Counter-Terrorism and Border Security Bill

Lord Pannick Excerpts

Committee: 4th sitting (Hansard): House of Lords
Wednesday 14th November 2018 Lords Chamber

[Lord Pannick (CB)]

My Lords, I too am concerned about the subject, and I agree with the comments that have been made. The right to confidential legal advice is fundamental to the rule of law. The right to consult a solicitor is simply pointless if it is not to take place in private—a client will not speak freely in those circumstances. Therefore, any restrictions must be necessary and proportionate. I agree with the noble Lord, Lord Marks, that it is vital to look for more proportionate means of addressing the Government’s legitimate concerns. I also agree with him that a way forward is to adopt the approach that the client ought to be able to speak freely to any solicitor unless there are reasonable grounds to believe that that solicitor will not act in accordance with his or her professional obligations. Regrettably, there have been cases of such solicitors, although they have been very few, and it seems to me entirely disproportionate to prevent access to confidential legal advice because of the misbehaviour of a few rogue solicitors. We can deal with rogue solicitors in other ways.

--- Later in debate ---

[Lord Pannick]

I share the concern about the breadth of the definition of “hostile act” as covering acts which threaten “national security” or,

“the economic well-being of the United Kingdom”.

These concepts are vague to the point of absurdity. No doubt some people would say that the Prime Minister’s Brexit deal threatens the economic well-being of the United Kingdom. I would not share that view, but some people might. Because of the vagueness of these concepts, they would inevitably confer extensive discretionary powers, which are inimical to the rule of law. Because they are so vague, they would inevitably also inhibit perfectly lawful activities.

[Lord Paddick]

My Lords, I do not want to add to the comments that I made in the debate on whether Clause 21 and Schedule 3 should stand part of the Bill, which echoed the comments of other noble, and noble and learned, Lords.

As the noble Lord, Lord Anderson of Ipswich, has said, regulations that we recently considered that were made under the Investigatory Powers Act radically redefined “serious crime” to mean offences which carry a minimum sentence of 12 months’ imprisonment but also all offences involving communication or the invasion of privacy. The Government are quite capable of redefining—and in fact have redefined—serious crime to fit more precisely the powers referred to in different pieces of legislation, even regulations made under a piece of legislation in which the definition of serious crime is different. So I do not agree with the noble Baroness, Lady Manningham-Buller, who mentioned earlier that it would not capture Official Secrets Act offences, because the Government, as has been suggested, can change, have changed and could change the definition of serious crime in relation to Schedule 3 powers.

Counter-Terrorism and Border Security Bill

Lord Pannick Excerpts

Committee: 3rd sitting (Hansard): House of Lords
Monday 12th November 2018 Lords Chamber

[Lord Carlile of Berriew]

My Lords, I too support the amendment moved by my noble friend Lord Anderson. There is no known system at the moment for reviewing the proscription list. The Peasants’ Revolt would still be proscribed under the current absence of a system, and that is just unacceptable. I could live with it if the Minister were to make a commitment from the Dispatch Box to introduce a system of review of the proscription list. Let us not forget that if a deproscription is found to be mistaken, there can be a reproscription of that organisation in any event, so almost nothing is lost by what is proposed.

[Lord Pannick]

My Lords, I, too, support the amendment. I find it shocking that the Home Office should be continuing the proscription of organisations which it recognises do not satisfy the statutory criteria. I have only one suggestion to those who tabled the amendment for their consideration for Report. In new paragraph (d), should it not require the Minister to publish not simply each such decision but the basic reasons for such a decision? That would add a further level of accountability and discipline of the Secretary of State in this context.

[Lord Brown of Eaton-under-Heywood (CB)]

My Lords, I, too, support the amendment—looking around, it would be almost eccentric not to. The reasons already given are, I suggest, compelling, but in addition we had a debate in Committee on Clause 1, which is intimately linked with this issue, as the noble Lord, Lord Anderson, made plain at the time. Floating around at the time was Amendment 7 to Clause 1 which provided that it would not be an offence to support the deproscription of an organisation—on the face of it an altogether more compelling argument if the present amendment of the noble Lord, Lord Anderson, is accepted. If one has a defence to Clause 1 supporting deproscription, think what damage—some of us made this point in Committee—that does to the basic objective, which is that you should not be expressing an opinion supporting such an organisation, something which would inevitably be linked with any attempt to have it deproscribed. This is very important also for Clause 1 purposes.

