European Union (Withdrawal Agreement) Bill

Debate between Lord Mackay of Clashfern and Lord Woolf

Committee: 2nd sitting (Hansard) & Committee stage & Committee: 2nd sitting (Hansard): House of Lords
Wednesday 15th January 2020 Lords Chamber

[Lord Woolf (CB)]

My Lords, if the noble and learned Lord, Lord Mackay, would like to speak first, I would welcome that.

[Lord Mackay of Clashfern (Con)]

I do not particularly wish to speak first, but in view of the noble and learned Lord’s invitation, I will make my brief contribution. Unlike the noble Lord, Lord Anderson of Ipswich, I have a fair amount of experience in this area of European law and the modification of existing judgments—I sat in the House of Lords when it set aside a previous judgment. It is extremely important that we consider the principle that has to lie behind this. The present situation is that EU retained law has been made part of the law of the United Kingdom unless and until it is modified by Parliament in due course. When passing the previous withdrawal Act, we placed a number of restrictions on that power for Ministers in various areas relating to human rights and so on.

From what I read in the newspapers as these things developed, my impression was that the Government were anxious that the power to modify or depart from EU judgments would be better given to a wider set of courts than the Supreme Court, and the High Court of Justiciary in Scotland on criminal matters, as had been done in the withdrawal Act. I can see that it may be part of overall policy that it should be rather wider than the present law would permit. However, it is important that whatever method is used, it is one that will prevail across the whole of the United Kingdom. Therefore, to give the power to do this to, for example, the Inner House of the Court of Session, would have the effect that it would apply in Scotland but not in England and Wales directly, nor in Northern Ireland. There would be a degree of difficulty in that. That is why, in my view, this power should be in the Supreme Court. As we all know, when the Supreme Court gives a judgment, it is a judgment for the whole of the United Kingdom. It is important to emphasise that the name of the court is the Supreme Court of the United Kingdom.

If it is desired to give the power to a wider section of the courts, the way to do so is to specify which courts they are. The example given by my noble and learned friend is one possibility, but it is for the Government to decide how wide they wish to be. However, it is important that the courts should not have the power to ultimately decide; it should be required to refer the matter to the Supreme Court. The Supreme Court can modify the burden that that would involve by a lead process, leaving it free to dismiss a case where it was thought there was nothing in it. One possible line is for the lower court to give a judgment which might ultimately help the Supreme Court, but I do not know whether that would always be necessary. The important thing is that any court that has this power would have it only as a way of referring the matter to the Supreme Court.

I was thinking of putting forward an amendment to this effect, but I thought it probably better to leave it until we have had a chance to discuss it. I have reached the conclusion that, as a practical matter, if we in this House can persuade the Government to change, it is likely to be effective; whereas if we do not persuade the Government to change, it may not be effective, with results that we may not altogether approve of. My main effort in this is to try to persuade the Government that a system along the lines I have proposed would be perfectly acceptable and workable, and would embrace all the courts that it needs to embrace.

[Lord Woolf]

My Lords, I am grateful to the noble and learned Lord for preceding me because he is in a unique position to give advice to the House on this issue. I only intervene to add to what has already been said because I want to stress the importance of the issue. There is an old saying that hard cases can make bad law. This may be a hard situation for the Government but they are in danger of making very bad law indeed. Why they are in danger and why they would be wise to think very carefully again before they ask for this to be implemented is apparent from the careful steps that were taken back in 2005 when I was still one of the chief justices—to whom the noble and learned Lord, Lord Brown, referred—who are present before your Lordships.

At that time, changes were being made which went to the root of the constitution, and the courts were concerned that they could be severely damaging to our unwritten constitution. As a consequence, the then Lord Chancellor and I—then Lord Chief Justice—came together to make a concordat to try to deal with those difficulties. It was recognised that one of the underlying principles of our common law and constitution was the separation of powers, and what was being done in 2005—which affected the position of the Lord Chancellor in relation to the courts—was trespassing on the principles that had existed hitherto. The noble and learned Lord, Lord Mackay, was well aware of these principles when he was Lord Chancellor and a member of the Government. The role that the Lord Chancellor played at that time was to ensure that the important balance—which explained how we managed to continue without a written constitution—succeeded, which it did remarkably well.

