Crime and Courts Bill [HL]

Lord Pannick Excerpts

Tuesday 4th December 2012 Lords Chamber

Moved by

[Lord Pannick]

112: Before Clause 23, insert the following new Clause—
“Supreme Court security officers
(1) In Part 3 of the Constitutional Reform Act 2005 (the Supreme Court) after section 51 insert—
“Court security51A Security officers
(1) A Supreme Court security officer is a person who is—
(a) appointed by the President of the Supreme Court under section 49(1) or provided under a contract, and(b) designated by the President as a Supreme Court security officer.(2) The President may give directions as to—
(a) training courses to be completed by Supreme Court security officers;(b) conditions to be met before a person may be designated as a Supreme Court security officer.(3) For the purposes of sections 51B to 51E, a Supreme Court security officer who is not readily identifiable as such (whether by means of uniform or badge or otherwise) is not to be regarded as acting in the execution of the officer’s duty.
(4) In those sections “court building” means any building—
(a) where the business of the Supreme Court, or of the Judicial Committee of the Privy Council, is carried on, and(b) to which the public has access.51B Powers of search, exclusion, removal and restraint
(1) A Supreme Court security officer acting in the execution of the officer’s duty may search—
(a) any person who is in, or seeking to enter, a court building, and(b) any article in the possession of such a person.(2) Subsection (1) does not authorise a Supreme Court security officer to require a person to remove any of the person’s clothing other than a coat, jacket, headgear, gloves or footwear.
(3) A Supreme Court security officer acting in the execution of the officer’s duty may exclude or remove from a court building, or a part of a court building, any person who refuses—
(a) to permit a search under subsection (1), or(b) to surrender an article in the person’s possession when asked to do so under section 51C(1).(4) A Supreme Court security officer acting in the execution of the officer’s duty may—
(a) restrain any person who is in a court building, or(b) exclude or remove any person from a court building, or a part of a court building,if it is reasonably necessary to do so for one of the purposes given in subsection (5).(5) The purposes are—
(a) enabling business of the Supreme Court, or of the Judicial Committee of the Privy Council, to be carried on without interference or delay; (b) maintaining order;(c) securing the safety of any person in the court building.(6) A Supreme Court security officer acting in the execution of the officer’s duty may remove any person from a courtroom at the request of—
(a) a judge of the Supreme Court, or(b) a member of the Judicial Committee of the Privy Council.(7) The powers given by subsections (3), (4) and (6) include power to use reasonable force, where necessary.
51C Surrender, seizure and retention of knives and other articles
(1) If a Supreme Court security officer acting in the execution of the officer’s duty reasonably believes that an article in the possession of a person who is in, or seeking to enter, a court building ought to be surrendered on any of the grounds given in subsection (2), the officer must ask the person to surrender the article; and, if the person refuses to surrender the article, the officer may seize it.
(2) The grounds are that the article—
(a) may jeopardise the maintenance of order in the court building (or a part of it),(b) may put the safety of any person in the court building at risk, or(c) may be evidence of, or in relation to, an offence.(3) Subject to subsection (4), a Supreme Court security officer may retain an article which was—
(a) surrendered in response to a request under subsection (1), or(b) seized under that subsection,until the time when the person who surrendered it, or from whom it was seized, is leaving the court building.(4) If a Supreme Court security officer reasonably believes that the article may be evidence of, or in relation to, an offence, the officer may retain it until—
(a) the time when the person who surrendered it, or from whom it was seized, is leaving the court building, or(b) the end of the permitted period,whichever is the later.(5) In subsection (4) “the permitted period” means such period, not exceeding 24 hours from the time the article was surrendered or seized, as will enable the Supreme Court security officer to draw the article to the attention of a constable.
(6) Subsections (3) to (5) do not apply where a knife is—
(a) surrendered to a Supreme Court security officer in response to a request under subsection (1), or(b) seized by a Supreme Court security officer under that subsection,but, instead, the knife must be retained in accordance with regulations under section 51D(3) unless returned or disposed of in accordance with those regulations or regulations under section 51D(1).(7) If a Supreme Court security officer reasonably believes that a retained knife may be evidence of, or in relation to, an offence, nothing in subsection (6) prevents the officer retaining the knife for so long as necessary to enable the officer to draw it to the attention of a constable.
(8) In this section “knife” includes—
(a) a knife-blade, and(b) any other article which—(i) has a blade or is sharply pointed, and(ii) is made or adapted for use for causing injury to the person.51D Regulations about retention of knives and other articles
(1) The Lord Chancellor may by regulations make provision as to—
(a) the provision to persons—(i) by whom articles have been surrendered in response to a request under subsection (1) of section 51C, or(ii) from whom articles have been seized under that subsection,of written information about the powers of retention of Supreme Court security officers,(b) the keeping of records about articles which have been so surrendered or seized,(c) the period for which unclaimed articles have to be kept, and(d) the disposal of unclaimed articles at the end of that period.(2) In subsection (1) “unclaimed article” means an article—
(a) which has been retained under section 51C,(b) which a person is entitled to have returned,(c) which has not been returned, and(d) whose return has not been requested by a person entitled to it.(3) Without prejudice to the generality of subsection (1), the Lord Chancellor must by regulations make provision as to—
(a) the procedure to be followed when a knife is retained under section 51C;(b) the making of requests by eligible persons for the return of knives so retained;(c) the procedure to be followed when returning a knife pursuant to a request made in accordance with the regulations.(4) In subsection (3)—
“eligible person”, in relation to a knife retained under section 51C, means—
(a) the person who surrendered the knife under subsection (1) of section 51C or from whom the knife was seized under that subsection, or(b) any other person specified in regulations under subsection (3);“knife” has the same meaning as in section 51C.
51E Assaulting and obstructing Supreme Court security officers
(1) Any person who assaults a Supreme Court security officer acting in the execution of the officer’s duty commits an offence.
(2) A person guilty of an offence under subsection (1) is liable on summary conviction—
(a) to imprisonment for a term not exceeding 12 months, or(b) to a fine not exceeding level 5 on the standard scale, or(c) to both.(3) Subsection (2) applies—
(a) in England and Wales in relation to offences committed before the commencement of section 154(1) of the Criminal Justice Act 2003 (general limit on magistrates’ court’s power to impose imprisonment), and(b) in Northern Ireland,as if the reference to 12 months were a reference to 6 months.(4) A person who resists or wilfully obstructs a Supreme Court security officer acting in the execution of the officer’s duty commits an offence.
(5) A person guilty of an offence under subsection (4) is liable on summary conviction to a fine not exceeding level 3 on the standard scale.”
(2) In section 48(3)(a) of the Constitutional Reform Act 2005 (delegation of President’s functions to chief executive) after “under section 49(1)” insert “or 51A(1)(a) or (b)”.”

