European Union (Withdrawal) Bill

Debate between Lord Mackay of Clashfern and Baroness Kennedy of Shaws

Report: 1st sitting: House of Lords
Wednesday 18th April 2018 Lords Chamber

[Lord Mackay of Clashfern]

My Lords, I am certainly interested in family law, and have been for some time, but this amendment strikes me as rather otiose and ineffective. It says:

“Within six months of the passing of this Act, a Minister of the Crown must publish a report outlining the ways in which the rights afforded by EU family law continue to exist in domestic law”.


It has nothing to do with reciprocity in the sense of other people’s laws; it is that they will continue to exist in domestic law. As I understand it, this Bill transforms into our law all existing EU law to this effect—that is what the Bill is supposed to do. And if it is deficient in that respect, it is for the noble Baroness, with all her expertise, to point that out. So far as I have understood it, all law that applies here on Brexit day will become part of our law, and therefore there is nothing to report in respect of that because that is what EU law was before—which would now be the law here.

[Baroness Kennedy of The Shaws]

I do not know whether I am entitled to interrupt someone who speaks subsequent to me, but I want to explain. We are introducing this into domestic law, but take, for example, the current position for a wife divorced from an Italian spouse. She can go to her local court here in Britain and obtain an order which is then—because of reciprocity and the special arrangements—enforceable in Italy against her ex-husband, who lives there and has not been paying maintenance for his children. It is the business of reciprocity that is problematic. I am sure the noble and learned Lord knows that very careful arrangements have been made as to which court in which country takes cognisance of a case and where the matter is dealt with if there is conflict. All those rules, which have now been set down in regulations, need to be settled with our partners in Europe. It is not enough to introduce it into UK law; we have to have the component of the other party and the other court in agreement. That has to be part of the negotiations. Bringing this into UK law will not do it on its own.

[Lord Mackay of Clashfern]

I think the noble Baroness has demonstrated the truth of what I am saying: namely, that she is concerned with the rights afforded by EU law in this country. The fact that those rights will continue to be enforced in this country is what the Bill is about. Therefore, I do not see any possibility of this amendment having any effect. The noble Baroness has just mentioned its operation in Italy, if the husband is there. That depends not on the domestic law of this country but on the law of Italy, and that is not part of what we can do in this Bill.

Crime and Courts Bill [HL]

Debate between Lord Mackay of Clashfern and Baroness Kennedy of Shaws

Wednesday 12th December 2012 Lords Chamber

[Baroness Kennedy of The Shaws]

My Lords, I support the amendment. I will not take long because I hope that we will move to a vote very quickly. I am the chair of Justice, the legal organisation, and I can say with confidence that that organisation, which represents the legal profession up and down the country, is wholehearted in its support of this amendment. The stories that the noble Lord, Lord Dear, has told of ridiculous cases being brought before the courts could be replicated in robing rooms and courtrooms throughout the land, and I am afraid that it really is time that we put a stop to this.

A very famous American judge once spoke about the importance of the marketplace of ideas, which means listening to views that sometimes one does not like, sometimes, as Lord Justice Sedley said, are irritating, sometimes are provocative, sometimes are heretical and sometimes might upset us. However, that is what democracy is all about, and we should take pride in it.

I wholeheartedly support the noble Lord, Lord Dear, in this amendment, and I hope that all noble Lords who are here will see the importance of this. Unfortunately, the thin-skinned are not serving our democracy well by seeking to have these cases brought. I pity the police who are put into this difficult position, and I am glad to see that both the former Director of Public Prosecutions and the current one recognise that the law is there to deal with truly offensive behaviour or that would lead to further crime and disorder. I hope that noble Lords will support the amendment.

[Lord Mackay of Clashfern]

My Lords, as the third string, it seems to me that freedom of expression is an extremely important part of our democratic heritage, and it has not been won without quite important sacrifices by many people who have gone before us. It is a criterion for seeing whether democracy is supported that freedom of speech is supported strongly.

Some matters connected with freedom of speech are very topical at present with regard to the public press, but the notion that freedom of speech can be tampered with without serious consequences to our democracy is a considerable mistake. The amendment would be an important step in clearing our situation regarding freedom of speech. There is no menace in an insult. Abusive or threatening language is different. It is menacing to people and, rightly, is subject to criminal law. An insult, though, is in no way threatening, except as a challenge to what I am saying. Surely we have all had one or two challenges to what we say, and we are usually the better for it, sometimes by strengthening our argument in favour of what we are saying and sometimes leading to wise reconsideration and withdrawal. I suppose that all of us have had such experiences.

