Religious Intolerance and Prejudice

Lord Mackay of Clashfern Excerpts

Wednesday 17th October 2018 Lords Chamber

[Lord Mackay of Clashfern (Con)]

My Lords, it is an extraordinary privilege to follow the most reverend Primate, the noble Lord, Lord Hain, and my noble friend the Minister on this very difficult situation.

As the noble Lord, Lord Hain, has said, and in a way I have even longer experience than he has, we have never had it like this—in my experience never. This is fundamental, because it means that there are very powerful influences driving these people. What are these influences? I am not sure I know. I have been a professing Christian for many years, though I am nothing like as good as the standard our faith sets. I am convinced that the standards that we have been set in that faith are very high. As the most reverend Primate has mentioned, love your neighbour as yourself is a fundamental law of Christian living and of many other faiths as well.

I was brought up in a family that was absolutely devoted to the scriptures of the Old and New Testaments. I therefore knew more about the intimate history of Israel than I did about any other nation apart from our own. That gave me an understanding of human nature, and of what the Israelites came through, and what damage they experienced during their history. Fixed in my mind—and, I am sure, in those of many others who had similar teaching—is a very profound love for the Jewish people.

Anti-Semitism is a very destructive principle held in the mind, and it would be a great blessing to be able to take it out of people’s minds. That is the challenge in which the churches, faith groups and those who have no faith at all but who believe that they are able to influence others should be engaged. Any form of victimisation of a person on account of his or her faith is completely wrong and ought to be pursued with as much strength as civil society and the state can manage.

This debate is about tolerance, and there are aspects of tolerance that we ought to think about. Your Lordships will have seen the briefing prepared by the Library for this debate. It contains a contribution by a gentleman called Krish Kandiah, whom I have met. He now takes a great interest in fostering children, which is a very important life work—he is a pastor as well, but fostering is an aspect of his life. In the passage quoted in the briefing he says:

“As a foster parent, I have been told by some social workers that I should keep my faith a secret. I have been asked to raise the children in my care in an ‘ideologically neutral environment’. The views of the social workers who say things like this have little understanding of my practice of faith. Their concerns stem from misperceptions as to what faith is and how it relates to my identity”.


Reducing the possibility of children being raised in families with a profound religious faith is a very subtle way of trying to reduce tolerance. I do not understand why that is part of tolerance.

An attitude that is currently generally held is that science has dealt with everything and that religion is rather old-fashioned or something that is apt to mislead. The prevailing view on the origin of the universe and so on has an effect in that direction. The fairly recent book by Professor Lennox from Oxford called God’s Undertaker is a very mathematical assessment of the basics of evolution, and I think it shows that there is more than one possibility in these matters. I am old enough to remember Fred Hoyle, Bondi and Gold bringing out their various theories, which have passed on to others. Of course, Einstein had his theory of special relativity and then his theory of general relativity. His science is not exactly about the origin of the universe; it is about the way in which the universe functions, and his theories have been capable of being checked in some way, which is important. It is rather difficult to check the theories of cosmology because of the time intervals involved. It always interests me that people are willing to think about the big bang as having achieved a great change in a mighty short time, yet they think that Genesis tries to do too much in seven days.

These matters underpin the need for tolerance in our society and the need to encourage people with particular views of which we might not approve but which they wish to promulgate and really believe. It is very important that the procedure outlined for us by the Minister works, but it has to go very deep into the minds of those who are actuated by the sort of thing that the noble Lord, Lord Hain, set out for us in great detail and extremely accurately.

I strongly support what the Government are doing and I very much deplore the extent to which tolerance has been damaged by the victimisation of faith and race. In the last few years, that has become a terrible scandal in our beloved country.

Rating (Property in Common Occupation) and Council Tax (Empty Dwellings) Bill

Lord Mackay of Clashfern Excerpts

3rd reading (Hansard): House of Lords
Wednesday 18th July 2018 Lords Chamber

[Baroness Pinnock (LD)]

My Lords, I remind noble Lords of my relevant interests, which are in the register, as a councillor and a vice-president of the Local Government Association.

I thank the Minister for accepting the principle of the amendment that I and my Liberal Democrat colleagues tabled both in Committee and on Report. That amendment has now been transformed into a fully fledged amendment, and I thank the Minister for tabling it on behalf of the Government.

We fully support the amendment before us today. Its purpose is clear: to significantly reduce the number of homes that lie empty and unused, which some reports say is as high as 200,000. This is at a time when all agree that there is an urgent need to increase the supply of housing. This amendment is one way of making the most of the housing stock that we have. There are, rightly, exemptions to this policy, and the Minister has outlined what they are. Implementation of the legislation is at the discretion of local authorities, and I hope and expect they will take into account areas that are destined to be redeveloped, and where the sale of a house would be very difficult.

I also welcome the Minister’s comment that there will be a review of the guidance attached to the Bill. Like the noble Earl, Lord Lytton, I raised concerns about that guidance in the Bill’s early stages, namely that it probably lacked the clarity to ensure that the legislation was properly and fairly implemented.

As I said before in discussion on the Bill, there are some owners who, to my personal knowledge, leave properties empty for no other reason than that they do not want to sell them. One property that I mentioned before has been empty for 29 years. I asked the local authority concerned what action it has taken. It said that it has discussed the matter with the owner, who simply does not want to sell the property. So it is left there like a historic relic of 30 years ago. There are instances of that happening. My hope is that with an escalation of the premium on council tax, it will be a financial disincentive to leave homes empty for so long.

That is why I am totally supportive of this amendment, based on the principle that I and others laid before the House in Committee and on Report. I thank the Minister for the discussions we had and for his positive reaction to the principle that I set out. I am also grateful for the help I received from the Liberal Democrat Whips’ office in formulating this idea as an amendment. We fully support the amendment.

[Lord Mackay of Clashfern (Con)]

My Lords, I wonder whether the situation that the noble Earl, Lord Lytton, described would not be dealt with by the power to require the local authority compulsorily to acquire the property. If a property cannot be sold because of a planning blight implied by the actions of the local authority, this might be a way out of it. The noble Lord mentioned that the rating value of the property should be affected by the way it was occupied. I wonder whether the local authority can make that a matter of guidance, or whether it is part of the statutory provision that the premium is payable on the rateable value of a property, rather than on the way in which it was occupied before it became unoccupied.

