Nationality and Borders Bill

Debate between Lord Mackay of Clashfern and Lord Pannick

Lords Hansard - Part 1 & Report stage
Monday 28th February 2022 Lords Chamber

[Lord Pannick (CB)]

My Lords, I shared the concerns expressed by my noble friend Lady D’Souza about Clause 9 as it was originally drafted. However, I am very satisfied with the amendments tabled by my noble friend Lord Anderson, particularly as the exercise of these powers is subject to the control of the independent Special Immigration Appeals Commission. I say to the noble Baroness, Lady Bennett, that this is not to have trust and faith in the Home Office. Whether or not that is justified, I have trust and faith in the independent Special Immigration Appeals Commission. I say to the noble Baroness, Lady Warsi, that this is not a compromise or papering over the cracks. Rather, this is a great tribute to the noble Lord, Lord Anderson, and to the work done by the Minister: it is to achieve the protection of both the public interest and the rights of individuals. This is what this House should be aiming to do.

[Lord Mackay of Clashfern (Con)]

My Lords, I had the honour, with the then Leader of the House, to present to this House the 1981 Bill which became the Act. We certainly understood that it was a very drastic power which enabled citizenship to be taken away. Therefore, it was only right that notice should be required, and provided for, in Section 40(5) of that Act. It included the need to make clear to the person affected that the application was on. It used the last known address as a possibility. However, the more that difficulties arise, the more it is seen that something further is required. Therefore, it is right that Section 40(5) should be amended. I think that the amendments, as now proposed—and subject to the amendments of the noble Lord, Lord Anderson of Ipswich, if, as I hope, the Government will accept them—are an acceptable way of dealing with this very delicate matter.

I agree entirely with what the noble Lord, Lord Pannick, said, that the real and ultimate protection is in the independent judicial review by the special court for that purpose. It is essential that, as this nation is subject to many different ways of being attacked, we should be protected as much as possible. This is a very sensible way to do it, provided that the Government are prepared to accept the proposal of the noble Lord, Lord Anderson of Ipswich.

Courts and Tribunals (Online Procedure) Bill [HL]

Debate between Lord Mackay of Clashfern and Lord Pannick

Report stage (Hansard): House of Lords
Monday 24th June 2019 Lords Chamber

[Lord Mackay of Clashfern (Con)]

My Lords, I took some part in previous discussions of these matters in relation to the powers of the Lord Chief Justice and the fact that he—or she, if it happens to be so—is now the head of the judiciary and the Lord Chancellor is not. I am inclined to remember—I may be wrong, and I hope that my noble and learned friend will correct me if I am—that a provision of exactly this type was made in relation to the other procedural committees that currently exist. It is a considerable time since that provision was made, and as far as I know, no trouble has emerged. That is because I would expect the Minister to exercise great care in this matter. I think I am right in saying that that was not altered in the Constitutional Reform Act, as it is called, which changed the responsibility of head of the judiciary.

I am therefore inclined to want to hear a bit more about this before we come to a decision. When so much agreement has been reached, it is a pity if we fall from agreement at the last minute, particularly if to do so would produce a very strange anomaly between the existing law relating to either of the other procedural committees and this rather more technical committee.

I do not think Clause 9 has to do with the procedure rules. It has to do with the possible obstruction to those rules which may exist in legislation already passed as part of our law. The Lord Chancellor is entitled to make regulations to amend the Acts of Parliament which interfere with the proposals being accepted as Online Procedure Rules. The rules may well have an impact on old statutory provisions—for example, those which have an impact on whether or not you can have online procedures—most of which, I imagine, did not envisage that. It may be that they can be interpreted to include considerations of that kind, but that is the nature of the problem in relation to Clause 9.

After thinking this through as best I can, I would not care for the Lord Chief Justice to have to be involved in the regulation-making aspect of this business. If regulations are required, they should be made by the person with the appropriate political responsibility. I therefore have doubts about the relevance of the rules in relation to Clause 9.

As to Clause 8, as far as I know, existing law was left unchanged by the Constitutional Reform Act. As to Clause 9, I wonder whether it is appropriate for the Lord Chief Justice to get himself involved in the nitty-gritty of political regulation.

[Lord Pannick]

The noble and learned Lord says that it is not appropriate for the Lord Chief Justice to be involved in Clause 9 matters—that he is not relevant to that—but the clause makes him involved. It gives him a role because he has to be consulted, so he is not irrelevant at all.