--- Later in debate ---

[Baroness Williams of Trafford]

My Lords, it is never nice to stand up and feel defeated on a matter. I shall outline the various points on proscription. As noble Lords will know, the effect of proscription is that the organisation is added to Schedule 2 to the 2000 Act, and that a number of offences bite in relation to membership and support for it. In practice, the Home Secretary is responsible for proscriptions relating to international and domestic terrorist groups, and the Northern Ireland Secretary for Northern Ireland-related terrorist groups.

Under Section 4 of the 2000 Act, either a proscribed organisation itself, or a person affected by its proscription, may apply to the Secretary of State for it to be deproscribed. Section 5 establishes the Proscribed Organisations Appeal Commission to consider appeals against refusal of an application under Section 4, and there is a route of appeal on a point of law from the commission to the Court of Appeal.

Amendment 59 would place a duty on the Secretary of State to review every proscribed organisation on an annual basis, to determine whether it continues to meet the legal test for proscription. The Secretary of State would, further, be required to decide whether each organisation should remain proscribed or should be deproscribed, and to publish that decision. As the noble Lord, Lord Anderson, has explained, his amendment reflects recommendations he made in his former role as Independent Reviewer of Terrorism Legislation—a role which he performed with great eminence and authority, and in which he made a great contribution. I do not think that he will agree with me just because I have said that.

The noble Lord will, of course, be familiar with the Government’s long-standing policy on removing terrorist organisations from Schedule 2 to the 2000 Act, from the responses of successive Home Secretaries to his reports as independent reviewer. However, for the wider benefit of your Lordships, I will, if I may, spend a short while setting this out. The Government continue to exercise the proscription power in a proportionate manner, in accordance with the law. We recognise that proscription interferes with individuals’ rights—in particular the rights protected by Articles 10 and 11 of the European Convention on Human Rights: freedom of expression and freedom of association. That is why the power is exercised only where necessary.

We should recall that organisations are proscribed for a reason—because they are concerned in terrorism. Our first priority is to protect the public and support our international partners in the fight against terrorism, and the power to disrupt a proscribed organisation by preventing it from operating or gaining support in the UK is an important one in this struggle. Where the Home Secretary has decided on advice, including from operational partners, that this test is met, with the serious consequences that flow from that, we consider it appropriate to continue to take a cautious approach when considering removing terrorist groups from the list.

While we take extremely seriously our responsibility to protect the public and to prevent terrorist groups from operating in the UK, it is not the Government’s position that once a group has been proscribed that should simply be indefinite, without the prospect of ever being removed from the list. To this end, Parliament provided a clear route for any proscribed organisation, or any person affected by an organisation’s proscription, to submit an application to the Home Secretary for the organisation to be deproscribed. Indeed, three groups have been deproscribed following such applications.

This, I believe, is the most appropriate and balanced way to deal with the question of deproscription. It ensures that any person who believes that any proscription is inappropriate has a clear route to challenge that proscription, so that groups which are not concerned in terrorism and no longer pose a risk to the public can be deproscribed. But it also avoids placing the public at risk, or causing alarm, through precipitate decisions to lift restrictions on organisations with a significant terrorist pedigree but which may have, for example, become less visibly active in recent times. It is an enduring feature of the terrorist threat that both individuals and organisations with a terrorist mindset can disengage and then re-engage in terrorist activity, potentially without warning. Such individuals and groups will continue to pose a threat, and to be properly characterised as terrorist, during both their fallow and active periods, and it would not be responsible for the Government to remove the prohibitions and stigma that apply to proscribed organisations unless we are truly certain that they have changed and no longer pose a threat.