Energy Bill [HL]

Lord Mackay of Clashfern Excerpts

Wednesday 21st October 2015 Lords Chamber

[Lord Mackay of Clashfern (Con)]

My Lords, I support the point made by the noble and learned Lord, Lord Hardie, about the situation in Skye, where the implementation of the arrangements already in place has been postponed simply because of the need for the connection. There is no point in having the development until the connection is in place. This was all set up before this Bill was put forward. It requires a degree of special attention. All I want is to be assured that it will have that.

[Lord Bourne of Aberystwyth]

My Lords, this has been a very wide-ranging debate, taking in issues which are beyond the scope of the Bill. Nevertheless, they are important issues. I hope that I can do justice to the quality of the debate and respond to the points made. I shall come back to the noble Baroness, Lady Worthington, at the end because her comments perhaps symbolise the crux of the difference. In no particular order, except that it is present in my mind, first, I say to the noble Lord, Lord Steel, that I will take up the point about water and write to him on that specifically. As he indicated, it is not within the Bill but I am very happy to look at that and respond to him by letter.

I will probably stand corrected on this but I do not think that solar comes into this legislation either. If it does, I will regret that comment. It could in passing but this Bill basically is concerned about oil and gas, and the onshore wind position. I say to my noble and learned friend Lord Mackay of Clashfern and the noble and learned Lord, Lord Hardie, that I will write to them on their specific point on Skye. I do not know the particular position, so, without commitment, if I can write to them ahead of Third Reading I will certainly do so.

The debate has exhibited a very clear difference of position in relation to onshore wind. I shall come to the Salisbury convention later. I remind noble Lords that it is the responsibility of the Government and the department to do three important things. We have to ensure that we have a supply of electricity that is affordable; that we have a supply of energy that is secure; and that we decarbonise. There is a danger that today this debate has focused on just one of those elements, almost to the exclusion of the other two. They are all important and attention is required to deal with those three, as I am sure noble Lords will appreciate. I will come back to the steel issue later.

The noble Lord, Lord Foulkes, suggested that we cast aside suggestions from the noble Lord, Lord Oxburgh, who is not in his place. That has certainly been far from the case. As regards the part of the legislation in which he was taking a particular interest and giving his experience on oil and gas, we have taken up a lot of his suggestions, as noble Lords will know. I have also ensured that he will head a committee, or perhaps an advisory group, which will report to the Secretary of State on CCS policy going forward. I must correct that point as it is not true.

Clearly, there is a difference of view in this debate. Perhaps I may come to the Salisbury convention. The noble Lord, Lord O’Neill, suggested that we were casting aside planning law. We are not. The grace period makes it very clear that if you have planning permission plus grid connection plus ownership rights, you qualify for the grace period. Therefore, we are far from doing that.

I come to the political point and the points made by the noble Baroness, Lady Worthington, who comes with particular knowledge and commitment. I understand all that. She said at one stage that this is political. It is; I plead guilty to that. It is political in the sense that we believe that this is very clear in the manifesto and that it is protected by the Salisbury convention. To find a bit of wriggle room to oppose this while saying that you are upholding the Salisbury convention is not the way forward.

I also regret suggestions from the Liberal Democrats that they do not regard the Salisbury convention as important at all. They have gone a stage further. That is not a desirable place for this House to be in. As I said, I have been here a relatively short period of time, but I value the institutions of this House. I would say the same if a Conservative Opposition were opposing a different political party in government, which will happen at one stage. If we really wish to maintain the traditions of this House and the important role that we fulfil, we have to move very carefully in the territory that we are in. We have a very clear manifesto commitment. People know and understand that. It should be upheld.

Justice and Security Bill [HL]

Lord Mackay of Clashfern Excerpts

Monday 23rd July 2012 Lords Chamber

[Lord Woolf]

My Lords, the submissions put before noble Lords by various Members of the House in favour of these amendments, given their source, require the very greatest attention. I make no cavil at all about the spirit in which they are put forward, but I suggest that the House needs to look at the amendments with regard to how judges operate in practice. The situations in which there are closed proceedings are very limited indeed. Here we are dealing with the use of closed material in civil proceedings, where it is even rarer for there to be the sort of closed proceedings that have been necessary in trials by jury in the criminal courts. A small minority of cases in civil proceedings are tried by a judge alone. Indeed, if there were a need for closed hearings, it would not be practical for what is envisaged here to be used in those very few cases where a jury might care because there is then a purpose in the closed proceedings. The jury could not be told of the evidence that would be the subject matter of the closed proceedings and therefore there could not be any purpose in the judge making a ruling that certain evidence should be heard in closed proceedings.

Having indicated, I hope, the context that we must look at, I find it extraordinary that it should be thought necessary for a judge, in this unusual situation when there is to be a closed hearing, to be told what he has to do to safeguard as far as possible the party which does not have access to the material. Any judge hearing these matters is going to find throughout the hearing that that is his primary responsibility. I would suggest that perhaps it is dangerous to be too specific in what he can do and what he must do because the whole of civil procedure has evolved so that a judge is put in charge of a case and he manages it in accordance with the overriding principle that is being relied on by those who wish to amend this legislation so as to achieve justice and fairness as far as possible. While I am very much in sympathy with all noble Lords who have supported these amendments, I question whether we are necessarily being constructive with regard to this issue.

What we have given as the justification for the closed procedure is that it will actually assist in achieving justice. In considering what justice is required, one must not look at the matter entirely from the point of view of one party alone. If the Government are the defendant in the proceedings, they have important responsibilities to put before the court to ensure that the rights of the citizen to be protected are not damaged inadvertently by what is proposed. We must remember that, in this very special area of national security other states are very sensitive that their material, which they regard as important for their purposes, should not come in to the public domain. It is in that situation that these procedures, as I understand them, are being proposed. As I have suggested, the judge would apply the ordinary principles with regard to weighing the material that he would apply in other proceedings, and also with regard to its admissibility. I look forward to hearing how the Advocate-General deals with the point that is now being taken with regard to the intercept evidence. That evidence is not normally admissible in proceedings, and it is not evidence that a judge can look at. I suggest that, if he were to hear it inadvertently, he would not be entitled to rely on it unless there was some reason that made it admissible.

Therefore, I hope that the Advocate-General will in due course explain why the normal rules, which I suggest must apply in so far as possible here, are not applicable also in the special circumstances of closed hearings.

