Parliamentary Voting System and Constituencies Bill

Lord Pannick Excerpts

Tuesday 8th February 2011 Lords Chamber

[Lord Lloyd of Berwick]

Experience shows that where two or three lawyers are gathered together one is sure to disagree. I entirely agree with every word that has fallen from the noble Lord, Lord Marks, which I am afraid inevitably means that, with great respect, I venture to disagree with the noble and learned Lord, Lord Woolf. He suggested that the advantage of his proposals was flexibility. I suggest that the disadvantage is an absence of simplicity. I can see no possible advantage in having a double decision process in a matter such as this. On the face of it, one would think it must increase the likelihood of an application for judicial review. In any event, the question should not be decided simply by that—it was a strong argument at one stage. But now we have before us not the original amendment proposed by the Convenor, the noble Baroness, Lady D’Souza, which in its way was a very good amendment, but an amendment from the Government containing everything that was in that amendment, which, to my mind, is essential. A public inquiry as such is not essential. A public hearing is, and that is what is promised.

[Lord Pannick]

My Lords, I share the Government’s objective here, which is to make this process more efficient. At the moment it is not efficient. It is too slow, too cumbersome and there are too many lawyers involved. I therefore share the Government’s objective. However, I also share the concerns so eloquently expressed by the noble and learned Lord, Lord Woolf. The Government will abolish any effective inquiry and will introduce a procedure which will ensure that the decision-maker—and here I say to the noble Lord, Lord Marks, and the noble and learned Lord, Lord Lloyd of Berwick, that there is only one decision-maker on the opposition amendment: the Boundary Commission—does not hear the oral representations that have been made. The person who does hear those oral representations has no role in communicating to the decision-maker any advice on what he or she thinks of what he or she has just heard. It is absolutely inevitable that the introduction of such a procedure will exacerbate rather than diminish the sense of grievance that has led people to make representations in the first place.

[Lord Martin of Springburn]

When the noble Lord mentions the Government’s proposals, is it the case that those proposals will not allow cross-examination at the inquiry?

[Lord Pannick]

As I understand it, that is the position. The opposition amendments will leave that to the discretion of the person who is hearing the representations, which seems to me right and proper. The proposal from the Government at the moment is a sort of legal interruptus in which the person hearing the material will end the process in a profoundly unsatisfactory way—unsatisfactory to the person who made the representations—because nothing arises from that other than communication to the decision-maker who has not actually heard what has been going on.

[Lord Thomas of Gresford]

Does the noble Lord not agree that the person to whom he refers, the person who would be aggrieved, would prefer that their contribution goes directly to the decision-maker and is not filtered in an intermediate stage by the chairman, who may have all sorts of views of his own and may colour the way in which that person wants his representations to be heard?

[Lord Pannick]

I would say to the noble Lord, Lord Thomas of Gresford, that in my experience it is most unusual indeed to arrange for oral representations, and let us not forget that this is what the Government are rightly proposing, in which the person hearing them then has no role, not even an advisory one. It is my experience in all areas of the law, and I hope that it is the experience of the noble Lord as well, that if you give people a fair hearing and then a reasoned conclusion at the end of it, even if it is only advisory in nature, they are normally—not always—prepared to accept the result, however disappointing it may be. The Government’s proposals, by contrast, will inevitably raise expectations which they cannot satisfy and which will inevitably frustrate and anger people, who will inevitably feel that this is a charade. On a matter as sensitive and important as constituency boundaries, it is vital for this House to maintain some genuine process of inquiry leading to a result, even if it is only advisory. Inquiries have contributed substantially to the confidence that all sections of the public now have in the process of boundary review.

--- Later in debate ---

[Lord Thomas of Gresford]

Would the noble Lord not agree that if the Boundary Commission failed to follow the recommendation of the first decision-maker— which may be provisional—that would inevitably trigger judicial review? That is the problem when you have double decision-making.

