Children and Families Bill

Debate between Lord Mackay of Clashfern and Lord Lloyd of Berwick

Monday 21st October 2013 Grand Committee

[Lord Lloyd of Berwick]

Neither the noble and learned Lord nor I were Family Division judges, but another Family Division judge said that the type of case where it is not possible to tell on the evidence whether it is the mother or the father, but it is clearly one or the other, occurs very frequently. That is the kind of case that the amendment deals with.

[Lord Mackay of Clashfern]

The noble and learned Baroness, Lady Hale, made it perfectly plain that the case that was set up for the Supreme Court was a very special case that she certainly would not expect. She has vast experience of these matters, as has Lord Wilson. The noble and learned Lord, Lord Lloyd, said that I was not a Family Division judge. I certainly was not, but in the Court of Session in Scotland I had family cases. That was a very long time ago but some of the experience still stays at me.

Terrorism Prevention and Investigation Measures Bill

Debate between Lord Mackay of Clashfern and Lord Lloyd of Berwick

Tuesday 15th November 2011 Lords Chamber

[Lord Mackay of Clashfern]

My Lords, we have to bear in mind that as the Bill now stands, the initiator of this procedure is the Secretary of State with responsibility for national security. The Secretary of State has available to him or her all the information that the state can provide, including on a secrecy basis, on these matters.

When a court is deciding something, the balance of probabilities is a suitable standard because it is not expected to believe one thing or the other; it is to accept the balance of the evidence one way or the other. Requiring the Secretary of State to believe is a higher standard than the balance of probabilities. I cannot believe that the Secretary of State would be entitled, on a mere balance of probabilities, to come to the belief that this is what happened.

Of course, Secretaries of State might be rather special, and they might be able to come to a faith and belief without much in the way of evidence. However, that is taken care of by the language in the Bill as it stands, that the belief must be reasonable. So it is not only belief but a reasonable belief. In other words, the Secretary of State must have available to him or her information as a result of which he or she comes to be convinced that the person has engaged in the activities that the noble Lord kindly laid out for us. I agree that it is an extremely serious matter but the language in the Bill is suitable to a situation in which a decision has to be made, not by someone who has to review the evidence as an impartial judge but by someone who comes to the evidence with the executive responsibility to take the necessary action. In my view, this requirement that the Secretary of State should reasonably believe that the person in question has been involved in these activities, is a stronger and more reliable basis for going forward than a mere balance of probabilities. It is difficult to see how one could be convinced on the balance of probabilities alone.

[Lord Lloyd of Berwick]

The noble and learned Lord refers to a “mere” balance of probabilities. He will of course be aware of the many cases decided in the highest courts where what he calls a “mere” balance of probabilities can approach the criminal standard, specifically in cases such as these.

[Lord Mackay of Clashfern]

I agree with that and am very much aware of it, but it is still a mere balance of probabilities. Although it can go very close to the criminal standard, it is still a balance of probabilities that is being used, and I would say that the criminal standard requires a jury in effect to believe—to be sure—that this is what happened. I regard “reasonable belief” as a very strong and appropriate phrase to use where the person initiating the procedure is the person with the responsibility to have before him or her all the necessary material.

Terrorist Asset-Freezing etc. Bill [HL]

Debate between Lord Mackay of Clashfern and Lord Lloyd of Berwick

Monday 25th October 2010 Lords Chamber

[Lord Lloyd of Berwick]

Did he not say that? He said that he differentiated this measure from control orders on the ground that we are not concerned here with human rights, but we are, albeit a different provision under the Human Rights Act—Article 1 of Protocol 1, which is that a person’s property cannot be interfered with. We are in exactly the same area as control orders, which is why the judges in the Supreme Court have described asset freezing of this kind by Treasury order as being almost as restrictive as control orders themselves. The noble Lord has not dealt with any of those points. I think that the noble and learned Lord would like to intervene.

[Lord Mackay of Clashfern]

My Lords, I would like to be sure that I understand. The noble and learned Lord’s Amendments 9 and 11 seem to allow the Treasury to make an application for leave to make an order. They do not provide for the Treasury making, nor suggest that the Treasury makes, the order in the end.

[Lord Lloyd of Berwick]

My Lords, I entirely agree with the noble and learned Lord. That is the normal way in which it is done—let the Treasury make the order, but only with the leave of the judge. I see no reason why that should not flow. It is an even clearer case than that of Mareva injunctions, where it was the judge who made the order. Either way, that is the way in which we should be dealing with this. I am sorry to say that I fear that it is pointless for me to take this any further, so I reluctantly beg leave to withdraw the amendment.