[Lord Mackay of Clashfern]

My Lords, I think that this may be an opportunity for the Home Office, in particular, to reconsider the advice apparently previously to it by the holder of the office of Attorney-General. With this possibility, there may be a way of introducing more flexibility into the general role with regard to intercept evidence than seems to exist at present.

[Baroness Manningham-Buller]

My Lords, I should like to comment on paragraph (e) in Amendment 69ZB tabled by the noble Lords, Lord Hodgson of Astley Abbotts and Lord Dubs. I can assure the Committee from my past experience in the Security Service that if this paragraph were to appear in the legislation, it would have a chilling effect on sources and on their willingness to provide information. I predict that many existing sources would refuse to continue in their role and new ones would resist recruitment.

Sources provide a range of information—some of it to be discounted and some of it valid but all to be assessed, which is something that the judge will seek to do. Some of that intelligence from human sources has prevented major atrocities and loss of life. However, when individuals agree to provide that information in confidence, they seek reassurance that their lives will be protected, and anonymity is key to that. If they were identified, I am afraid that not only would they need to be resettled but very few more would be willing to work for the Government.

Justice and Security Bill [HL]

Lord Mackay of Clashfern Excerpts

Tuesday 19th June 2012 Lords Chamber

[Lord Mackay of Clashfern]

My Lords, I disagree with the noble Lord, Lord Beecham, about whether his qualifications entitle him to address this House. He is an extremely experienced member of the legal profession who has considerable experience at the heart of the legal profession.

The Bill deals with justice and security. It deals with those two in the opposite order to the title. Although I had the responsibility of introducing the first Bill to Parliament to regulate the security services, I do not propose to get involved in that part of the Bill, but rather in the parts that deal with justice—in particular, Clauses 6 and 13.

I can claim some experience, a long time ago, in the area of public interest immunity. I had the responsibility of informing this House in 1996 that the Government had decided to depart from the old distinction between class cases and content cases in relation to public interest immunity and to concentrate on only one type of public interest immunity: where the specified documents could damage the public interest if disclosed. I am humbled by the remembrance that the junior in one of the cases on public immunity I took before the Appellate Committee of this House has just retired as a member of the Supreme Court. That shows that that was not yesterday.

The doctrine of public interest immunity is a doctrine of substantive law which has a long history and was recognised by Parliament more than once, but particularly in the Crown Proceedings Act. The way the system operates is that the Secretary of State asks for a public interest immunity certificate to be issued in respect of material which would otherwise be disclosed or matters which would be answered orally. He has to decide whether, in his judgment, on the facts of the particular case, those disclosures would damage the public interest.

For a while, it was thought that those certificates should be conclusive, but in a landmark case, Conway v Rimmer, in this jurisdiction, and very much earlier in the northern jurisdiction, it was decided that the certificate would not necessarily be conclusive if the area in question was such as to be central to the determination of the case. The method of dealing with that devised in Conway v Rimmer was that the judge or judges concerned with the case looked at the documents apart from any other party to the case except the person who had responsibility for production and the Secretary of State who had claimed the immunity, so that a degree of secret trial, if you like, has been long established in relation to public interest immunity.

If a public interest immunity certificate was granted in respect of the disclosure of particular information and it was held that it should succeed—in other words, that the balancing exercise of justice to the particular claimant came down in favour of the Secretary of State—that evidence was excluded altogether from the case. That is of itself a type of damage to a completely fair trial, because normally one is entitled to use all the relevant evidence in determining the issues, but a public interest immunity certificate, long established in law, has the effect of completely excluding that evidence, whether it helps or hinders the case of the Government or any other party. So one starts in this area with a system under which a very serious innovation is made to the ordinary rules that in civil cases all relevant evidence is available.

In my view, Clause 6 brings in a new system that is generally available in relation to national security only. It does not bring in any such system in relation to public interest immunity generally. It is only in relation to damage to national security that this arises. The obligations are that when a document is thought by the Secretary of State to be damaging to national security, he can apply to the court in any civil proceedings for a declaration that the case is one in which closed procedure should be allowed. The decision on that point is one for the judge as to whether the disclosure which is required to be made will damage the public interest. A judge of course has a jurisdiction in relation to the nature of the disclosure that has to be made, because it is fundamental to this whole thing that there is an obligation to disclose on the part of what is called the relevant person.

Reference has been made to Mr Andrew Tyrie in the course of the deliberations. I had the privilege of a very full conversation with Mr Andrew Tyrie on the telephone this morning, after receiving a number of communications from him. He rang me up because I had told him in rather brief terms what I was proposing to say about it. I had a full discussion with him, the result of which causes me to emphasise that it is important that the judge in the case has a jurisdiction to decide what has to be disclosed. For example, if it is possible to remove the difficulty by redaction or some other procedure of that kind then the whole difficulty disappears and closed procedure would not be necessary. It is only when there is a residue of material that the judge considers is required to be disclosed and considers that the necessary disclosure would be damaging to national security that this procedure is available. When it is available, it is of course a closed procedure in the sense that it has only the party producing the documents—the Secretary of State—and no other, the other party being represented by a special advocate. The special advocates have made observations about this, which I shall mention in a moment. There is quite elaborate provision for what this procedure is. I want to draw attention to that because it is quite important that we do not lose sight of this matter as it is set out in Clause 7.

Clause 7 contains provisions arising out of the closed procedure and its subsections (3)(a) and (3)(b) are of great importance. I should say that these provisions are to be introduced by rules of court; I will have a word to say about that at the end of my observations. Clause 7(3) says that the court “must be authorised” by rules of court,

“(a) if it considers that the material or anything that is required to be summarised might adversely affect the relevant person’s case or support the case of another party to the proceedings, to direct that the relevant person—

(i) is not to rely on such points in that person’s case, or

(ii) is to make such concessions or take such other steps as the court may specify”.

Now, the court hears this evidence in the absence of the other party, but let us say that the court is satisfied that in the course of this work by government agencies something is wrong. The court could insist that the Government could no longer maintain a case that there was nothing wrong. These are very powerful inferences from the evidence to be heard. They are very much better than the evidence being excluded altogether. I know of one case where, if the evidence had been excluded altogether, the case for the Government might have gone ahead, whereas when it was, in fact, not excluded, the Government’s case collapsed. That is what this allows the court to do, by order. So there are two branches to subsection (3)(a).

