim of phone hacking became known to the police, but the police did not inform either me or other victims when that information came to their notice. As a consequence, together with others, we took the Metropolitan Police to judicial review on two counts: first, over its failure thoroughly to investigate phone hacking in the first instance; and, secondly, on its failure to inform those that it knew were either victims or potential victims of phone hacking to enable them to take steps to guard their privacy. The court found that whether the police should have investigated thoroughly the first time round was entirely a matter for the police. However, on the issue of whether the Metropolitan Police should have informed the victims of phone hacking, the court found that it was under a legal obligation to inform them. That important principle was therefore established through this judicial review.

Bearing in mind that by the time we brought the judicial review we had been informed by the police that we were victims of phone hacking, can my noble friend the Minister confirm that the outcome of that application would not have been substantially different for us? In other words, we already knew that we were victims, but we wanted to establish the principle that the police should have told us earlier. If Clause 64 were enacted, we may not have been able to bring that judicial review and establish the important principle that the police must inform victims of this sort of crime as soon as they become aware of it.

[Lord Mackay of Clashfern]

My Lords, I, of course, have nothing like the width of experience that has been spoken of already by a number of noble and learned Lords and other noble Lords. However, I have a certain amount of responsibility in connection with judicial review from quite an early stage.

Your Lordships will remember that the law of England originally provided for four rights, which were prerogative writs that had the effect of controlling the subordinate powers at the insistence of the High Court. That is because the High Court is a court of universal jurisdiction. The difficulties of these particular prerogative writs were gradually appreciated and, eventually, the judges decided that it would be a good idea to have a new form of procedure called judicial review. They ultimately incorporated it in a rule of court which, as I remember, was called Order 53, and that was the situation for some time. However, it was not long before the judges themselves decided that it was not good enough to have procedure of this kind depending only on an Order 53 rule of court. It was therefore important that this became statutory and that Parliament should have responsibility for the legislation which affects and controls the process of judicial review. It is therefore 100% clear that Parliament has authority to deal with this. That does not necessarily mean, of course, that any particular action proposed to Parliament by a Government is necessarily the best thing to do.

However, I would like to mention one or two aspects of this. The first is from the point of view of planning. I used to practise some planning work in the 1950s, 1960s and 1970s and in the planning legislation there was, I think almost from the start, always a provision empowering an applicant or a person aggrieved by a decision in the planning field to apply to the court. There were two branches of that: first, where there was no power to make the decision; and, secondly, where the decision was the result of a failure of process. I think that the current form is in the Planning and Compulsory Purchase Act 2004, where the second provision is,

“that the interests of the applicant have been substantially prejudiced by a failure to comply with a procedural requirement”.

It is important to see that it applies where the interests of the applicant have been “substantially prejudiced” by a failure of procedure.

I think that that system worked well. In due course, of course, as a result of various decisions, including a decision of this House in its judicial capacity, in which I took part, it was held that judicial review was sometimes available even when there was a statutory form of appeal, and therefore judicial review started to be used in the planning field, notwithstanding the provision that I have just referred to. A number of cases came along, one of which the noble and learned Lord, Lord Woolf, will remember, when somebody was faced with a document at the beginning of a hearing before the inspector, and the inspector granted him an adjournment only until lunchtime. Lord Denning and his colleagues, notwithstanding the eloquent defence by Mr Woolf, as he then was, found against the Secretary of State. However, that is a success of the old form and the present form of statutory appeal.

In a more recent case at the Court of Appeal, the leading judgment was given by the judge who was the senior presiding judge in England in my time, Lord Justice Auld, who said, on dismissing the appeal:

“In doing so I add a note of dissatisfaction at the way the availability of the remedy of judicial review can be exploited— some might say abused—as a commercial weapon by rival potential developers to frustrate and delay their competitors’ approved developments, rather than for any demonstrated concern about potential environmental or other planning harm. By the time of the hearing of this appeal, as is often the case, the approved scheme in issue is clearly of a piece with—”

what was already there. So, the danger of judicial review as a means of trying to damage competitors was recognised. My noble friend Lord Horam has given a number of cases in which that has actually taken place. That warning was given a considerable time ago and I am delighted to hear that now—this is a fairly recent development—there is a Divisional Court in the High Court with expertise in planning able to deal with planning applications very speedily indeed. That is highly desirable.