The Government are committed to ensuring that the right groups are proscribed and that the public are protected. But we are not persuaded that introducing regular formal reviews of past proscription decisions would in practice prevent any injustice, particularly given the existence of a review system on application, whereas such a system of formal reviews could lead to perverse outcomes and would have a significant operational impact in terms of diverting investigative and intelligence resource from current threats to public safety in order to carry out the reviews.

[Lord Pannick]

I am very grateful to the noble Baroness. Her argument appears to be that there is a power to apply for a review. She will be aware that under the Sanctions and Anti-Money Laundering Act 2018, which Parliament approved earlier this year, where a person is subject to sanctions, they can apply for a review, but nevertheless there is an obligation on Ministers to conduct a periodic review to ensure that the process is properly applied, and that sanctions are continued only against those who deserve to continue to be sanctioned. What is the difference in this context?

[Baroness Williams of Trafford]

My Lords, I am not entirely sure. They are different procedures. I shall write to the noble Lord on the difference because he makes a valid point.

Immigration: Appeals

Lord Pannick Excerpts

Tuesday 6th November 2018 Lords Chamber

[Baroness Williams of Trafford]

I appreciate what the noble Lord is saying, and on face value it looks sensible, but quite often new evidence is presented just before the tribunal which is not available to the original decision-maker. For that reason, the noble Lord’s point would not be valid. The consequence of information being presented too late is that it is often too late for the Home Office to then withdraw the case.

[Lord Pannick (CB)]

My Lords, does the Minister agree that there would be fewer appeals if the immigration department was prepared to adopt the policy that, where it rejects an application because of inadequate documentation, it should then be open to the applicant to supply the missing documents rather than undergo the expense and delay of either appealing or making a fresh application. The Minister knows of my interest in this subject because she has been making heroic efforts to get an answer from the immigration department as to whether or not it is prepared to adopt such a practice in the case of Ramie Smith and Gideon Cohen, who married recently, as well as in other cases. When does the Minister think she will get an answer from the immigration department to this very basic question?

[Baroness Williams of Trafford]

It is a shame the immigration department is not at the Dispatch Box. I agree with the noble Lord; we have had several discussions on this. My right honourable friend the Immigration Minister is absolutely aware of this and is trying to make improvements in the process. What the noble Lord and I have been talking about is that the process is not entirely clear in some of these cases.

Crime and Courts Bill [HL]

Lord Pannick Excerpts

Monday 2nd July 2012 Lords Chamber

[Lord Thomas of Gresford]

My Lords, I support my noble friend in the amendment that is also in my name. She referred to people using television for their own purposes. There has been an example of that recently in Norway, where your Lordships will recall that a defendant has made every use that he possibly could to carry his message to the public. Your Lordships may think that that is an example of the sort of thing that we wish to avoid.

The noble Baroness, Lady Kennedy of The Shaws, was somewhat caught today by the two back-to-back Statements and was due to preside over the important recognition of the anniversary of the 7/7 massacres. Consequently, she is not able to be here to promote her Amendment 147AA. She has no problem in relation to the higher courts and neither do I—there is no reason why the Court of Appeal or the Supreme Court should fear exposure to the cameras—but she is concerned, and I share her concern to a considerable degree, that the sentencing remarks can possibly lead to problems, as my noble friend Lady Hamwee has just pointed out.

I have no doubt that sentencing remarks would be used only in high-profile cases with salacious details or where celebrities were involved. It would not be long before there was pressure, when sentencing remarks were made, for the camera to show the face of the defendant as he received his sentence or, even worse, the faces of the victim or their families at that critical moment about which I spoke at Second Reading. I am very concerned about that. We must avoid the business of the court being made entertainment for people. Criminal court is a very serious matter and the parameters must be considerably restrained. I support the amendment in my name and that of the noble Baroness, Lady Kennedy.

[Lord Pannick]

My Lords, I welcome Clause 22. Broadcasting will enhance the public understanding of our justice system, which in general works efficiently and fairly. It is important that members of the public are able to see that this is so through modern means of communication. As is often said, justice should be seen to be done.