I support very strongly the amendment moved by the noble Lord, Lord Dear, and I hope that if the Government are going to finish their consultation, they will do so in the right direction. It seems to me that they have taken a long time. Often that is necessary in order to clear up some issues, but I am sure my noble friend will explain tonight exactly what the position is in relation to this consultation. Why has the result not been given within the timescale that the Government themselves set?

Crime and Courts Bill [HL]

Debate between Lord Mackay of Clashfern and Baroness Kennedy of Shaws

Monday 28th May 2012 Lords Chamber

[Baroness Kennedy of The Shaws]

My Lords, I wish to address a number of proposals but I start by saying that I heartily agree with noble Lords who have spoken about the importance of our seeking to find alternatives to prison. The increase in prison numbers is horrifying. In this period of increasing youth unemployment, it is alarming to think of the risk of young people offending in greater numbers. More and more of them may find themselves in prison, their lives ruined. That should be a source of great concern to us all. Therefore, I hope that this time we will pursue alternatives to prison with seriousness and I hope that I shall be able to vote in support of such changes.

I want to speak, first, about the creation of the new National Crime Agency to deal with serious crime. I know that there are concerns about this reform and I have reservations myself, but in general I am convinced that globalisation is presenting us with such serious challenges to our national responses to crime that we should be willing to re-examine our present arrangements and be prepared to consider reform.

The very developments that make legitimate markets work—the ease of travel, the electronic transfer of money, the internet and the mobile phone—are all just as effective in developing black markets. In my work in the courts, I see at close quarters the trade in drugs and firearms, the trade in human beings for labour or sexual exploitation, the trade in human organs, which has been all over the newspapers today, and—I was involved in such a case last year—even the trade in babies. Such high-level crime, whether it is terrorism or just traditional organised crime, involves high rewards for the criminals—the money involved is huge. In years to come, we will undoubtedly see an increase in cybercrime.

For the most part, this sort of crime is very difficult to police but it affects all our lives, with greater quantities of drugs on the streets, an increase in gun crime and a pernicious growth in the sex industry. Policing these activities requires high levels of expertise and collaboration. I saw that first hand last year when I chaired an inquiry in Scotland into human trafficking. What became very clear to me was how necessary it is to have real collaboration and systemic responses to this kind of organised crime. Human trafficking, for example, often falls foul of agencies not knowing who takes the lead. It is a crime and so should be led by the police. It should not be fudged as something that might receive an initial investigation by the border agency.

Therefore, I welcome the possibility of a more focused and strategic response, particularly to human trafficking, but to other areas of crime too. However, there are problems. If you increase the centralisation of policing of serious crime in this way, there has to be much stronger oversight than there currently seems to be in the Bill. I am also very concerned that the freedom of information exemption will be continued here and I think that that should be revisited. It is important that the public know about the workings of such an agency when it is going to interfere in the privacy of so many lives.

I turn to the subject of court reforms. I welcome the idea of demystifying the courts and have written about it for years—ever since the late 1970s. It is important that the public know what goes on in courts. I remember that in the 1980s the drama series “Crown Court” did much to awaken public understanding of the processes and the issues that arose. I have no argument with the plan to televise the hearing of appeals in the Supreme Court or the Court of Appeal so that the public can watch and listen to the arguments being presented and understand why the judges make certain decisions. However, let us be very clear that that is not what the television companies are interested in. They are interested in new products and new ways of giving us pictures. They are interested in new titillation from “Big Brother” to “X Factor”.

We know what interests most television companies and I am afraid that some of it feeds the less attractive aspects of the human condition. The television companies want criminals. They do not want to watch judges giving judgments in the commercial courts. They want criminals; they want murder and mayhem; they want rape and carnage; and they want pretty victims and nasty, thuggish offenders. They also want celebrities being dragged before the courts. This is not about transparency; it is about voyeurism. Although it may be starting in a small way, I have great concerns about where this is going to lead. Basically, television companies—I have heard it being discussed—want criminal cases and they want to be in the courtroom. Reporting criminal cases is currently very disappointing for television newsmen. Where are the pictures? That is one of the questions that television people always ask. They do not like talking heads. Talking heads are a bore and that is why it is very difficult to cover trials. You get only snatched shots of witnesses leaving the Old Bailey or those cartoon-like drawings of defendants in the dock that look nothing like the people concerned. I can tell your Lordships that—I have represented them. Sometimes I appear in those drawings.