[Lord Mackay of Clashfern]

Exactly. He is doing exactly what I think is required. If the person who has the responsibility finds out that it is okay with the Lord Chief Justice—at least that is what I hope would happen—that person then goes on and does it. Therefore, consultation is probably the right balance at that stage. I am rather against the idea of involving the Lord Chief Justice in any form of political work. I thought the Constitutional Reform Act sought to achieve separation between the judiciary and the legislature, so that the acting judiciary were no longer part of the legislature.

Courts and Tribunals (Online Procedure) Bill [HL]

Debate between Lord Mackay of Clashfern and Lord Pannick

Committee: 1st sitting (Hansard): House of Lords
Monday 10th June 2019 Lords Chamber

[Lord Pannick]

My Lords, like the noble Lord, Lord Beith, I have added my name to the amendment tabled by my noble and learned friend Lord Judge to ensure that the powers which are being conferred on the Lord Chancellor can be exercised only with the concurrence of the Lord Chief Justice. My reason for doing so is essentially the same as that of the noble Lord, Lord Beith, and my noble and learned friend Lord Judge: the powers conferred by the Bill are exceptionally broad and there need to be adequate controls.

The Minister’s response before this afternoon essentially amount to, “Don’t worry—there are sufficient means through committees that will ensure that these powers are never used inappropriately, far less abused”, but as my noble and learned friend Lord Judge mentioned, the Lord Chancellor has the power to appoint the majority of the committee. The most effective means of ensuring that these powers are used only in an appropriate manner is to ensure that they may be exercised only with the concurrence of the Lord Chief Justice. As the Minister indicated during one of our earlier debates this afternoon, to amend the Bill in this way would considerably help to resolve many of the other defects in it which we have been debating.

My noble and learned friend Lord Judge made a point that is so important that it needs to be repeated: there is nothing novel about legislation requiring the concurrence of the Lord Chief Justice and the Lord Chancellor. This very Bill, at Clause 6(2), states that the Lord Chancellor’s powers to make regulations relating to the committee may be exercised only,

“with the concurrence of … the Lord Chief Justice and … the Senior President of Tribunals”.

Therefore, I suggest to the Committee that the question is not whether in principle ministerial powers should ever be constrained by a need to obtain the concurrence of the Lord Chief justice but whether that restriction is appropriate in relation to these powers. In my view, such is the breadth of the powers that we are conferring and so intimately do they address the fair administration of justice, which is after all the business of the Lord Chief Justice, that his or her agreement should be needed for their exercise.

Whether it was a blandishment or otherwise, I was very pleased earlier to hear the Minister give a commitment to consider this issue actively before Report. I very much hope that, on Report, the Minister will feel able to table an amendment or amendments to address this issue or, at the very least, to support amendments in the name of my noble and learned friend Lord Judge.

[Lord Mackay of Clashfern]

Having had the honour of holding the office of Lord Chancellor when the Lord Chancellor was the head of the judiciary, I think it is right for me to say a word or two about the present position.

It is very important to remember that our constitution recognises three arms: the legislature, the Executive and the judiciary. The judiciary is a distinct arm from the Executive. The Executive have responsibilities in relation to the judiciary, and of course the judiciary has responsibilities in relation to the people of this country in a way that is unique. If somebody else is entitled to say, without getting the ultimate agreement of the Lord Chief Justice, “We’re going to alter your procedures in the court. We’ll tell you about it and we’ll consult you but, if you don’t like it, we’ll do it all the same”, that seems to subvert the idea that the Lord Chief Justice is the head of the judiciary. The judiciary must act according to procedures and, if you alter the rules or procedures without his agreement, it seems to me that you subvert his position as the head of the judiciary as distinct from the Executive and the legislature.

Incidentally, I cannot help remarking at this stage that the judiciary has been silenced from having any part in the legislature. I regard that as an extraordinarily retrograde step. I hope that some day it will be put right by a responsible Government and that we will have the very great advantage of hearing in the House of Lords not just all past Lord Chief Justices but the present one as well.

The Lord Chief Justice’s agreement seems to me absolutely essential. Indeed, I would like to feel that he would be the initiator of changes in procedure as a result of committee recommendations. His responsibilities will be encroached upon if these procedures do not work.