There is also, of course, the possibility that allowing the cameras in may illuminate areas of court proceedings that are in need of reform. I entirely agree with what has already been said about the fundamental undesirability of cameras showing the evidence or, as the noble Lord, Lord Thomas of Gresford, said, the reactions of witnesses or victims at any stage of the court proceedings. I am sure that the Minister’s intention is to have regulations that would prohibit any of that, and I look forward to hearing what he says about why that matter should not be addressed in primary legislation.

I am a bit concerned by the final words of Amendment 147ZC, moved by the noble Lord, Lord Beecham, which say that filming would not be permitted if it would cause “undue prejudice” to any person involved in the proceedings. I can well understand that a defendant in a notorious case, in which there was a very strong argument for broadcasting the sentencing remarks, may say that to single him out for broadcasting would indeed involve prejudice. It would be most undesirable if people were able to present such an argument.

I am very concerned about Amendment 147A in the names of the noble Lord, Lord Thomas of Gresford, and the noble Baroness, Lady Hamwee. As I understand their amendment, it would prohibit the broadcasting of any part of the argument in, for example, the divisional court or the Court of Appeal, despite the fact that the issues raised may be of considerable public importance. If that is the noble Lords’ intention, that seems highly undesirable.

[Baroness Hamwee]

Perhaps I could make it clear: in this amendment we aimed to set out what we understand the Government’s current intentions to be.

[Lord Pannick]

I am grateful to the noble Baroness. I would hope that the Government would allow, at the discretion of the judge, the broadcasting of the arguments in the divisional court and in the Court of Appeal—cases, of course, where there are no witnesses. There is no evidence; these are matters of law. Some of them—one could easily give examples—are matters of fundamental public importance. If, as is the case, the whole of the proceedings in our Supreme Court can be broadcast, including the arguments that are being addressed, it would seem highly desirable that the broadcasters should be allowed, at the discretion of the judge, to broadcast the arguments in the lower courts.

The noble Baroness, Lady Hamwee, expressed a number of concerns about broadcasting. I am sure the noble Baroness is right that the danger is that broadcasters may be looking at the most sensational cases, and will broadcast snippets of the proceedings and may sensationalise matters. However, that is already the case in relation to print journalism and I see no reason at all why Parliament should be more concerned to regulate the content of what is communicated to the public through broadcasting than through print journalism.

I also have to say, as someone who has appeared in a number of cases in the European Court of Human Rights and the Supreme Court that have been broadcast, that her fears that counsel will play to the gallery are unfounded. I am not aware of any evidence that, once the case gets started and the submissions are being made, those who are presenting the arguments do other than focus on persuading the court. Indeed, were they to do otherwise and present themselves as actors with a view to impressing a wider audience, they would undoubtedly soon suffer the unemployment that is endemic in the acting profession. They are also regulated by the Bar Council.

The noble Lord, Lord Thomas of Gresford, expressed understandable concern that there should be no risk in this country of any broadcast of the equivalent of the recent conduct of the Norwegian defendant. I suggest to noble Lords that a discretion for the trial judge would prevent that. In any event, witnesses, victims and defendants could not be broadcast.

We should welcome Clause 22. Many of the concerns that have been expressed, I submit, are unfounded, and I hope the Government will allow broadcasting at the discretion of the trial judge—certainly of sentencing remarks and judgments in the Court of Appeal but also, I would hope, of judgments in the lower courts such as the Divisional Court and the High Court generally, and arguments in the courts below the Supreme Court.

[Lord Borrie]

My Lords, after hearing my noble friend Lord Beecham on my own Front Bench and the spokesman from the Liberal Democrat Benches, I was a little anxious that we were going to be extremely restrictive on this opening-up of the courts to television, radio, et cetera. The noble Lord, Lord Pannick, has redressed the balance by putting an emphasis on what I might call “open justice”. The phrase, “Justice must be seen to be done” is not just one we trot out when dealing with matters of significance, in terms of enabling the public to know the arguments for this or that, it is a meaningful phrase that has its origins in the reality that people used to attend courts, especially the local magistrates’ courts, in great numbers. I remind your Lordships that in the 19th century, and to some extent the 20th century, newspapers, especially local newspapers, used to have journalists on tap who would report at great length—pages and pages—on the evidence, arguments and judgments given in the magistrates’ courts. That was the way in which the public could assess what was going on in their name in the courts of justice in this country.