Subsection (3)(b) says,

“in any other case, to ensure that the relevant person does not rely on the material or (as the case may be) on that which is required to be summarised”.

The court is therefore able to decide that the person in question—that is, the relevant person with the documentation—does not rely on the evidence which is being heard in the closed procedure.

I have only summarised these provisions. They are a great improvement in the case to which they reply to the present situation, where the relevant evidence is excluded altogether, and no inference one way or the other can be drawn from it. My submission to your Lordships is that this closed procedure is an advantage over the present situation and is subject to a good deal of safeguard in the fact that it is the judge who decides what the disclosures have to be and whether they will in fact damage national security. In my discussions with Andrew Tyrie this morning, he was concerned that I should emphasise these points. I think that he had the impression that they may not have been sufficiently emphasised already.

I turn to Clause 13 and the Norwich Pharmacal jurisdiction which was recognised as an authority in 1974 in a case of that name which went to the House of Lords. It was a simple case in a way. Norwich Pharmacal had a patent and discovered that patented material was being imported into the United Kingdom. It could not find out who the importer was, and thought, “It must come through Customs and Excise, and so Customs and Excise must have a note of who the importers are”. It applied to the Court and to the House of Lords. Lord Reid, a distinguished Scottish judge, Lord Kilbrandon, another distinguished Scottish judge, and others, decided that Customs and Excise should reveal to Norwich Pharmacal the name of the importer, so that it could take the necessary proceedings.

That seems to be a very straightforward principle. The Explanatory Memorandum says that it does not apply in Scotland. I am not sure why that statement was made, but anyway, it does not matter very much, because the cases that are the subject of the Green Paper and the like have all taken place in this jurisdiction.

Clause 13 describes the jurisdiction, I hope, in accordance with what I have just said:

“This section applies where, by way of civil proceedings, a person (‘A’) seeks the disclosure of information by another person (‘B’) on the grounds that … wrongdoing by another person (‘C’) has, or may have, occurred … B was involved with the carrying out of the wrongdoing (whether innocently or not)”—

the Customs and Excise people were concerned at the import of this, that B was not involved in wrongdoing but was merely carrying out their own responsibility—

“and … the disclosure is reasonably necessary to enable redress to be obtained or a defence to be relied on in connection with the wrongdoing”.

It goes on to say:

“A court may not, in exercise of its residual disclosure jurisdiction, order the disclosure of information sought … if the information is sensitive information”.

I agree with the noble Lord, Lord Beecham, that the description of “sensitive information” seems extremely wide, and I have questioned whether it is necessary to have it anything like so wide. Clause 13(3)(a) to (d), as the noble Lord said, relate to various aspects of the Security Services, while (e) is for a specified certificate in which the Secretary of State has to consider that it would be contrary to the public interest for the information to be disclosed because of the interests of national security or—and here is the extra—the interests of the international relations of the UK. We know that it is the relationships particularly with the United States, though not only those, that are the issue here. For my part, subject to anything that my noble friend or others may say, I cannot see why the provision needs to go beyond the certification procedure of Clause 13(3)(e).

I have one other rather technical point. This provision is restricted to the residual disclosure jurisdiction of the courts, which means,

“any jurisdiction to order the disclosure of information which is not specifically conferred as such a jurisdiction by or under an enactment”.

That, I think, is intended to describe the Norwich Pharmacal jurisdiction. I question whether it is effective for that purpose, because the Norwich Pharmacal jurisdiction was established and quite clearly recognised in 1974. In the Supreme Court Act 1981, the Court was specifically empowered to exercise all the powers that it previously had. Norwich Pharmacal is included in that for the Court of Appeal and the High Court. I question whether this is an effective description of the jurisdiction. There is of course provision for judicial review of the certificates, which are regarded as quite important.

My final point is that in Part 2 of Schedule 3, on the closed material procedure, paragraph 3(1) provides that the Lord Chancellor may make the first rules of court himself. For my part, I would prefer that the rules of court were made by the court authorities that make rules of court ordinarily. I gather that the reason for this is possibly that Parliament might like to see a draft of these rules before the Bill is finalised, and that the committees of the court might not be willing to provide such a draft. I would have thought, though, that on the whole it would be wiser if the ordinary procedures for rules of court were used. I entirely trust these methods. Of course I entirely trust the Lord Chancellor, but in this case it would be better to use the established methods.

--- Later in debate ---

[Lord Pannick]

My Lords, your Lordships’ Constitution Committee, of which I am a member, has published a report which emphasises the constitutional significance of Part 2 of the Bill. The closed material procedure would create broad exceptions to two vital principles of our law: the principle of open justice, that evidence must be given in public; and the principle of natural justice, that each of the disputing parties must have the opportunity to respond to the evidence on which the other relies.

These departures from fundamental constitutional principles arise in the context of the point made in the Supreme Court last year by the noble and learned Lord, Lord Kerr of Tonaghmore, which the noble Lord, Lord Beecham, has already quoted:

“Evidence which has been insulated from challenge may positively mislead”.

These constitutional principles are not sacrosanct—I entirely accept the point made by the noble Marquess, Lord Lothian—but there are two central questions which the House will wish to consider in Committee and on Report. The first is whether the Government can show that the CMP provisions are truly necessary, so as to justify the breach of fundamental principles. The second question is whether the detailed provisions in the Bill allow for a fair balance between competing interests. I was very pleased that, in opening this debate, the noble and learned Lord the Lord Advocate said that he recognised that the Government were aiming for a fair balance between competing interests: security on the one hand and liberty on the other.

As your Lordships have already heard this afternoon, the courts have very long experience in seeking to ensure the confidentiality of information the publication of which would damage the public interest, whether it is national security or any other interest. The law on public interest immunity—PII—has been developed for that purpose. I declare an interest as a practising barrister who has appeared in cases concerned with PII. As the report of your Lordships’ Constitution Committee explains, the Minister produces a certificate and explains that items of relevant evidence cannot be disclosed to the other parties because of national security or some other public interest consideration. The judge then makes an assessment of whether disclosure would harm the public interest and, if so, the judge weighs such harm against the interests of administration of justice and the need to disclose the documents. Because the task of the judge is to balance competing interests, the judge vitally considers whether there are means of preserving confidentiality other than excluding the material from disclosure and other than saying that the evidence cannot be adduced at trial. For example, the court may sit in private. The court may say that there is to be no publication of the names of witnesses such as serving security agents. Disclosure may be restricted to named legal representatives. Most important of all, the judge may decide that the material can be disclosed but only in a redacted form, and that the court will have regard to the redacted form of the material which is seen by all the parties in the case.