The other thing I want to mention is that, when I was first in practice, we did not particularly think that we were not under the rule of law, although there was no judicial review. Another aspect of the law which was quite important was that there were finality clauses in most Acts of Parliament making the decision of the Minister or the authority final and unable to be upset by any judicial procedure. That was a fundamental protection for the Executive, for local authorities and so on—all sorts of bodies had that kind of protection. The Foreign Compensation Commission happened to be the one selected for trial and in Anisminic v Foreign Compensation Commission the judges found the way around this finality clause in such a way that these finality clauses have ultimately disappeared. Therefore, the scope for judicial review is very much greater than for the prerogative writs that were in position originally.

I was involved in one of the early cases on development of judicial review in respect of the standing of, or the right to bring, such a case. Certainly, there is an interesting issue in relation to some of the clauses in this part of the Bill about forming private companies simply for the purpose of promoting a particular judicial review in the hope of protecting perhaps fairly wealthy, not in any way impecunious, people from the possibility of costs. That is a development in relation to judicial review which I think requires consideration.

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[Lord Davies of Stamford]

I am listening with great attention to what the noble and learned Lord is suggesting. Is he proposing to put down an amendment to allow the court, notwithstanding the restrictions that are being imposed in this Bill, in the event of what is described as being an academic case in which the outcome is not likely to be very different one way or another for the applicant, nevertheless to proceed under those circumstances if its intention is simply to make a declaration? That is not provided for in the Bill at present. Is the noble and learned Lord proposing to put down on Report an amendment that would give that suggestion effect?

[Lord Mackay of Clashfern]

If that were necessary. I regard it as something that could happen under the existing clause because the outcome for the applicant could include a declaration, in my judgment. It is a question of whether the court thought a declaration appropriate. If it did, it could do so, notwithstanding the provisions of Clause 64.

[Lord Elystan-Morgan (CB)]

The noble and learned Lord, Lord Mackay, makes the very proper point that there is ample precedent for Parliament to deal with the issue of judicial review. Indeed, he traced historically how prerogative writs developed, how they were placed on an administrative basis and how, ultimately, they became the subject of specific legislation. One point must be made, however, and I am not sure that the noble and learned Lord did not touch upon it in his powerful address: that when legislation intervened in this area, it did not diminish to the slightest degree the rights of the individual, or, indeed, any of the relative positions in relation to the various powers that judicial review seeks to deal with equitably. In other words, the boundary was not moved a single inch.

My second point has already been touched on: it is about the rule of law. Many here will have read the excellent treatise by the late Lord Bingham, in which he reminded us that there are two boundaries in relation to the rule of law. The most obvious is whether a law has been technically and lawfully passed through both Houses of Parliament and received Royal Assent. However, Lord Bingham went on to make it perfectly clear that if a law was unconscionably wrong, even though it had proceeded through all those stages in a thoroughly proper and technical way, it would still be in breach of the rule of law.

The point that Lord Bingham makes is that there are two boundaries: one is the technical parliamentary boundary; the other, of course, is a boundary beyond that. Indeed, it is in that context that this whole debate is taking place. The boundary that we are talking about is the boundary of the inherent jurisdiction of the High Court, something which has been built up over many centuries and not spelt out by Parliament but which is nevertheless a very real and massive boundary.

If I am right—and I suggest that it most certainly is the case—that Clause 64 breaches that boundary and undermines it, there is a very strong case for changing it. That is the real relevance of the excellent debate that we have had today.

Many speakers have made the point about Clause 64 in the context where the result would have been no different. I would ask in how many cases the following situation applies. A party is elected to government after a hard-fought election. It has set out very clearly in its manifesto exactly what legal changes will be brought about in various fields of law. It will invoke procedures which are already set out in statute to make those changes. Those proceedings will, of course, involve consultation. However, every thinking person knows that that is something entirely chimerical. There will be consultation, yes, but the consultation will make no difference to the determination and resolve of that new Government to bring about that change. If you say that that consultation does not really matter, what can you do? You do not challenge the ultimate right of that party to bring about that legislation, but you can challenge the right of that party to make a mockery of the procedures of law. That is exactly what is entailed here.

Consultation does not, of course, mean that you have to weigh in the balance the views that are tendered to you, but it does mean that you have to look carefully at what is said and give a reasonable period and a reasonable prospect for people to be able to make such representations. The idea that those count for nothing is, I suggest, utterly inimical and utterly contrary to our concept of the law as we have it.