As a matter of fact, sadly or otherwise, nowadays journalists on local newspapers very rarely go to magistrates’ courts and do that job that used to be done by their predecessors. It follows that people today know less about what goes on in their local courts than was the case, and the Government’s proposal in Clause 22 redresses the matter. I agree entirely with the noble Lord, Lord Thomas of Gresford, and found myself nodding as he said that we do not want such television performances as that of the Norwegian defendant in the case to which the noble Lord referred. The defendant was skilfully using the fact of being in court to retail political and other propaganda, for the benefit not of the justice system being better understood but of the kind of extreme views that he held.

As the noble Lord, Lord Pannick, indicated, it should be possible to broadcast lawyers and judges arguing legal matters or otherwise, or judges sentencing when a trial comes to an end. As the Government are making a relatively new and welcome advance in these matters, we should not be too restrictive. That does not mean I necessarily disagree with my noble friend Lord Beecham on the matter of detail to which he referred, but I had the feeling he might be a little too restrictive—or cautious, it might be sufficient to say—and preferred the open approach of the noble Lord, Lord Pannick.

--- Later in debate ---

Moved by

[Lord Pannick]

148: After Clause 22, insert the following new Clause—
“Scandalising the judiciary Abolition of offence of scandalising the judiciary
The offence of scandalising the judiciary under the common law of England and Wales and the common law of Northern Ireland is abolished.”

[Lord Pannick]

In the absence of the noble Lord, Lord Lester of Herne Hill, for which he has asked me to apologise to the Committee, I move Amendment 148, which raises the question of whether it should continue to be a criminal offence to insult the judiciary. The amendment is in my name and those of the noble Lord, Lord Lester of Herne Hill, the noble and learned Lord, Lord Mackay of Clashfern, and the noble Lord, Lord Bew, who I am very pleased to see in his place.

This area of the law has been the object of ridicule since Mr Howard Gray, the editor of the Birmingham Daily Argus, was prosecuted in 1900 for an unflattering article about Mr Justice Darling’s conduct at the Birmingham Assizes. That judgment is the foundation of the modern law. The official law reports state, somewhat sanctimoniously, that it was not necessary to set out the offending remarks but fortunately the Law Times informed its readers of the contents. In his newspaper article Mr Gray had described the learned judge as,

“an impudent little man in horsehair, a microcosm of conceit and empty-headedness”.

He added that:

“No newspaper can exist except upon its merits, a condition from which the bench, happily for Mr Justice Darling, is exempt”.

The editor suggested that the judge, assessed on his merits, would have been, “a successful bus conductor”.

Mr Gray’s invective—one might describe it as 50 shades of Gray—was not appreciated by the courts, although his comments are kinder than the view since taken by legal historians of Mr Justice Darling’s contribution to jurisprudence. Mr Gray was prosecuted, made a grovelling apology before the Lord Chief Justice, which kept him out of prison, and was fined £100 and ordered to pay costs.

When I was a law student in the 1970s cases such as Mr Gray’s from the early years of the 20th century were regarded as historical curiosities with little, if any, contemporary relevance. In 1984, in the Appellate Committee of this House, Lord Diplock described the application of contempt law to statements scandalising the judiciary as “virtually obsolescent in England”.

This area of our criminal law could, and would, have been left as a legal relic—a matter of concern only to historians and students—but it has recently had life breathed into it by the Attorney-General for Northern Ireland, Mr John Larkin QC. It is because of the recent case that this Committee is being asked to consider whether this area of the law should be reformed.