My only other remark is that the reference to the Secretary of State in Clause 6(2) is probably to the Secretary of States for Wales, the language of Wales being important in this connection.

Business of the House

Debate between Lord Mackay of Clashfern and Lord Pannick

Thursday 4th April 2019 Lords Chamber

[Lord Mackay of Clashfern]

That is what it says, but why should we accept that? It is supposed to be a negotiation. If we wanted an alternative arrangement, I should have thought that the position should be us saying what that alternative is. I have heard, “We don’t know what the UK wants”, again and again. A specific amendment to the agreement might well be subject to further consideration.

[Lord Pannick (CB)]

My Lords, the House of Commons sent us a Bill that its Members consider urgent. We should get on and consider its merits and demerits. Forty-nine noble Lords have put their names down for Second Reading, including the noble Lord, Lord Forsyth. There will be ample time during Second Reading for all these points to be explored. I suggest that we get on and do it.

Privileges and Conduct

Debate between Lord Mackay of Clashfern and Lord Pannick

Thursday 15th November 2018 Lords Chamber

[Lord Pannick]

She did not conduct a cross-examination, and it is very difficult for the person making the decision to enter into the arena to do so. The experience of all distinguished inquiry chairmen, of whom there are many in the House—particularly the noble and learned Lord, Lord Woolf—is that when they are making a judgment in an inquisitorial inquiry on a question of fact which depends on credibility, they either allow the parties to cross-examine or they appoint counsel to the inquiry to conduct that process, which would also be entirely acceptable.

[Lord Mackay of Clashfern]

Is the noble Lord, Lord Pannick, suggesting that this lady, appointed by the House as a commissioner, did not have the necessary skills to probe the evidence on both sides? According to her, that is what she did and she had to form a view about it which she presented to the committee. I have no reason to suppose that she did not reach the correct conclusion.

[Lord Pannick]

I have no quarrel with the good faith of the commissioner. She did not conduct a cross-examination; she did not appoint someone to do it; nor did she allow the noble Lord, Lord Lester, through his counsel or his solicitor to do so. If the noble and learned Lord were to look in the Times today and see the letter from the solicitor to Ms Sanghera, he would see that he does not suggest that a cross-examination was carried out; his argument is that it was not necessary and fairness did not require it.

The noble Baroness, Lady Hussein-Ece, expressed concern about how we are perceived outside this House and said that we must be careful not to deter complaints. I do not accept that for us to follow a fair procedure that applies in all other contexts would either deter genuine complainants or damage our public reputation. On the contrary, we would be recognising and applying standards of fairness that are universally recognised in all other contexts.

European Union (Withdrawal) Bill

Debate between Lord Mackay of Clashfern and Lord Pannick

Wednesday 21st March 2018 Lords Chamber

[Lord Mackay of Clashfern (Con)]

My Lords, I strongly support the amendment. It is essential that the status of retained EU law in our law should be determined by Parliament as part of this Bill. I supported an amendment that the noble Lord, Lord Pannick, moved earlier to say that retained EU law should be treated as primary legislation. It is so treated by the Bill for the purposes of the Human Rights Act. It is highly desirable that this should be fixed definitely as part of the arrangements and not left to be decided, as it were, ad hoc from time to time by the use of the power to which the noble Lord, Lord Bassam of Brighton, has drawn attention.

Originally, the amendment that the noble Lord, Lord Pannick, proposed covered the whole of this law. I am inclined to think that the Clause 2 provisions, which are already in our law, have the status given by our law already. Some of them are statutes and some are subordinate legislation. Having considered this a little further since we discussed this some long time ago, I am inclined to think it might be wise to restrict the provision that this should be regarded as primary legislation to the Clause 3 provisions.

[Lord Pannick]

My Lords, in the previous debate the Committee deliberated on the vice of Clause 17(1). The amendment proposed by the noble Lord, Lord Bassam of Brighton, identifies a specific reason why Clause 17 (1) is so objectionable. When the Constitution Committee put to Ministers our concern, to which the noble and learned Lord, Lord Mackay of Clashfern, has just referred, that the Bill should identify the legal status of retained EU law, the answer from Ministers was that if necessary or appropriate they could use the powers conferred by Clause 17(1) to designate what legal status retained EU law would have, and designate different parts of retained EU law for different purposes. The Constitution Committee made its view very clear in paragraph 69 of its report:

“It is constitutionally unacceptable for Ministers to have the power to determine something as fundamental as whether a part of our law should be treated as primary or secondary legislation”.