Criminal Justice and Courts Bill

Lord Mackay of Clashfern Excerpts

Monday 21st July 2014 Lords Chamber

[Lord Blair of Boughton (CB)]

My Lords, I strongly oppose the proposal that Clause 25 should not stand part of the Bill and it appears that commissioners may think in the same way, according to the noble Lord, Lord Paddick. Since the early 19th century, it has been the received wisdom that people are deterred from committing crime by the likelihood of detection rather than the length of sentence. I agree with that in general.

As a former Metropolitan Police commissioner and deputy-commissioner, I have experience of two categories of crime that proved the rule by being exceptions to it. The first is the one that Sir Bernard Hogan-Howe has apparently already mentioned: that is, the reduction in shootings that occurred in London after a five-year mandatory sentence was announced. That occurred because communication among the criminal fraternity is good. It is particularly good among the women of that group, who stopped carrying the guns in their handbags. Therefore the guns are not as much in evidence as they were.

I imagine that many noble Lords will recall my second example, which was a response to the marked rise in fatal and near fatal stabbings of teenagers in London a few years ago. The most important factor in reducing that was the issue of a practice direction from the noble and learned Lord, Lord Judge—I do not think that he is in his place—when he was Lord Chief Justice, that a first offence of unlawful possession of a knife should normally be considered for a custodial sentence. Knife crime started to fall and I believe that is because people knew that that message was passing around the streets of London.

I believe that, with knife crime falling, a custodial sentence for a second offence of carrying these weapons makes much better sense than for a first offence. The reason for that is it provides people with a chance. A sentencer now sentencing someone for a first offence can give them a very simple message which is very easy to understand—“Don’t do this again or you will go to jail”. Normally, I am in favour of leaving judges and magistrates free to exercise their judgment but this crime has an additional catastrophe attached to it. It ruins the life not only of the person who is seriously injured or killed but also the life of the offender in those circumstances.

I had to talk to the families of people who had been murdered in these circumstances. We have not heard enough from those who oppose the clause or, with respect, from the noble Lord, Lord Deben, about the victims of knife crime. Knife crime can change lives catastrophically. One of the awful things about that period when teenagers were killing each other in London was how often there was only one knife wound. A single blow had caused these deaths, as if these young people had no idea that that action would kill someone. It seems to me sensible to pass a message to stop the thing happening that will then allow someone to be murdered. One cannot murder someone very easily if one does not have a knife or a gun. I strongly oppose the proposal.

[Lord Mackay of Clashfern (Con)]

My Lords, judicial discretion is a very important aspect of the judicial process. However, embedded in judicial discretion is the fact that you cannot know in advance with precision how that discretion will be exercised. If you have studied the sentencing guidelines you may know roughly the areas in which the discretion will operate, but having a fixed penalty as a minimum means that it is known in advance that unless there is a particular circumstance to take you out of the situation a fixed penalty will happen. You know that in advance.

I have heard what has been said in support of this clause and also the other point of view from a very experienced police officer. I know a case of knife-carrying that was enough to kill somebody and give the carrier a life sentence. I found that a very traumatic experience. Telling people in advance what the sentence will be is an extremely important deterrent. It has been done in various parts of our judicial system. Therefore I do not regard the principle on which this is based as one that can apply in all circumstances. In a second offence for knife crime it is reasonable for a statement to be made about precisely what the sentence as a minimum will be unless there are circumstances that take it out of the ordinary.

My noble friend Lord Marks has commented on the nature of the exception. If he wishes to improve on that, there is the option of an amendment to that effect. So far, none is forthcoming. I shall take it that the exception, in so far as it is stated, is a reasonable exception in the circumstances of this case. Of course the idea is not to put more people in prison; it is to prevent people from going to prison by knowing that if they do this particular thing for a second time that is where they will go. On the whole, one hopes that that has a deterrent effect.

Information about this will quickly get around among the people who are affected by it. One can understand the idea of discrimination but of course it depends on the way in which the power to stop and search is used. As far as I am concerned, this power must be used in accordance with the best discretion of the police officers on the street. However this amendment has come about—it was made in the other place—the Government have decided in the light of their experience and of their policy as a whole that it should be adhered to and given effect.