--- Later in debate ---

We also need to consult the Northern Ireland Administration, given that the criminal law is now a devolved matter. We might also wish to discuss with Scotland whether its similar common law offence might usefully be abolished at the same time. As your Lordships will be aware, we should not legislate in the Westminster Parliament on a devolved matter without the consent of the relevant devolved legislatures. I recognise the concerns raised by noble Lords about this offence and the desire to act quickly to abolish it. The Government are sympathetic, but we would like to consider the issue further and consult others, particularly the judiciary and the devolved Administrations, before taking a final view. To allow time for such consultation, I ask the noble Lord to withdraw his amendment at this stage on the understanding that we can come back to this matter on Report.

[Lord Pannick]

I am grateful for the Minister’s positive response to this debate. I share the views of the noble and learned Lord, Lord Goldsmith, that self-restraint in criticising the judiciary is to be encouraged. Much of the criticism of the judiciary that we hear is ill-founded and unsubstantiated. This amendment is certainly not intended to encourage criticism, and certainly not unfounded criticism; its only point is that the criminal law is not the appropriate means of protecting the judiciary’s reputation. As the noble and learned Lord, Lord Carswell, recognised in his superb work as Lord Chief Justice of Northern Ireland and told the Committee today, confidence in the judiciary is not simply promoted by criminal proceedings. As the Minister said, it is significant that the noble and learned Lords, Lord Carswell and Lord Goldsmith, with their experience, have spoken in favour of this amendment, to which the noble and learned Lord, Lord Mackay of Clashfern, added his name.

The noble Lord, Lord Borrie, pointed out that the continuing existence of the offence of scandalising the judiciary does not inhibit the press much. There are two responses to that. First, it is not much of a recommendation for maintaining this area of criminal law if it has no effect, with no successful prosecution since 1932. Secondly, and more importantly, the recent conduct of the Attorney-General of Northern Ireland unfortunately may well have an inhibiting effect on others who are considering making critical comments about the judiciary. The noble Lord, Lord Borrie, teased me about wanting instant change. It is of course 112 years since the prosecution of Mr Gray, and if no one can present an argument for retaining this offence, I do not see why it is necessary to wait for a Law Commission report in years to come.

The Minister accepted that there is unlikely to be a gap in the law. I entirely accept that on a matter of this sort, before bringing forward any amendment of their own, it is right and proper that the Government would want to consult the judiciary and the devolved Administrations in Scotland and Northern Ireland. By Report, I very much hope that the Government will have formed a view in the light of such consultation. For the time being, with grateful thanks to the Minister, I beg leave to withdraw this amendment.

Amendment 148 withdrawn.

Crown Prosecution Service

Lord Pannick Excerpts

Thursday 12th May 2011 Lords Chamber

[Lord Mackenzie of Framwellgate]

My Lords—

[Lord Pannick]

My Lords, can the Minister tell the House whether the Director of Public Prosecutions was consulted about these proposals? If so, will she place a copy of the director’s response in the Library?

[Baroness Verma]

My Lords, we have probably consulted an awful lot of people, including the director. However, to ensure that I am completely safeguarded on that, I will write to the noble Lord.

Middle East Peace Process

Lord Pannick Excerpts

Wednesday 4th May 2011 Lords Chamber

[Lord Pannick]

My Lords, the noble Baroness, Lady Tonge, says that we must not miss this opportunity to advance the peace process. But progress depends on repudiating the noble Baroness’s thesis that Israel and what she describes as the Israel lobby are solely responsible for barriers to peace. Progress essentially depends on a recognition of the interests, the concerns and the mistakes of both sides.

[Baroness Tonge]

My Lords—

[Lord Pannick]

I will not give way. I have only two minutes.

The unfortunate Palestinian people continue to be denied freedom of expression and an independent judiciary. It is therefore very difficult for leaders to emerge who are able to say clearly to their own people what needs to be said. What needs to be said is, “It is in your interests to abandon the futile attempt to destroy the state of Israel. Let us concentrate on education, prosperity and the development of a civil society of our own”. That, more than anything, would give confidence to the leaders and the people of the state of Israel that a peace settlement can be achieved which is a lasting solution to an extremely difficult problem so that security walls, blockades and military courts are no longer needed.