We debated what legal status should be given to retained EU law earlier in Committee. I respectfully agree with the observations made just now by the noble and learned Lord, Lord Mackay of Clashfern. I emphasise, however, that it is the width of Clause 17 (1) that is so objectionable as it enables Ministers to assert that they could use it to make changes of such constitutional enormity to our legislation. I agree, therefore, with the concerns that the noble Lord, Lord Bassam of Brighton, has expressed.

European Union (Withdrawal) Bill

Debate between Lord Mackay of Clashfern and Lord Pannick

Committee: 4th sitting (Hansard - continued): House of Lords
Monday 5th March 2018 Lords Chamber

[Lord Pannick]

I do not think that the courts have accepted that proportionality can be a challenge by way of judicial review where you are not raising an issue of EU law or convention law—but we have come a very long way towards recognising proportionality as a principle of the common law. That is one reason why I am asking this very important question. I simply do not know whether you can challenge retained EU law after exit day by reference to traditional common law principles.

One reason why this matters is that the Supreme Court, in the HS2 case, suggested that this might be possible under existing law. As was raised in the debate last Monday, we should also bear in mind that, under Clause 2, retained EU law includes statutory instruments that do not owe their legal basis to the European Communities Act. They include statutory instruments enacted through other mechanisms, albeit that they are linked to EU law. At present, one can challenge those instruments by reference to traditional common law principles. Therefore, if Clause 1(1) were intended to prevent such a challenge after exit day, it would be a significant change in the law.

[Lord Mackay of Clashfern (Con)]

Are these questions affected by the proposal to make this particular branch of law statutory? In that case, certain principles of our constitution might cause some difficulty.

[Lord Pannick]

The noble and learned Lord is absolutely right. If retained EU law were to be categorised as primary legislation, such challenges could not be brought. But the Minister resisted that suggestion in our earlier debate. I am concerned with the Bill as it is at the moment. What is the Government’s intention in this respect?

Civil Procedure (Amendment) Rules 2017

Debate between Lord Mackay of Clashfern and Lord Pannick

Wednesday 13th September 2017 Lords Chamber

[Lord Mackay of Clashfern (Con)]

My Lords, I want to say one thing about this statutory instrument. It deals with a particular class of judicial review relating to the environment. It is special in this way: there are limitations of cost already in the system—of £5,000 where the claimant is claiming only as an individual, not as or on behalf of a business or other legal person, and £10,000 in all other cases. For a defendant, the amount is £35,000. In the previous arrangements that was fixed. It is certainly easy to think that, for a claimant, £5,000 might be a substantial amount in relation to his or her environmental interest.

These rules allow the court jurisdiction and discretion to alter these figures either up or down. It is important that the discretion is limited by this phrase:

“The court may vary such an amount or remove such a limit only if satisfied that … to do so would not make the costs of the proceedings prohibitively expensive for the claimant”—


that is the rule from the convention—and,

“in the case of a variation which would reduce a claimant’s maximum costs liability or increase that of a defendant, without the variation the costs of the proceedings would be prohibitively expensive for the claimant”.

The protection for the claimant is the jurisdiction and discretion of the court within the limits that that sets out. Is not in any way a damaging type of jurisdiction or discretion, but one that can help people who have a need for that. That must be taken into account in considering this instrument.

[Lord Pannick (CB)]

My Lords, my response to the noble and learned Lord is that these rules remove the certainty that potential claimants previously enjoyed. That is the vice as I see it. It is essential in these cases that a person considering starting proceedings knows at the outset the maximum liability they will incur. It is no answer to them, when they are thinking of bringing proceedings, that the cap may be reduced as well as increased. They want to know. If they do not know at the outset when considering bringing these proceedings what the maximum is, the likelihood is that many of them will be deterred from bringing these proceedings. That is the damage to access to justice.

Investigatory Powers Bill

Debate between Lord Mackay of Clashfern and Lord Pannick

Wednesday 13th July 2016 Lords Chamber

[Lord Mackay of Clashfern]

One possible approach would be to consider what is meant by legal professional privilege. It is a privilege of the account that the client gives to the solicitor of the facts on which the client wishes to be advised, and the advice that the solicitor gives in return to that application. A statement of where, for example, the client is at that particular time is not part of either of those. Therefore, that is not, strictly speaking, covered by legal professional privilege at all. This is a way of looking at this matter that is slightly differently from trying to make conditions on legal professional privilege.