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[Lord Woolf (CB)]

My Lords, it is with some considerable hesitation that I speak now, with two views having been expressed—one by those who support this measure and one by those opposing it. It is only right, however, having heard what my noble and learned Scottish friends have had to say about this that I should mention my experience. I have the greatest respect for the noble and learned Lord, Lord Mackay, whom I was glad to serve under when he was Lord Chancellor, and for the noble and learned Lord, Lord Hope, as well, who is a colleague in the House. With great respect to them, though, neither of them, if I may say so with all due deference, were judges who were sentencing in courts at first instance.

[Lord Mackay of Clashfern]

That is not correct. The case that I referred to was at first instance in a trial in the High Court in Glasgow.

[Lord Woolf]

I stand corrected on that but again, if I may say so, their experience was not, because of the way in which their careers developed, in accord with mine. I sat as a judge in the higher courts at every level, first as a High Court judge, then as a Court of Appeal judge, then as a House of Lords judge and finally as the Lord Chief Justice, in relation to these matters.

The one thing that I want to emphasise is that the right way of sentencing in the ordinary way is not for Parliament to lay down what the fixed sentence should be; rather, it is for Parliament to set out the framework and for the judges, within that framework, to deal with matters specifically. Four-month and six-month fixed sentences amount to tinkering. To think that that sort of sentence is going to be of any significance—again, I speak with great respect for the noble Lord, Lord Blair, whom I know and respect—is not right. Four-month and six-month sentences, as has been said already, just do not work as far as either the authorities or offenders are concerned. If someone is the sort of person that this provision is aimed at, who caused someone’s death by the carrying of a knife, I am afraid I cannot begin to believe that their conduct will be influenced by this. That is contrary to the experience of the great majority of judges and, as I have said, amounts to tinkering. That is what we should not do.

We have powers in the court to deal with these matters. Both the noble Lord, Lord Blair, and the noble and learned Lord, Lord Hope, put their finger on the point when they said that the courts can send messages in the same way that Parliament can send messages. However, there are situations where it is appropriate for Parliament to send a message, but there are situations where it is much better done otherwise, although I do not say that it has to be the judiciary. We have heard in this field that both the noble and learned Lord, Lord Hope, and Lord Justice Judge sent messages and were indicating. Although it is right, as the noble and learned Lord, Lord Mackay, says, that if you have a fixed sentence there is more of a likelihood that someone might know what the fixed sentence is, it is also more likely that injustice will be caused by the fixed sentence.

When we legislate, we have to hold the balance between doing justice and ensuring that people are safe so that we do not get into a situation where a court finds that its hands are tied and it is forced to give a sentence that it would prefer not to. The provision that is a safeguard in this case is based on one that is well known to courts south of the border and, I suspect, north of the border. The difficulty with this provision has already been indicated by the noble Lord, Lord Mallalieu. What does it mean? It is a matter that I do not mind saying—[Interruption.] I am sorry, the noble Baroness, Lady Mallalieu. I apologise to the noble Baroness and I know that she will forgive me for that discourtesy.

The position is this: Lord Bingham took one view of what a provision of this sort made, and I took a different view. I said, and you can find this in the Law Lord reports, that the only way you can make sense of this provision is to say that the right way of interpreting it is that a judge’s hands are not tied if that would cause injustice, because it is obviously not the intention of Parliament that judges should impose an unjust sentence. Lord Bingham said that that made this provision a non-entity. I realise that and I agree, and if that is so then we are better off without it.

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[Baroness Butler-Sloss]

My Lords, this is an extremely sensible amendment. I rise on behalf of Barnardo’s to express its very real thanks, which I share, for the amendment that the Government are putting forward.

[Lord Mackay of Clashfern]

My Lords, as a member of Barnardo’s, I am delighted on this occasion to be able to agree with my noble and learned friend.

[Baroness Thornton (Lab)]

My Lords, we on these Benches welcome the amendment. I welcome it personally because I took part in the debates in 2003 on the Sexual Offences Act and argued this case on behalf of Barnardo’s, Action for Children, the NSPCC and ECPAT. All the voluntary organisations concerned with child safety had already realised that the law would increasingly not cover the issue of the threat to children through new media. I thank Barnardo’s for its excellent briefing on this, my honourable friend Sarah Champion for leading such an excellent review of the law and the Government for bringing forward the amendment.