The courts have been applying these principles and developing them in PII cases since the decision of the Appellate Committee in Conway v Rimmer in 1968, and indeed before then in Scotland, as the noble and learned Lord the Lord Advocate mentioned—or perhaps it was the noble and learned Lord, Lord Mackay of Clashfern, although both of them have knowledge. I accept, of course, that in some respects the law in Scotland leads the law in England, and this is one of them.

The point is this, and I say it with genuine respect for the noble and learned Lord the Lord Advocate. He wrongly presents PII as a mechanism which, when it applies, necessarily means that the material is excluded from the trial. It is on that premise—a wrong premise, with respect—that he suggests that a CMP is preferable because it will not reduce the amount of information which the other party will receive and it enables the judge to have more information available. The reality, as I have sought to indicate, is that the court has an ability applying PII to devise means by which security and fairness can be reconciled by the use of the mechanisms that I have mentioned. The provisions of this Bill are a long, long way from striking a fair balance between security and liberty or between security and the fair administration of justice, which is the goal stated by the noble and learned Lord the Lord Advocate.

Clause 6(2) obliges the judge to order closed proceedings in relation to material if the judge is persuaded that disclosure of that material would be damaging to the interests of national security. The judge is obliged to order a closed material procedure even if the judge thinks that the case could and should be fairly tried under PII rules and so there is no need for a closed material procedure. The judge may come to that view, if he were allowed to do so, because there are other means of protecting the confidentiality of the material, such as redacting the truly confidential part of it; or perhaps because the material that we are concerned about is of very limited significance in the proceedings, as the judge can see; or because the damage to the public interest by the disclosure of this material might be found by the judge to be absolutely minimal and the damage to the fairness of the proceedings by denying the other party access to it might be substantial.

I suggest that it is quite extraordinary that none of this fair balance is included and that Clause 6(3) requires the judge, when deciding whether to order a closed material procedure, to ignore the possibility of resolving the issues through a public interest immunity certificate. How can that be said to be sensible and proportionate—again, the criteria stated by the noble and learned Lord the Lord Advocate in opening the debate today? If, as I doubt, CMPs are required at all, given the availability of a flexible public interest immunity procedure, the judge surely must have a discretion over whether to impose a CMP, which discretion the judge should exercise only if that is the best available means of securing fairness in the light of confidentiality concerns and having regard to the availability of public interest immunity.

I am also concerned about Clauses 13 and 14—that is, the Norwich Pharmacal provisions. I agree with everything that has been said on that subject by the noble Lord, Lord Lester of Herne Hill. Let us be clear what this involves: those clauses would remove the jurisdiction of our courts to order the disclosure of information to an individual who has a properly arguable case that the representatives of this country are involved in wrongdoing. As pointed out in the powerful memorandum from 50 of the special advocates, these cases may involve the gravest of allegations of wrongdoing —allegations of torture or death abroad in which the authorities in this country are said to be implicated. Surely, in such a context, the House will want to be very careful indeed to ensure that any restrictions on the disclosure of information are strictly necessary.

The Bill would prevent the disclosure of any “sensitive information”—an unjustifiably broad concept, as pointed out today by the noble and learned Lord, Lord Mackay of Clashfern. Disclosure of most of the specified categories of sensitive information under the Bill would be prevented, whether or not it would harm the public interest. The judge makes no such assessment, nor an assessment of whether there is a balance between any harm to the public interest and the detriment to the individual, or indeed the detriment to the public interest by the concealment of this information. Again, I ask the Minister how that can satisfy the attractive criterion that he stated when he opened this debate:

“protecting the public should not come at the expense of our freedoms”.

Why are these provisions being brought forward? It is primarily because of the experience in the Binyam Mohamed case in 2010. The Government’s concern, which I understand, is that the courts should not require the disclosure of information supplied in confidence to the security services of this country by the security services of our allies. There are two points here. The first is that the provisions that we will be debating in Committee, Clauses 13 and 14, are not confined to information supplied in confidence by a foreign intelligence service when disclosure would damage our relations with that service. The second and perhaps more fundamental point is that there is absolutely no material—the noble Lord, Lord Lester, made this point—to suggest that courts allow or order the disclosure of confidential information that has been supplied to the security services of this country by our allies. The courts have a record of recognising, rightly, the vital importance of protecting national security and the sources of information that go towards it.

It is vital to recollect that in the Binyam Mohamed case the Court of Appeal, the final court that heard the matter, made it clear that the only reason why it was ordering publication of the relevant information was that that very information had already been publicly disclosed by reason of an order made by a court in the United States. The three judges in the Court of Appeal—Lord Judge, the Lord Chief Justice; Lord Neuberger, the Master of the Rolls; and Sir Anthony May, the president of the Queen’s Bench Division—stated expressly that they would not have ordered publication in defiance of the statement made by the United States authorities that disclosure of the information would damage national security there and a statement by Ministers here that disclosure would damage our national security because of the need to maintain a relationship of trust with the United States, even though the court was highly sceptical of those claims, but for the fact that that very material had been published by reason of a court order in the United States. If this is the basis of the concern of the security services, which presumably are responsible for asking the Government to bring forward these measures, they simply have not learnt the basic lessons from the Spycatcher case.

The Minister sought to assure and reassure the House that Clauses 13 and 14 would not prevent claims by litigants who allege that they have been the victims of serious wrongdoing. What he ignores for that purpose, though, is that without the disclosure of the information such claims cannot in practice be pursued. That is precisely why in 1973 the Appellate Committee created the Norwich Pharmacal jurisdiction that is the subject of Clauses 13 and 14.

On the case made so far by the Government, the provisions of Part 2 of the Bill regarding both CMPs and Norwich Pharmacal orders are, I suggest, unnecessary and unfair, and will undoubtedly damage the ability of the courts to give judgments that are fair and are seen to be fair.

[Lord Mackay of Clashfern]

Before the noble Lord sits down, he has referred several times to my noble and learned friend as the Lord Advocate. The Lord Advocate is now an officer in Scotland; my noble and learned friend is the Advocate-General. I understand perfectly what the noble Lord said, but I just wanted to get it right for the record.