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[Lord Pannick]

My Lords, Amendment 112 is in the names of the noble and learned Lord, Lord Phillips of Worth Matravers, and myself. The noble and learned Lord is abroad today and sends his apologies to the House.

The amendment seeks to give security officers at the United Kingdom Supreme Court the same powers as those available to court security officers in the other courts of England and Wales under Sections 52 to 57 of the Courts Act 2003. Those sections give court security officers statutory powers to search people, to exclude or remove people from court buildings or to restrain them in court buildings, and to seize, retain and dispose of offensive articles in court buildings. The provisions also create a criminal offence of assaulting or obstructing a court security officer.

There is at present a gap in the law because the Courts Act 2003 confers these powers only on staff appointed and then designated as security officers by the Lord Chancellor in relation to those courts where he is responsible for running an efficient and effective service. In the case of the Supreme Court, the Constitutional Reform Act 2005 vests in the president of the court the power to appoint staff, and the chief executive is under a duty to run an efficient and effective service. The powers conferred by the Courts Act are therefore not at present available to Supreme Court security officers.

Although, of course, Supreme Court security officers would hope never to have to use such powers, it is necessary for them, and for the judges, lawyers and members of the public they are protecting, to know that they have these vital powers at their disposal as security officers should the need arise. Unhappily, as we all know, there have been cases of such powers being needed in courts around the country.

I am sorry that your Lordships do not today have the advantage of hearing from the noble and learned Lord, Lord Phillips, the immediate past president of the Supreme Court, but I hope I have said enough to persuade noble Lords, and, in particular, the Minister that this amendment is necessary. I beg to move.

[Lord Goldsmith]

My Lords, I support this amendment. I understand that the Government may be in a position to say something favourable about it, so there is no need to say anything further, other than that the amendment may anticipate a little bit the debate that may take place on the next amendment about the importance of recognising the Supreme Court as an independent court no longer dependent on the Lord Chancellor.

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Moved by

[Lord Pannick]

112A: Before Clause 23, insert the following new Clause—
“Chief Executive of the Supreme Court of the United Kingdom
(1) The Constitutional Reform Act 2005 is amended as follows.
(2) For section 48(2) (chief executive), substitute—
“(2) The President of the Supreme Court shall appoint the Chief Executive in accordance with the arrangements for the time being in force for the selection of persons to be employed in the civil service of the State.”
(3) In section 49(2) (officers and staff), omit the words “with the agreement of the Lord Chancellor.””