[Lord Pannick]

I thank all noble Lords who have contributed to this debate, particularly those who have provided anecdotes as to their previous experience. I also thank the noble and learned Lord, Lord Keen, because I think the whole Committee recognises that he and the Government are striving to find the right answers to what are undoubtedly very difficult problems. There is a balance between maintaining legal professional privilege and ensuring the security of this country.

I start from the same place as the Minister: legal professional privilege is absolutely fundamental to the rule of law; there is no dispute about that. It seems to me, therefore, that there has to be a compelling justification for allowing intrusion by the authorities into matters that are genuinely covered—not iniquity—by legal professional privilege. The Minister has been very frank: in the past 16 years, there has been no experience of the ability to intrude into genuine legal discussions being of any value to the security forces. I therefore wonder whether it is necessary to have such a power. Its existence, particularly if we were to enshrine it in this Bill, would have—it does have—a damaging effect on clients’ confidence that they are speaking to their lawyers in genuine confidence.

The example the Minister gives—it is a real example, at least in principle—is that the authorities may learn the location of the client, which may tip them off and enable them to prevent a terrorist outrage. It seems to me that that is not part of the privileged material but incidental to it. An acceptable way forward may be that the authorities would have to show and satisfy the judicial commissioner—and maybe the Secretary of State as well—that there is compelling and exceptional evidence of a real threat to life, such that they should be able to listen in so as to obtain this incidental material, and that the authorities would be obliged immediately to dispose of, not retain, any information that is not incidental to legal advice but is the actual legal advice. I remain doubtful but I will wait to see what the Government bring forward at Report stage. No doubt we will return to the subject—we will have to discuss it again—but this has been a helpful debate. I am grateful to noble Lords and I beg leave to withdraw the amendment.

Medical Innovation Bill [HL]

Debate between Lord Mackay of Clashfern and Lord Pannick

Friday 24th October 2014 Lords Chamber

[Lord Pannick]

My Lords, I added my name to Amendment 6 because I agree with the noble Lord, Lord Winston, that it would improve the Bill to provide a definition of the core concept of innovation. As the object of the Bill is to provide greater clarity for medical practitioners, it is surely perverse not to include any definition of that core concept in the Bill. No doubt Amendment 6 needs improvement, perhaps for the reasons given by my noble friend Lord Kakkar, but I could not be persuaded that it is beyond the very considerable skills of the draftsman of the Bill, Daniel Greenberg, to provide a definition of innovation.

[Lord Mackay of Clashfern]

My Lords, the word “innovation” is a straightforward word in the English language. I am not sure that clarity is necessarily brought by multiplying it by how many in this amendment. Apart from anything else, one of the possibilities of innovation is for a doctor to say, “The standard treatment for this is a particular course of operation and chemotherapy. My belief is that that would not ultimately save you; it would subject you to a lot of pain and suffering and so on. The best thing, as far as I am concerned, is that you should not have any further treatment”. I am not sure whether that comes under the definition in Amendment 6, but if we want simplicity, we should go for perfectly clear English words. “Innovation” is one of them.

Criminal Justice and Courts Bill

Debate between Lord Mackay of Clashfern and Lord Pannick

Wednesday 30th July 2014 Lords Chamber

[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.

Immigration Bill

Debate between Lord Mackay of Clashfern and Lord Pannick

Tuesday 1st April 2014 Lords Chamber

[Lord Pannick (CB)]

My Lords, I, too, support this amendment, which raises a short but vital issue of principle, which is whether it is consistent with the rule of law for one party to the proceedings to have the power to determine the scope of the jurisdiction of the tribunal before which it appears. So far as I am aware there is no precedent for such provision, for the very good reason that it is objectionable in principle. It should be a matter for the tribunal to apply whatever criteria Parliament thinks appropriate to determine whether the tribunal can hear an appeal that raises new grounds. I simply cannot understand why the Secretary of State does not trust the tribunal to decide on the application of the criteria which Parliament sees fit to lay down. I, too, hope that the Minister will be able to tell the House that, in the light of the concerns expressed this afternoon, the Government will think again on this important matter before Third Reading.