[Lord Pannick]

I am very grateful; I was carried away with enthusiasm for the merits of the debate. I apologise to the Minister, and I hope that that was the only error that the noble and learned Lord, Lord Mackay, could find in the points that I was making.

Legal Aid, Sentencing and Punishment of Offenders Bill

Lord Mackay of Clashfern Excerpts

Tuesday 24th January 2012 Lords Chamber

[Lord Wallace of Tankerness]

My Lords, I have to confess that I have not heard that news, although they are obviously tragic circumstances and I associate myself with expressions of regret. When one does not know the circumstances, I always find it very difficult to extrapolate from them to a wider general principle. I hope that my noble friend will forgive me if I do not follow him down that line, because I simply do not know all the facts and circumstances.

In decisions on whether legal aid is required to fulfil the state’s obligations under Article 2 of the ECHR, it would seem incongruous to make it a statutory requirement for the chief coroner to be asked for his or her views on the significant wider public interest aspect of the case. To compel the director to consult the chief coroner in all cases which come for a determination is likely to add considerably to the administrative element of the assessment process and lead to delays for bereaved families. In turn, it would represent a burden on the chief coroner, who would almost certainly be unfamiliar with the circumstances of many cases, unlike the individual coroner who is holding the inquest. The chief coroner would therefore be required to acquaint him or herself with information pertaining to a number of cases with no obvious benefit for bereaved families, who have a locus in this. In these circumstances, there is no obvious benefit in individual coroners or the chief coroner mandating what would inevitably be an additional process in the legal proceedings.

Amendment 92A would compel the director to make provision for the payment of reasonable costs incurred by any person making a successful application under this section. The concept of “reasonable costs” is open to broad interpretation and might be seen to authorise payments at a commercial rather than a legal aid rate. Nevertheless, discussions with the Legal Services Commission about the precise remuneration arrangements for exceptional funding applications are ongoing and we fully expect to propose that the costs associated with the making of successful exceptional funding applications will be payable. I hope that that gives some reassurance to the noble Lord.

The exceptional funding scheme being introduced by the Government will give the director a narrowly drawn power to provide civil legal services that are not available under Schedule 1—hence their being “excluded cases”—where there are exceptional circumstances. We have reviewed questions of the European convention and issues relating to the death of a family member. An individual must qualify for such services in accordance, too, with Clause 10, which means that decisions on exceptional funding will be subject to the means and merits criteria. However, we believe that this is an essential safeguard for fundamental rights of access to justice which will underpin our proposals for changes to the scope of civil legal aid. The Director of Legal Aid Casework will make these exceptional funding decisions. This is a departure from the current position where the Lord Chancellor makes individual funding decisions in relation to excluded cases. Clause 4(4), which has already been debated, explicitly prohibits the Lord Chancellor from giving directions or guidance to the director in relation to individual cases. This will guarantee the objectivity of the decision-making process, in respect of both in-scope and excluded cases, and serve as a safeguard against political interference.

Clause 9(3)(a) provides the director with the power to make an exceptional case determination where the director considers that the failure to provide legal services to an individual would be a breach of the individual’s rights under the convention or European Union law, as we have discussed.

I recognise that concerns have been expressed about the parameters of the exceptional funding scheme that the Bill will create. I am sure—it is obviously the case—that many noble Lords would prefer a broader discretionary power in the Bill but, if I may take the Committee back to the fundamental purposes of the changes that we are making to the general legal aid scheme, we need these reforms to create a fair, balanced and sustainable legal aid system. We have taken into account the importance of the issue; the litigant’s ability to present his or her own case, including the vulnerability of the litigant; the availability of alternative sources of funding; and the availability of other routes towards resolution. We have used these factors to prioritise funding so that civil legal aid will be available in the highest priority cases—again, I repeat, essentially where, first and foremost, people’s lives and liberty are at stake; they are at risk of serious physical harm; they risk the immediate loss of their home; or their children may be taken into care. If we make wholesale changes to the exceptional funding provisions in the Bill, we risk undermining the overall reforms to the scope of civil legal aid.

That said, it is nevertheless our expectation that there will be several thousand applications under the new scheme and that there will not be a fixed budget for exceptional funding. It is our intention to publish more details concerning the operation of the proposed exceptional funding scheme and the associated guidance in due course. The guidance will largely be based on the factors that the domestic courts and the European Court of Human Rights have held to be relevant in determining whether publicly funded legal assistance must be provided in an individual case.

In these circumstances, we believe that this will be a route down which applicants will go and, as my noble friend said when moving his amendment, that it will cover a considerable number of cases. I invite my noble friend to withdraw the amendment and to be reassured by the structure and architecture which is in place with this important clause, in addition to those cases which already will be in scope under Schedule 1.

[Lord Mackay of Clashfern]

My Lords, having listened to what we have heard in connection with these amendments, it occurs to me, first, that, for some reason which is no doubt clear to some, “exceptional” is used in order to be defined, so the exceptional quality does not come into the definition of exceptional cases.

My second point is that, although “the interests of justice” is a rather general and vague subject, on the other hand if you turn it round and say that the director, before he allowed this ground to prevail, had to be satisfied that there was a real risk of injustice unless legal aid was granted in a particular case, that would focus on the issue in the case in a more distinct and direct way than the phrase “the interests of justice”, which has been used in many contexts in the past. I agree that, on the whole, it is a vague phrase, but turning it round might make it a little more attractive to my noble and learned friend.

Estates of Deceased Persons (Forfeiture Rule and Law of Succession) Bill

Lord Mackay of Clashfern Excerpts

Wednesday 15th June 2011 Lords Chamber

Moved by

[Lord Mackay of Clashfern]

33: Leave out Clause 18 and insert the following new Clause—
“Status of EU law dependent on continuing statutory basis
By virtue of the European Communities Act 1972 directly applicable or directly effective EU law (that is, the rights, powers, liabilities, obligations, restrictions, remedies and procedures referred to in section 2(1) of the European Communities Act 1972) falls to be recognised and available in law in the United Kingdom.”