As I see the situation, what my noble and learned friends and my noble friend Lord Anderson have been saying to your Lordships is that this proposes a change in our law that would undermine the proper observation of the rule of law in a most critical way. I suggest that for this House to allow that to happen without protesting in the clearest way would be very undesirable indeed. I feel confident that if the Government look at this matter again and bear in mind the speeches made to this House today, they will see how it can be dealt with. However important Brexit is, it must not be allowed to create a precedent that could be followed hereafter, as has been suggested, which would damage our situation.

I hope we will always be able to continue in this country without a written constitution. However, if we let what is proposed go through with saying it should be amended, we will create a situation where that will not be possible. We should pause before doing so.

Courts and Tribunals (Online Procedure) Bill [HL]

Debate between Lord Mackay of Clashfern and Lord Woolf

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

[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.

[Lord Woolf]

My Lords, I hope it will not be inappropriate, in view of the elegant and powerful speeches already made, for me to say these few words. I was a party to the concordat, the importance of which was that it established the new relationship between the arms of government, to which the noble and learned Lord, Lord Mackay, referred, until the Constitutional Reform Act 2005. I hope it will suffice to say that everything said in support of this amendment seems four-square with what was said in the concordat, indicating when the consent of the Lord Chancellor or that of the Lord Chief Justice would be required. These were heavy burdens that my successors as Lord Chief Justice had to carry in consequence of, first, the concordat and then the Constitutional Reform Act. It would be so easy to allow legislation of this sort to undermine the spirit of the concordat and the provisions of that Act by creating a precedent, which could be pointed to subsequently, indicating that the clear distinctions of relevant situations where the consent of the Lord Chief Justice should be required are not as they were previously understood to be.

Criminal Justice and Courts Bill

Debate between Lord Mackay of Clashfern and Lord Woolf

Monday 21st July 2014 Lords Chamber

[Lord Woolf (CB)]

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

[Lord Mackay of Clashfern]

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

[Lord Woolf]

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

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

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

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

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

Immigration Bill

Debate between Lord Mackay of Clashfern and Lord Woolf

Tuesday 1st April 2014 Lords Chamber

[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.

[Lord Woolf (CB)]

My Lords, this is a matter in which I, like the noble and learned Lord, Lord Brown, have had considerable practical experience, first as a Treasury junior, who for years advised and acted for the Government on these problems that arise in immigration matters, which can be very frustrating indeed.

I have been delighted at the steps that were taken, with the encouragement of the judiciary, to transfer matters which previously went before the courts on judicial review to tribunals. We have to recognise that there are situations within the court system where tribunals are better equipped to deal with matters than the courts are, because the tribunals’ knowledge and experience is so considerable. Because of that, this process has continued. I am happy to say that the noble and learned Lord, Lord Mackay, does himself an injustice when he suggests that what he sought to do has not produced positive results. It has, and I can say to the House with confidence that if we had not built up the tribunal system in the way it has been built up, from a practical point of view judicial review would be an area of great difficulty in the courts today.

It is therefore very important that we do not do something that is contrary to principle and which reflects adversely on the tribunal system. Of course, that was not the intention of those who were responsible for drafting the amendment now under consideration. However, the transfer from the tribunal that has jurisdiction to deal with matters of this sort, for the sort of reasons that have been put forward, to one of the parties of the proceedings, is just totally and utterly contrary to principle and it should be and can be rectified in a way that is acceptable.

The noble Baroness, Lady Berridge, was very modest about her amendment; she said that it may not be perfect, and she may be right about that, but this matter certainly warrants consideration. It would be a very undesirable precedent indeed to create a situation where one of the parties to the proceedings has in effect to give its consent to the other party doing something that justice may require. In addition, the suggestion that something should go back to the beginning is just out of accord with what is now the practice in the courts. It is true that the real decision-making body is the Minister and not the courts, but for years, in my experience, the courts, when a new point has arisen, have taken the view that it is more practical and more in accord with common sense for the tribunal that is dealing with the matter to continue to deal with the new matter, if it thinks that it is right to do so, rather than to send it back to the Secretary of State, who is technically the decision-making body under the legislation.