[Lord Pannick]

I am sorry, but I simply do not accept that. The noble Lord is very familiar with the general process of planning inquiries, when advice is regularly given that is not followed by the decision-maker. The courts are sophisticated enough to understand in this sensitive area that advice is not necessarily followed. The Boundary Commission is the decision-maker. If I were to go to the court tomorrow and rely on advice that the Boundary Commission had rejected, and if that were the basis of my judicial review, the case would not last very long, as I think the noble Lord knows.

[Lord Thomas of Gresford]

My Lords—

[Lord Pannick]

I have taken a number of interventions. This is Report, and I hope that the House will agree with me that it is appropriate that we proceed with this matter.

Even at this late stage, will the Minister and the Government please think again? They can make this process more efficient, but they should not abolish the inquiry, which is what they are in effect doing, as it serves a very valuable purpose.

[Lord Faulks]

My Lords, the noble and learned Lord, Lord Wallace of Tankerness, described this proposal as being culturally different from what had gone before. He is right in one sense, but I respectfully suggest that it is very much in line with the way in which a lot of procedures are developing. We are not obsessed by prolonged oral hearings with laborious cross-examination, dominated by lawyers—and here I must declare an interest as a member of that much maligned species. Rather, it is a sensible way of dealing with matters so that there can be full written representations followed by a public hearing. I think that the expression “public hearing” is an attractive one, as opposed to a “public inquiry”, which sounds rather murky and obscure from the point of view of the public, for whose benefit it is supposed to be.

I hope very much that such a hearing will be “lawyer light”. There is no need for the chair to be a lawyer; it might be better if they are not. What we require from the chair is someone who is capable of organising a hearing at which everyone who has a reasonable interest in a matter can have their interest properly heard and recorded. I accept the observation by the noble Lord, Lord Rooker, that there is no need to stick to strict court hours, and one hopes that the chair will allow a longer period as necessary.

We are talking about, I hope, an informal but thorough hearing. It allows what, as I understood it, the Opposition required—in effect, a day in court, an opportunity for people to say that they have said something as well as written something. This seems to be an extremely practical and fair solution, and I will support it.

[Lord Tyler]

My Lords, I am encouraged by the noble Lord, Lord Rooker, to make a brief intervention, because I am not a lawyer. Until he spoke, everyone was speaking with huge legal experience.

I have a practical question that your Lordships’ House needs to give some attention to. It seems to me that the danger is not successful judicial review—or any sort of legal challenge—rather, it is that all over the country the opportunity will be taken to try and delay the process, for reasons that we all understand, so that the changes will not be in place ready for the 2015 election. I have appeared at inquiries and before commissions—unpaid, of course, as I was not a lawyer. I was reminded of this by the noble Lord, Lord Rooker. Imagine the circumstances when a number of MPs who see their seats being changed do not necessarily think that they could be successful at judicial review but think it is worth trying to delay the process. There could be 400 applications for judicial review. That seems to be the danger.

I understand what the noble Lord, Lord Pannick, is saying. I understand what other lawyers are saying. My fear is simply that this process will be undermined not by successful judicial review but by attempts to try and delay the process. If that is the game that we have to foresee, then your Lordships’ House will be blamed for delaying an important process that will give equality of votes to a lot of our fellow citizens.

[Lord Pannick]

Does the noble Lord understand that no judicial review may be brought without the leave of the court? Does he understand that the courts are highly experienced in hearing speedily—by which I mean within days if necessary or within weeks—any case that is urgent, as these cases, if they were brought, would clearly be?

[Lord Campbell of Alloway]

Very briefly, my Lords, I got involved in this affair with a lot of other members of the Bar and I have to say where I stand. I totally support the legal analysis of the noble Lord, Lord Pannick, who is totally correct. Of course, it puts me in a very odd position because I am a Conservative and part of the coalition, but I cannot help that. I know that what the noble Lord said is right.