[Lord Mackay of Clashfern]

My Lords, this amendment relates to Clause 18, which is in the nature of a declaratory clause setting out the position that the Government believe, and I entirely agree, that the operation of European law in the United Kingdom depends on the European Communities Act 1972, which is of course referred to in the clause as proposed by the Government. It is important that this declaratory measure should be made because of the theory sometimes propounded that Community law in the United Kingdom derives from the treaty alone by virtue of the European Union legal order. I believe that it is right that we should make it plain at this juncture that that is not so and that the enforcement of European law in this country is due to the enactment of the 1972 Act.

This may seem theoretical but it is perfectly possible that it might have some practical effect in the event of the passerelle clauses in the Lisbon treaty being adopted. I believe that, ultimately, the question of whether a particular piece of European law applies in the United Kingdom depends on United Kingdom statute. Therefore, the ultimate decision would be for the courts of the United Kingdom. Of course, these courts would take account, no doubt, of any relevant decision of the European Court of Justice in Luxembourg, but this is certainly a possibility. For my part, it is useful to make clear that in our country the law of the European Union is here by virtue of the sovereignty of our Parliament in enacting the 1972 Act. It is also very plain that the 1972 Act was very skilful legislation. For that we must be indebted, primarily, to my noble and learned friend Lord Howe of Aberavon.

My difficulty with the clause as drafted is that it opens with the suggestion that an Act should be referred to. We discussed this in Committee, when I moved an amendment of the same kind as I am moving today. The answer was that European law is not enforced in the United Kingdom solely by reference to the 1972 Act because a number of other statutes seek to do this, which my noble friend Lord Howell listed. Whether he is asserting that that is a complete list, I am not certain, but at least it is quite a long list. As I understand it, the important thing about these Acts is that they use the definition of Community law and Community treaties derived from the 1972 Act. Therefore, if the 1972 Act were repealed, they would be deprived of content in so far as they seek to impose European law in our country. The question arises in connection with, for example, the devolution statutes, where provision is made for ensuring that the devolved Administrations do not go off the rails in relation to Community law. That may or may not be a risk, but at any rate it is one for which it was thought wise to make provision.

The situation is that apparently there are a number of other Acts which use the European Communities Act 1972 for definition purposes. The Interpretation Act makes it clear that where a phrase such as “Community treaties” is used in a later Act, that is the meaning that is to be attributed to the phrase. If the European Communities Act 1972 were to be repealed, the definitions would be absolutely empty and these other Acts would have no effect. I therefore submit that it is amply sufficient to mention the 1972 Act and that the phrase “an Act” is certainly capable of a variety of interpretations, to some of which the noble Lord, Lord Kerr of Kinlochard, referred in Committee. For myself, I do not think that the Government intended any sinister meaning, but they have used an extraordinary shorthand in saying “an Act” when apparently they meant a list of Acts. It is much clearer and more effective to alter “an Act” to the Act that we know is responsible; namely, the 1972 Act.

I am grateful to my noble friend Lord Howell and the noble and learned Lord, Lord Wallace of Tankerness, for meeting me to discuss this matter. There is very little between us on the point of principle, but it is quite important that this singular and central Act should be the pillar of our understanding of the basis on which Community law applies in this country and that the idea that we have submitted to Europe without the sovereignty of Parliament being behind it is absolutely incorrect. A clear assertion of the Act which does this would, in my submission, be extremely useful. To water it down or make it ambiguous by referring to “an Act” is unfortunate. I beg to move.

--- Later in debate ---

[Lord Wallace of Tankerness]

That is the sort of question that one wants notice of and where the answer might in any case be misinterpreted. I think that I made it clear, and that it has been generally recognised in these debates, that this is against a background of suggestions made not in this Chamber—I think the position is perfectly well understood here—but elsewhere that there could be other channels via which European Union law could be imported into this country. We want to make it clear—I think there is near unanimity in the House—that it is by Acts of Queen and Parliament that the European Union law has effect.

The main difference between us is the view expressed in the amendment that the European Communities Act 1972 is the sole legislative vehicle for doing this. Our concern is that there are other Acts of the United Kingdom Parliament which make direct reference to European Union law, particularly the one on directors’ disqualification, which does so without reference to any other form of the 1972 legislation, even through the Interpretation Act. As my noble friend Lord Flight said, it is belt and braces. In a situation such as this we believe that the belt and braces are required. It is a fine point—not one of principle, but it is one of statutory interpretation. We believe that to list would not be neat because of the danger of leaving one out, but we need to make it very clear that European law becomes part of our United Kingdom legal system through an Act of Parliament. That is the way it happens and by no other way. To limit it to one Act, however fundamentally important that Act, runs the risk of leaving others out which are already on our statute book. For that reason, I invite my noble and learned friend to withdraw the amendment.

[Lord Mackay of Clashfern]

My Lords, there is not much between us. On the other hand, it is important to have clarity. If there are other Acts which are required in relation to this situation, the option is to mention them. The words “an Act” do not give any precision whatever. Therefore, the use of the phrase,

“of the European Communities Act 1972”,

is much clearer.

I think I am right in saying that the statutes, which are referred to as being other statutes—part of “an Act”—use the words defined in the European Communities Act; for example, the Community treaties. Those words are specified in the 1972 Act. All those Acts, in their dealing with European Community law, would be understood as having the meaning assigned to these phrases in the 1972 Act. If the 1972 Act were to be repealed, those phrases would be repealed with it because they would be deprived of the meaning which they had when the Act was enacted.

My noble friend Lord Waddington asked about “only”. If he wants to improve our amendment, it is open to him to propose an amendment to that effect. Of course, that is still possible. If the amendment is passed, he could improve it at Third Reading because I am sure that clarification of an amendment passed on Report would be possible at Third Reading. I do not think it is required, but if he thinks it would improve it, let us see.

This amendment specifies the Act on which we rely. My noble friend Lord Flight talks about belt and braces—I suppose I am getting to the stage when they may be an important matter. If I am right, all the European legislation which is incorporated into our law has been done by virtue of the European Communities Act and the definitions provided in that Act.

[Lord Elton]

The lay men are floundering. My noble and learned friend rests a great deal on the importance of the definitions in the 1972 Act and said that if the Act were repealed these words would be repealed as well. I take it that he in fact means that the definition would be repealed but the words would still have a meaning and therefore the meaning could well be that intended in the original Act.