With respect to the noble and learned Lord, Lord Mackay, to whom I bow in these matters, because he has been such a benign influence in the development of our court system, on this occasion the difference that he has with the noble and learned Lord, Lord Brown, and myself is misplaced and is not in accord with the practice adopted by the courts today, when a matter comes before them that should technically go back and discretion is exercised by the court to save everybody’s time and money by dealing with it themselves. So I urge the Minister to have another look at this matter, consult on it and come back at Third Reading.

Justice and Security Bill [HL]

Debate between Lord Mackay of Clashfern and Lord Woolf

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.

Legal Aid, Sentencing and Punishment of Offenders Bill

Debate between Lord Mackay of Clashfern and Lord Woolf

Wednesday 25th April 2012 Lords Chamber

[Lord Mackay of Clashfern]

Perhaps it is worth pointing out that when this amendment was called, the Speaker of the House of Commons intimated that financial privilege was involved in the amendment. The reason for that is not explained as part of House of Commons procedure. Your Lordships know that I have had some difficulty in the past with references to this feature in relation to other Bills. The fact is that it is not for the Government, at the beginning, to mention this point. It is taken by the Speaker on behalf of Parliament and on behalf of the House of Commons. I have no doubt that, as Speaker Martin told us the last time, he does so on advice from the Clerk of the House of Commons. The Government then proceed from there. They could, if they wished, ask the House of Commons to support the amendment, notwithstanding that it involved financial privilege, but the basic ruling that financial privilege is involved seems to come from the Clerks of the House of Commons. I confess that their way of dealing with the matter is not something that I fully understand.

[Lord Woolf]

Before the noble and learned Lord sits down, perhaps he could assist me with regard to the question of financial privilege. In view of what he just said about the Government’s ability to invite the House of Commons to consider the amendment notwithstanding the point of financial privilege, does he accept that the Government could also have taken the action of saying, “We do not accept the amendment for good reasons”—which would be identified—“and, in those circumstances, we ask the House to indicate, in view of what has been said in this place, what its view is of those matters”? Financial privilege has no substance in fact. As all lawyers know, if the facts are totally inconsistent with the conclusion that is reached, that is wrong as a matter of law. An appellate court will always interfere with a fact-finding tribunal’s decision if it is wrong in law in that sense.

[Lord Mackay of Clashfern]

My Lords, if that is directed at me—

[Lord Woolf]

It is. Perhaps I may make that clear to the noble and learned Lord, whose views I respect so much. I therefore request him to assist.

[Lord Mackay of Clashfern]

My Lords, the practice of the House of Commons, as I understand it, is that when an amendment is called that involves financial privilege—in the opinion of the Speaker acting on the advice of the Clerks—this is intimated; and my understanding is that the Government would not be able to challenge that at all, just as we, as a matter of practice, do not challenge it either, although sometimes there have been occasions when some have felt there was a possible reason for challenge. However, as a matter of practice, we do not do that. It is open to the Government—notwithstanding the fact that financial privilege is involved—to invite the House of Commons to agree to an amendment that involves financial privilege. Then the Speaker has to certify in the Journal that a matter involving financial privilege has been passed by the House of Commons. The reason for that is that the House of Commons requires, generally speaking, a money resolution in respect of any expenditure involved in a Bill; and if a Bill involves expenditure, a money resolution has to be passed at some stage during the course of the Bill.

In this procedure, there is no room for a money resolution as such, because that happens earlier, but the signification made by the Speaker—in that situation where the House of Commons has decided, notwithstanding that financial privilege is involved, to agree to the amendment, in whole or in part—goes into the Journal in order to replace the need for a money resolution, and it of course authorises the Treasury to disperse money on the basis of that resolution of Parliament. That has nothing to do with the question of whether or not the amendment should be agreed, but, so far as concerns this House, if the resolution is based on financial privilege, the understanding has been—notwithstanding how difficult it might be on occasion for some of us to understand exactly how it arises—that we do not dispute that proposition.