[Lord Mackay of Clashfern (Con)]

My Lords, I have the disadvantage of not seeing this matter quite in the way that my colleagues have seen it. This tribunal is an appeal tribunal from a judgment of the decision of the Secretary of State. This clause deals with a situation in which it appears, in the course of the proceedings or perhaps before they start, that there is a new ground of decision that has not as yet been dealt with by the Secretary of State. It is the Secretary of State’s jurisdiction to decide that, and the appeal tribunal’s jurisdiction is to consider appeals that arise from the decision of the Secretary of State. Therefore the essence of this particular procedure appears to be that a new decision is called for from the Secretary of State on a matter which has not been before the Secretary of State previously.

I do not see how that is in any way a breach of principle, but I know from experience long past that the way in which immigration tribunals deal with these matters has been a cause of great difficulty. During my time there were great accumulations of arrears in the immigration tribunals, and all sorts of efforts were made to try to deal with that. One of my successes, which I cherish, was to get money from the Treasury to set up new immigration appeal tribunals in the hope that that would reduce the number of cases waiting. Like all such efforts, that does not seem to have worked, as the list of appeals still seems to be pretty long.

That seems to be the essence of this issue. I agree that there are problems when this sort of thing arises in the course of an appeal on an earlier decision, but the fact that that happens is something which has to be dealt with. One of the difficulties that my noble friend Lady Berridge referred to was that it is often very difficult, in the course of these proceedings, to get in touch with the Home Office representative before the case starts; the case goes ahead without anyone getting in touch with them. That is not a new difficulty, and I suppose that this amendment is intended to deal with it to some extent. There is an underlying difference in principle between the way in which my colleagues look at this and the way I think it is possible to look at it.

Marriage (Same Sex Couples) Bill

Debate between Lord Mackay of Clashfern and Lord Pannick

Monday 8th July 2013 Lords Chamber

[Lord Pannick]

My Lords, I do not support the amendments because each of them would wrongly suggest to the happy couple entering into a state of matrimony—to their families, their friends and to the world at large—that theirs is not a marriage like any other. The amendments would suggest that it is a distinct form of marriage to be placed in a category of its own. Since the very purpose of the Bill is to recognise same-sex marriages as the voluntary union of one man with another or one woman with another, in the same way as the voluntary union of a man and a woman, it would surely be bizarre in the extreme for us churlishly to take away by a subsection part of the recognition and status that the Bill will accord.

No one would seriously suggest, I assume, that there should be a legislative provision that states that marriage between divorced persons shall be referred to as marriage (divorced couples). The whole point of the Bill is that all lawful marriages, which will include marriages between same-sex couples, are marriages— although, as we all know from our personal experience, each and every marriage is unique.

The noble and learned Lord, Lord Mackay of Clashfern, emphasised that there are some respects in which the Bill treats a same-sex marriage as different from a marriage of an opposite-sex couple. But the whole point of the Bill, surely, is that, notwithstanding those differences, the Bill will implement the basic and vital principle that a same-sex marriage is a marriage with the same status and consequences as any other.

I entirely understand why those who are fundamentally and sincerely opposed to the Bill should wish to introduce these amendments. But they should recognise why those of us who support the Bill regard them as simply incompatible with the fundamental purpose of the legislation.

[Lord Mackay of Clashfern]

The noble Lord said that the two types of marriage are to have exactly the same consequences. I think I heard him correctly.

[Lord Pannick]

I said that I understood the noble and learned Lord’s point that the Bill in various respects, which he referred to, treats same-sex marriage and opposite-sex marriage as distinct in various respects. But I made the point that the purpose of the Bill is nevertheless to recognise that each category should be accepted as a lawful marriage for the purposes of the law of England.

[Lord Mackay of Clashfern]

The noble Lord will be able to say which of my amendments in any way detracts from that. I understood him to say in his earlier submission that there was no difference in consequence. There is a very vital difference in consequence in this respect: a child born to a woman in a same-sex marriage is not a child of the marriage.

[Lord Pannick]

I respectfully object to the suggestion that a Bill with these purposes and valuable effects should distinguish between same-sex marriage and opposite-sex marriage and necessarily imply a division between them. That is what I object to.

--- Later in debate ---

[Lord Mackay of Clashfern]

My Lords, I put my name to this amendment too. I do not think that the fact that it is a public office is a distinction that is important. The important thing is that the law is changed after somebody has taken a job, and that law affects the conscientious view that that person has of the job. The nearest thing that came to my mind, in my own experience and connection with this, was when Sunday trading was introduced, again on a free vote. Those who were employed were given terms in relation to that. It seems to me that some such allowance is only fair, and fairness should apply in public offices as well as in private offices.