The television companies are desperate to get into the courtroom. It will start with just having the judge giving judgment, but they are not interested in the men in wigs waxing long and impenetrably about law. That is not what they want to see. They want the sensational, the salacious and the grotesque. So I am afraid that this is one of those rare occasions when I am going to disagree with our former Lord Chancellor, the noble and learned Lord, Lord Mackay, because I do not think that this is a healthy development. I hope that there is no rush to cover judges reading out their sentencing remarks. Letting television cameras into courts carries serious risks and, although this is starting at a low level with the higher courts, the potential for drift is huge and the consequences for justice are very serious.

Perhaps I may explain that the camera does not replicate the public gallery. People say, “But this is just making the public gallery bigger”. It is not. The camera chooses what to look at. It edits as it chooses. Indeed, at the moment the camera is looking at me. It is not looking at the responses of other noble Lords to what I am saying. If you sit in the public gallery of a court, you take in not just what the witness says but what the judge says and you watch the defendant’s responses and other things that happen in the courtroom. That tells you much more than you will ever know from watching snatches of the proceedings on television, and snatches are what they will be. Some states in the United States had to introduce something called gavel-to-gavel coverage because lawyers and people concerned with justice complained that, if you did not show the whole process, people would think that they had seen the trial but they would not understand whole areas of evidence that were never placed before the public. Unfortunately, “News at Ten” will not be interested in putting it all in front of you; it will put in front of you what is most dramatic. The public will think that they have seen the trial because they will have seen bits of it and then they will think that the jury got it all wrong. That will undermine confidence in the system.

Of course, we now have other forms of technology. Once shown on television, cases will be uploaded on YouTube and downloaded on to people’s phones. We will have people playing and replaying cases. Do you think that jurors are going to resist that when we do not have juries staying in hotels as they do in America? Of course juries are reminded not to look at these things, but do you really think that they will not? Do you think that they will not do it in the company of their families at home, so that there is then another jury deciding what it thinks of the evidence? The risks are horrifying. I think that new technology will make it impossible to have a fair trial and, in the end, that will mean that the whole question of jury trial is put in jeopardy.

There is also an issue for judges. In this country, judges enjoy a level of anonymity and unrecognisability. However, that will be lost. You can be sure that comment will be made about the sentences not being strong enough or tough enough. Then judges will be vilified and criticised and they will start to become defensive because they will know that the cameras will keep coming back to their particular court. When Cherie Booth—the wife of a former Prime Minister—sits, will people want the cameras to be in court to see whether her judgments come up to snuff? These may look like advances and transparency to all of you, but I am afraid that it looks like a very serious challenge to justice to me.

I welcome the efforts on diversity. All my professional life I have been arguing about the need for more women in the courts and on the Bench, but I am concerned about a number of things. I am concerned that the issue of merit is not examined in the Bill. I would like to see a new statutory merit test because merit is not a value-free zone; it is an area where many of the judgments that are made are made from a very narrow perspective. As the Chief Justice of Canada has reminded us,

“human beings have a tendency to see merit only in those who exhibit the same qualities that they possess”.

I am afraid that in the recent appointments of two men to the Supreme Court—there is still only one woman in that court—25 consultees were asked for their views and 24 of them were men. The outcome is affected if the gatekeepers are all from one perspective. Currently the emphasis is on one relentlessly individualised understanding of merit and it is too narrow. Instead, the collective competence of the court should be a central feature of appointment, allowing for the correction of deficits in terms of diversity but also in terms of specialist experience, such as people who have experience of trying cases involving children or people who have experience beyond the commercial. Candidates should, in the first instance, fulfil the criteria of intellectual ability and professional experience in practice, but then we might look to some of the other factors that would enrich our courts.

The Bill has much to commend it but much that needs to be looked at again. I hope that in Committee we shall make it very much better.

[Lord Mackay of Clashfern]

Did the noble Baroness see the television recording of the sentencing remarks in a recent murder trial in Scotland?

[Baroness Kennedy of The Shaws]

I did, but I think that one case can often make bad law. Of course, an individual judge giving a judgment in a case can make people think that that was interesting and reasonable. However, you can be sure that, as we cover all cases more regularly, certain judges will be considered too lenient and they will be pursued. We shall find that the hunger for punishment will be fed by certain television stations. I am concerned about where this will go, so I hope that a good deal of caution will be shown before we go down this road.