[Lord Pannick]

My Lords, again, this amendment is tabled in the names of the noble and learned Lord, Lord Phillips of Worth Matravers, and myself. It raises two issues of fundamental importance concerning the independent status of the Supreme Court—that is, its independence from the Executive. The first issue is that it would make the president of the Supreme Court and not the Lord Chancellor responsible for appointing the chief executive of the Supreme Court. The current position is that Section 48(2) of the Constitutional Reform Act 2005 provides that:

“The Lord Chancellor must appoint the chief executive, after consulting the President of the Court”.

The process for the appointment of the first and current chief executive, Jenny Rowe, involved an ad-hoc commission chaired by a Civil Service commissioner and which included three of the then Law Lords along with a retired senior civil servant as the external member. The Ministry of Justice provided the commission with secretarial support and a firm of head-hunters was used to identify potential candidates. The amendment does not envisage any change in the substance of that process. It worked well and produced an appointee who is widely recognised as deserving much of the credit for the successful birth and early years of our Supreme Court. However, in principle this is an appointment which should be made by the president of the Supreme Court and not by the Lord Chancellor.

The power to appoint all the other officers and staff of the Supreme Court is already invested in the president of the court by Section 49(1) of the 2005 Act, even if, in practice, he delegates the exercise of this power to the chief executive. Section 48(4) of the 2005 Act says that the chief executive has to act under the direction of the president, so it is an anomaly that the power to appoint the chief executive is not also a matter for the president.

There is also an important question of principle: of course, the Supreme Court acts independently of the Executive, but it must also be seen to do so. Indeed, that was the major reason why the Supreme Court was created by the 2005 Act and why the Law Lords left this place. For the president of the Supreme Court to have the responsibility for appointing the chief executive would emphasise to all concerned that this is an independent institution.

The noble and learned Lord, Lord Phillips, has asked me to tell your Lordships that in his experience of the first three years of operation of the Supreme Court, the existing appointment provision led more than once to confusion in parts of the government machine that the chief executive should in some sense be acting at the behest of Ministers. The amendment is designed to put it beyond doubt that this is not the case. If the appointment power were to be vested in the president, there then arises the question why the Lord Chancellor should be consulted at all on this matter, particularly given that the chief executive is and would continue to be appointed in accordance with civil service recruitment rules, and the process is and would continue to be presided over by a Civil Service commissioner.

The Lord Chancellor is, of course, no longer a judge, and any role he might have in the process could only now be as a politician and government Minister.

I can tell your Lordships that the justices of the Supreme Court, including the noble and learned Lord, Lord Neuberger, the new president, simply do not understand how it can be constitutionally appropriate for the Lord Chancellor to exercise any such role. So the amendment would therefore confer responsibility on the president of the Supreme Court for appointment of the chief executive of that court, and would remove the role of the Lord Chancellor.

A second issue is raised by this amendment, arising from the terms of Section 49(2) of the Constitutional Reform Act 2005, which provides that the chief executive of the Supreme Court requires the consent of the Lord Chancellor when she decides on the number of officers and staff of the court, and the terms on which officers and staff are to be appointed. The noble and learned lord, Lord Phillips, has said publicly that he considers it critical to the court’s independence, and the perception of its independence, that the chief executive owes her primary loyalty to the president of the court and not to a Minister. The justices of the Supreme Court believe it would be preferable for the statutory provisions to be changed to make it even clearer that the chief executive has a direct accountability to Parliament for the proper use of the court’s resources and that she acts entirely independently from ministerial direction.

This is not just a matter of principle, important though the principle of independence is. The practical reality is that it makes no sense whatever for the chief executive to have to agree with the Lord Chancellor, which means of course his officials, on the number of officers and staff of the court. The justices of the Supreme Court are clear that neither the Lord Chancellor nor his officials can be in any position to second guess decisions that the chief executive makes in consultation with, and, if necessary—although the noble and learned Lord, Lord Phillips, assures me that it never came to that during his time—at the direction of the president, about the staffing requirements of the court.

In any event, the chief executive already has two separate disciplines upon her in making those staffing decisions—the budget that Parliament has decided to make available to the court, and the requirement on her as chief executive under Section 51(1) of the Act that the chief executive must ensure that the court’s resources,

“are used to provide an efficient and effective system to support the Court in carrying on its business”.

The amendment would therefore remove the need for the chief executive to seek the agreement of the Lord Chancellor to these matters, to make even clearer her direct accountability to the president on the one hand and to Parliament, if needs be via the Public Accounts Committee, on the other. I can tell your Lordships that the current president of the Supreme Court, the noble and learned lord, Lord Neuberger, supports this amendment on both of the matters that it covers: removal of the role of the Lord Chancellor in the appointment of the chief executive and in relation to staffing issues at the Supreme Court.