[Lord Pannick]

I apologise to the noble and learned Baroness. For my part, I cannot accept that a public official is entitled to protection against the requirement to perform his or her basic obligations in relation to the official duties which they are contracted to perform. As was pointed out in Committee, a judge or a magistrate who administers the law of the land cannot refuse to administer laws to which he or she objects. The law may well be clarified after that judge or magistrate has been appointed. No doubt some registrars have a conscientious objection to marrying divorced couples; I cannot see that a conscientious objection to same-sex marriage is any different.

Of course, as has been pointed out, the law does allow, in various contexts, for conscientious objections, including doctors and abortion and teachers and religious education. Sunday trading was mentioned by the noble and learned Lord, Lord Mackay of Clashfern. The difference, as I see it, is that the registrar is performing the function of the state, and the function of the state in this respect is to marry people. The law, not the registrar, determines who is eligible to marry. It is unfortunate if registrars take the view that they cannot continue to perform this role, but no one is asking them to approve of or bless same-sex marriage; all that they will be required to do is to perform the official function that they have contracted to undertake.

Crime and Courts Bill [HL]

Debate between Lord Mackay of Clashfern and Lord Pannick

Tuesday 4th December 2012 Lords Chamber

[Lord Pannick]

I thank the Minister for reverting to the important Amendments 83, 84 and 85. As the noble Lord mentioned, your Lordships’ Constitution Committee was critical of the proposal in the Bill for the Lord Chancellor to sit as a member of the appointments committee appointing the Lord Chief Justice and the President of the Supreme Court. The Minister's advocacy in Committee was outstanding but, as he will know, sometimes the best advocacy is in support of a completely hopeless cause. I genuinely thank the Minister and the Lord Chancellor for listening on this important subject. It is a matter of constitutional concern. I thank them for bringing forward amendments to the Bill in accordance with the recommendations of your Lordships’ Constitution Committee.

[Lord Mackay of Clashfern]

I wonder whether it is worth mentioning that, of course, the Supreme Court is of interest in jurisdictions other than those in which the Lord Chancellor has authority now, and there may be a question about the balance of that. Admittedly, other jurisdictions have representation on the selection committee, but it may be worth while keeping in place that balance.

Justice and Security Bill [HL]

Debate between Lord Mackay of Clashfern and Lord Pannick

Tuesday 19th June 2012 Lords Chamber

[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.

Marriages and Civil Partnerships (Approved Premises) (Amendment) Regulations 2011

Debate between Lord Mackay of Clashfern and Lord Pannick

Thursday 15th December 2011 Lords Chamber

[Lord Pannick]

My Lords, I very much respect the principled views of the noble Baroness, Lady O'Cathain, but this is not a matter of conscience, it is a matter of legal interpretation. As the noble and learned Lord, Lord Mackay of Clashfern, said, the question is whether there is any real doubt as to what a court would say on the matter. Your Lordships may have found it rather striking that the noble and learned Lord did not give the House any opinion at all as to the answer to this question; he confined himself to saying that views are expressed by QCs on this matter. In my experience of this House, it is rare for the noble and learned Lord not to give the House his very welcome opinion on issues, and I am sorry that he gave the House no opinion on the credence that could be attached to the opinions that have been expressed.

My view, for what it is worth, as a barrister practising in the area of human rights law and administrative law, is that there is no possibility whatever of any court accepting the arguments that have been advanced in those opinions. That is for two reasons. First, the court would focus on Section 202. It would recognise that Parliament has expressed in the clearest possible terms that religious bodies have a power to conduct civil partnership ceremonies but no duty whatever to do so. The regulations faithfully implement what Parliament has decided

The noble Baroness, Lady O'Cathain, expressed a concern that had been expressed by her advisers that that is not good enough because it is the Equality Act that, as she put it, poses the danger. The noble and learned Lord, Lord Mackay, made the same point. My answer to that concern is that it is the very Equality Act that expressly addressed civil partnerships and allowed civil partnerships to be conducted on religious premises for the first time but made it absolutely clear that religious bodies have no duty to conduct such ceremonies.