[Lord Mackay of Clashfern]

The possibility is that the 1972 Act is on the statute book when these later Acts were passed. Therefore, phrases like “the treaties” and “the community treaties” would be interpreted in the light of the 1972 Act. If the 1972 Act were repealed, these definitions would disappear altogether and there would be no phrase left of that kind because these phrases are all given the meaning of the 1972 Act. If you look at it this way, if a phrase is interpreted as being what it says in the 1972 Act and the 1972 Act is repealed, that phrase has no meaning at all thereafter, so this is really quite an important issue.

[Lord Wallace of Tankerness]

Will my noble and learned friend respond to my point about the Company Directors Disqualification Act 1986, which refers in Section 9A specifically to:

“Article 81 of the Treaty establishing the European Community (prohibition on agreements, etc, preventing restricting or distorting competition)”,

and, in the following subsection, to Article 82 of that treaty, where it is not by reference to treaties in the 1972 Act but by specific reference to a specific treaty? If the 1972 Act were repealed would these words still not stand?

[Lord Mackay of Clashfern]

I suggest that the European Community treaty of itself would not be meaningful in our statutes until it was given effect by the 1972 Act; and when the 1972 Act ceases to operate, that goes along with it. That is the fundamental position. As far as trying to help the noble Lord, Lord Stoddart of Swindon, is concerned, I am not sure that it is my business to do that. The best advice I can give him, of course, is to support this amendment, and I think it right that the opinion of the House should be taken.

Privacy Injunctions

Lord Mackay of Clashfern Excerpts

Monday 23rd May 2011 Lords Chamber

[Lord Mackay of Clashfern]

My Lords, I very much welcome this Statement. I also welcome what the noble and learned Lord, Lord Falconer of Thoroton, said in response. However, is it clear whether the Joint Committee will have a remit to examine the practice of Parliament in relation to these matters? Parliament has long had a sub judice rule as a way of protecting the work which Parliament has assigned to the courts from undue interference by Parliament itself in exercising its undoubted right to discuss anything. It is extremely important that that aspect of parliamentary practice should be examined in the light of the present situation. As the quotation from the report of the Master of the Rolls shows, the sub judice rule was very much in the forefront.

This matter goes somewhat beyond the sub judice rule in this sense. The sub judice rule was put in place to protect the decisions which the judges had to make from prior discussion in Parliament, which might prejudice or pre-empt that decision, whereas the feature that we are dealing with at the moment seems to be an attempt to negate the effect of a judgment by using parliamentary privilege for that purpose. The situation is that a judge has decided that the person in question has a legal right to privacy on the matter. The question is whether it is appropriate for parliamentary privilege to be used to damage the effectiveness of that right and, if so, under what conditions, and subject to what rules. This matter requires quite detailed consideration. I do not believe for a minute that the judges were seeking to gag Parliament in any sense. They were seeking to ensure that their position in relation to Parliament was understood.

[Lord Wallace of Tankerness]

My Lords, my noble and learned friend raises some important—indeed, fundamental—points. I do not think that anyone is suggesting that the importance of Article 9 is in any way being challenged, but he makes some important observations. As for the terms of reference of the Joint Committee which is to be established, it has been indicated that the Justice Secretary and the Culture Secretary are to liaise with the chairs of the two committees in the other place. Obviously they will bear in mind the importance of this issue in Parliament, but it is also important to point out that the Government are already committed to bringing forward a draft Bill on parliamentary privilege. Given that, as I think my noble and learned friend indicated, there are issues that go much wider than these particular cases, this may well provide an opportunity for those important issues to be gone into in much greater detail—indeed, in the detail which they undoubtedly deserve.

Fixed-term Parliaments Bill

Lord Mackay of Clashfern Excerpts

Tuesday 10th May 2011 Lords Chamber

I do not think that the uncertainty inherent in this amendment or the unusual constitutional solution being proposed will improve the Bill; nor will it increase the scrutiny that the Bill receives once it is passed. In the light of these considerations and concerns, I ask the noble Lord to withdraw his amendment.

[Lord Mackay of Clashfern]

Can my noble and learned friend tell me whether he knows of any mechanism by which an Act of Parliament which has come into force can have its force suspended for a given period?

[Lord Wallace of Tankerness]

I cannot readily think of one off the top of my head. However, there are enough people in the Chamber and, if there is such a mechanism, I am sure that one of them will be able to tell us. My noble and learned friend, who has wide experience, might be able to think of one, but I cannot. However, the “sunsetted and sunrisen” approach is very novel.

[Lord Falconer of Thoroton]

My recollection is that we put sunrise or sunset clauses into a significant amount of the terrorist legislation, the result being that they would continue to have an effect only if there had been a resolution in both Houses of Parliament to carry on with them. I think that that is an answer to your Lordships’ question.

[Lord Mackay of Clashfern]

With respect, that is not an answer to my question. The terrorism provisions end the Act of Parliament unless it is continued by a resolution, whereas this proposal, as I understand it, would suspend the operation of this Bill, supposing that it becomes an Act, for a certain period without repealing it. At the moment—I am willing to be taught—I cannot think of that having happened before. However, novelty is perhaps the watchword of the season.

[Lord Falconer of Thoroton]

The noble and learned Lord is right. There is a difference between an Act lapsing and not being revivable and the situation under this provision where if it lapsed for the first Parliament because it was not passed in resolution, it could be revived for the second Parliament. In practice, however, the difference may not be that great.

Fixed-term Parliaments Bill

Lord Mackay of Clashfern Excerpts

Tuesday 29th March 2011 Lords Chamber

[Lord Campbell of Alloway]

My Lords, very briefly, I have for a long time shared the concerns expressed by the noble Lord. Those concerns appear to me to be met by Amendment 50. Has he considered that?

[Lord Mackay of Clashfern]

My Lords, it is worth pointing out that the noble Lord’s Government introduced a fixed-term Parliament in Scotland with procedures if the incumbent Government lose a motion of no confidence. The Bill is dealing with a fixed-term Parliament on somewhat the same lines as the Labour Government did in the devolution legislation.

[Lord Grocott]

I am sorry, my Lords. I was sitting down thinking about having a cup of tea and suddenly realised that those were interventions on my speech.

The fundamental difference between this and the situation in the Scottish Parliament is that that document began from a blank sheet of paper—albeit a very well rehearsed blank sheet of paper. There is all the difference in the world between drawing up a new constitution and amending a constitution which has worked perfectly well. That is my answer to that question.