I understand that discussions are continuing on these important issues. I hope that the Minister will agree to consider these important issues further between now and Third Reading so that we can, if necessary, return to the matter then. I beg to move.

[Lord Mayhew of Twysden]

It seems almost trite to make the point that wherever you have a chain of command within an organisation, that chain of command should be clear and not muddled or uncertain. If you find that those defects are present, you are bound to get trouble sooner or later—and it will probably be sooner. In the case of the United Kingdom Supreme Court, it seems to me to be very important that there should be no such blemish in its constitutional arrangements, for the very reason that has been explained so powerfully to us this evening, and which the noble and learned Lord, Lord Phillips—with the support of all his brethren—would have been adopting, we understand, were he present. The whole point of the setting up of the Supreme Court is that it should be operationally squeaky clean of any contamination by the Executive. That was the point of moving it away from the Judicial Committee of your Lordships’ House, something that many of us regretted. If that is to be the case, however, then it is particularly important that there should be no capability of misunderstanding and resulting conflict—let alone litigation—arising out of an assertion that there is a dual chain of command here.

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[Lord Ahmad of Wimbledon]

My Lords, I am minded of the fact that during the dinner break one of my noble friends remarked how cold the House had become given that we are in the winter months. I hope that some of my words may warm the temperature spiritually if not physically. Before I deal with the substance of what has been laid in front of us, I assure the House that Her Majesty’s Government fully and utterly respect the independence of the judiciary, and that there is no question of our duty to uphold that independence.

As the noble Lord, Lord Pannick, has alluded to, and as many noble Lords will recall, this House considered what are now Sections 48 to 50 of the Constitutional Reform Act 2005. Then, as now, the concern was how the court’s independence might be maintained following the Appellate Committee of the House of Lords transition into the UK Supreme Court. Several noble Lords have already made strong arguments as regards the current situation. I am not here to revisit arguments that have been raised historically. However, the Government retain a fundamental concern with regard to accountability and proper lines of accountability which need to be established so that the elected Government are responsible for the proper fiscal and managerial operation of the court.

The noble Lord, Lord Pannick, my noble and learned friend Lord Mayhew and the noble and learned Lord, Lord Goldsmith, who was the Attorney-General, made very specific points about the challenges faced by the Lord Chancellor in appointing the chief executive, and the fact that a chief executive appointed by the Lord Chancellor has two masters in effect—one judicial and the other ministerial—and, as was argued, this breaches the principle of the separation of the Executive and the judiciary.

As I have said, the Government will listen to the arguments and have an open mind on the issue. As the noble Lord, Lord Pannick, alluded to, we are indeed engaging with the Supreme Court in order to consider the impact of this arrangement and of the amendment as tabled, and to resolve any concerns it may have about its independence and how this might best be preserved. However, it is our considered view that this constitutional change should not be rushed and that the Government and the Supreme Court should continue to discuss and consider together how any reform may be taken forward.

Reference has been made to Third Reading. I cannot at this time give an absolute concrete assurance from the Despatch Box, which I am sure noble Lords will appreciate, as to whether we will have concluded our consultation with the president of the Supreme Court, but these discussions are of course ongoing.

In lieu of these comments, I hope that the noble Lord, Lord Pannick, will be content to withdraw Amendment 112A on the understanding that this is a live issue which is being looked at, and which has been raised directly with the president of the court.

[Lord Pannick]

I am very grateful to the Minister. Of course, he gives no absolute concrete assurance, but I take from that that he gives a more qualified assurance that he will at least do his best to ensure that these important matters can be brought to a conclusion in time for Third Reading. It may be appropriate to seek to bring these matters back at that time, particularly as I do not understand the Minister to have identified any factor that can explain how it can be compatible with respect for the independence of the judiciary—which he says, and which of course I accept, the Government fully uphold—to maintain the constitutional provisions that this amendment seeks to remove.

The only factor to which the Minister referred that could come anywhere near providing any possible explanation was accountability. However, the whole point about the independence of the Supreme Court is that it is not accountable to Ministers; it is accountable to Parliament, of course, and it is answerable to Parliament in the sense that Parliament can override any decisions that the Supreme Court makes, and it is Parliament which decides on the resources that are provided to the Supreme Court in order that it can perform its function.

We have not heard any possible explanation of how these constitutional arrangements can be maintained consistently with the independence of the judiciary. I thank all noble Lords who have contributed to this debate. I will say to the Minister that I am sure that when and if it is necessary to bring this matter back before the House at Third Reading—I hope at an earlier time of day—there will be rather more noble Lords, and noble and learned Lords, who I am sure would wish to express similar views to those that the House has heard tonight. However, for now, I beg leave to withdraw this amendment.

Amendment 112A withdrawn.