[Lord Mackay of Clashfern]

The noble Lord must accept that the operative effect of the provision in the Equality Act is to make an amendment to the Civil Partnership Act 2004, and nothing more.

[Lord Pannick]

I entirely accept that, but it is the Equality Act that addressed this very question of the circumstances in which religious bodies may, but have no obligation to, conduct civil partnership ceremonies. It therefore seems to me highly unlikely that any court will say that that very legislation, the Equality Act, nevertheless imposes indirectly some duty on religious bodies to do precisely what Section 202 of the same Act states that they do not need to do.

Secondly, if there were any ambiguity in the Equality Act—there is none, but if there were—a court would interpret the Equality Act by reference to the right under the European Convention on Human Rights and by reference to Section 13 of the Human Rights Act, which this Parliament enacted, which states that on any question that might affect the exercise by a religious organisation of the right to freedom of religion, the court must have particular regard to freedom of religion. It is plain beyond argument that the court would therefore say that a religious body has no duty to do what would conflict with the religious rights of the church or other religious body concerned.

Earlier in this debate, the noble Lord, Lord Tebbit, asked for assurances that the European Court would not interfere in this matter. I would be extremely surprised if the European courts would trespass on a fundamental question of religious freedom, but if they did, nothing that we decide today would affect that—it is simply irrelevant to this debate and therefore cannot be used either to support or to argue against the Prayer that the noble Baroness presents to the House.

[Lord Pannick]

I submit that this Parliament must proceed by what we recognise is the overwhelming probability. We cannot legislate on the basis of something that would be wholly contrary to what Parliament has decided as recently as 2010. I say with great respect to the noble Lord that the attitude of the European Court is completely irrelevant to this debate.

I have to tell noble Lords that if I were asked to advise a client on the prospects of success for someone who wished to compel a religious body to hold a civil partnership ceremony against its will, my advice—and, I am sure, the advice of every other competent lawyer practising in this field—would be that any such application would be completely hopeless and misguided. Therefore, I hope that the noble Baroness will withdraw her Prayer for annulment.

[Lord Mackay of Clashfern]

The noble Lord took great comfort from the Human Rights Act, which of course dates back some time before the 2004 and 2010 Acts came into being, yet the noble Lord, Lord Alli, and those with him, thought that it was wise to put into the 2004 Act an avoidance of doubt provision. Therefore, they were not prepared to trust the Human Rights Act provision alone to avoid any doubt that might arise. Such a provision does not suggest that there would be a legitimate attack; it simply suggests that doubt is to be put at rest completely, and that is what I should like to see here.

[Lord Pannick]

My answer to the noble and learned Lord is that in 2010, when the noble Lord, Lord Alli, was seeking to persuade the House to create for the first time, contrary to what had been decided in 2004, a power for religious bodies to conduct civil partnership ceremonies, it was perfectly understandable that it should be made clear that this was a power but not a duty. We had that debate and resolved the matter. There is no ambiguity and we really do not need to revisit it.

Health and Social Care Bill

Debate between Lord Mackay of Clashfern and Lord Pannick

Wednesday 7th December 2011 Lords Chamber

[Lord Mackay of Clashfern]

My Lords, the decision of the commissioner is certainly well argued, but under the existing system it is subject to appeal to the tribunal and the Department of Health intends to exercise the right to appeal. In that situation, in my submission, the Minister is entitled to give this House the best information he has. There is no question of failure to release this report in any way leading to the noble Earl, Lord Howe, misleading this House. I do not believe that is at all likely.

The noble Lord, Lord Pannick, developed a cogent argument, but the question he raises in relation to what is to happen here today is a different question from that which arises on the appeal. Unfortunately, although it is a different question, it is very closely related because, if the document is to be released now, the question of an appeal to the tribunal is evacuated because the document will already have become public, which is the issue in the appeal. Therefore, I believe that my noble friend Lady Williams of Crosby has suggested the best way out of this business: the Government and the other parties to the appeal should do what they can to have the appeal expedited. I do not believe that the tribunal is in any worse position than a court of law in getting on with the job quickly and that is the best course because if the tribunal endorsed the commissioner’s decision then that solves the matter.

[Lord Pannick]

Would the noble and learned Lord agree that if the tribunal dismisses the appeal it would then be open to the Government to take the matter to the Court of Appeal?

[Lord Mackay of Clashfern]

Certainly. The Court of Appeal has a very great record in dealing with matters quickly.