Privileges and Conduct

Debate between Lord Pannick and Baroness Butler-Sloss

Tuesday 30th April 2019 Lords Chamber

[Baroness Butler-Sloss]

My Lords, at this late stage I shall be very brief—I confess of course that I am a lawyer—and say something about adversarial and inquisitorial, because there may be some misconceptions. I am delighted to hear that there will be a panel of investigators. I would expect most of them not to be lawyers, but to be able to do practical investigation. That seems to be entirely sensible. We need to differentiate between the different sorts of cases. There will be cases of harassment or bullying, which are nasty and will possibly require suspension from the House. There will occasionally be cases such as Lord Lester’s. It is in relation only to that type of case that something slightly different should take place. As the noble and learned Lord, Lord Woolf, said, it is not a good idea to have the person who is adjudicating also being the investigator. There are problems in that. I am not criticising the current commissioner; I just think that she could have done with some help.

I have a suggestion about the best thing in the very difficult case of a stark difference of evidence, where one has to resolve who is telling the truth; because only one person can be in such a—thankfully rare—case. In such a case the investigator should, in my view, be a lawyer. However, it is appropriate only in that rare case, where the reputation of the victim is important, but so is the reputation of the Peer, who is almost certainly going to be excluded from the House for ever and whose reputation will be completely destroyed. At that point, you do not want cross-examination as such, but you need a sensible, discreet member of the Bar who can ask appropriate questions, without being disagreeable about it, to try to ascertain the truth from the parties who are being asked these questions. I put it to the House that there are rare cases where the commissioner may need the help of a lawyer rather than the ordinary investigator we are talking about.

[Lord Pannick]

Does my noble and learned friend agree that, in her experience, many inquisitorial processes take place throughout the country, on a wide variety of subjects, where lawyers are involved and there is a degree of cross-examination by counsel to the inquiry and lawyers representing the individuals? The fact that it is inquisitorial does not mean that those protections are removed.

[Baroness Butler-Sloss]

I entirely agree. I have chaired commissions, committees and so on, particularly the Cleveland child abuse inquiry, where there were a great many lawyers. I am not suggesting any of that for this, but I think we need to adjust the way in which the issue is tried according to its seriousness and the likely outcome, if it goes the wrong way, for the Member of this House who will be permanently excluded.

Voyeurism (Offences) (No. 2) Bill

Debate between Lord Pannick and Baroness Butler-Sloss

Committee: 1st sitting (Hansard): House of Lords
Monday 26th November 2018 Lords Chamber

[Lord Pannick (CB)]

My Lords, Amendment 1 is in my name and that of the noble and learned Baroness, Lady Butler-Sloss. I apologise for not having been present at Second Reading. I was in Udaipur, India, for the wedding of my son Joel to Dhara Shah, and very enjoyable it was. However, as the Minister knows, I have taken an interest in this Bill since before it arrived in this House.

I strongly support the Bill. It will provide much-needed criminal sanctions for offences that cause substantial distress to victims, but my concern is that, as drafted, it might fail some victims. The problem is that each of the offences created by Clause 1—that is, operating equipment or recording an image beneath the clothing of another person—is dependent on proof by the prosecution that the defendant has acted for a purpose mentioned in new Section 67A(3). There are two unlawful purposes: obtaining sexual gratification, and humiliating, alarming or distressing the victim.

My concern is that it is absolutely inevitable that some men—it will almost always be men—who are accused of this offence will say that they did the act of voyeurism not for the purpose of sexual gratification or for humiliating, alarming or distressing the victim, but for the purpose of “having a laugh”. Of course, there is nothing remotely funny about these offences for the victim. I recognise that the prosecution will invite the magistrate or the jury to reject any such defence, but there is a real risk that the defence may succeed in at least some cases, perhaps because the jury will be confused by the need for the prosecution to prove one of the specified purposes.

I share the concern expressed by the noble Baroness, Lady Burt of Solihull, at Second Reading. At col. 789 of Hansard, she talked about defence barristers seeking for their clients “a legal loophole”. There is a potential loophole here; indeed, one so large that it would be more appropriate to describe it as a manhole. My amendment is designed to deal with this by providing that the defendant commits a criminal offence if the prosecution can prove that the defendant acted for the purpose of obtaining sexual gratification or for the purpose of invading the privacy of the victim, whether or not by humiliating, alarming or distressing them.

The amendment would not alter the structure of the offence. It would retain the need for a mental element—that is, proof of the defendant’s purpose. It would retain the imposition of notification requirements only on those who commit the offence for reasons of sexual gratification, which the Government are rightly concerned about. However, it would prevent defendants adding to the distress of their victims by running a wholly unmeritorious defence which may, in some cases, result in them escaping justice. I beg to move.

[Baroness Butler-Sloss (CB)]

My Lords, I have put my name to this amendment and I also support the Bill. I say to the Minister that the amendment is intended to be helpful.

I have been reflecting on the possibility that this might happen to me. From time to time, I wear very wide skirts, and more than once, in going up and down the stairs to the Tube, the skirt has come right up. I can just imagine a young man thinking it irresistible to stick his iPhone under my skirt as it goes right up for a lark. He might then say that it was not intended and that he did not think he would humiliate me. Quite simply, I would not be humiliated, alarmed or distressed. I would be extremely angry. And if I got the chance, I would put my leg exactly where you think I might. Bear this example in mind. In my view, it is not covered by the current wording of the clause because the action lacks intent and, much more importantly, was done to an elderly woman who then did not suffer any of the suggested reactions. As my noble friend Lord Pannick said, there is a gap—a manhole—and victims such as myself would not be covered.

I am sure the Minister had no hand in drafting this, but it is a well-meaning example of male paternalism. Nice, decent elderly men think that this is how all women would feel, but I am one who does not. For that reason, I strongly support this amendment.

Courts and Tribunals (Judiciary and Functions of Staff) Bill [HL]

Debate between Lord Pannick and Baroness Butler-Sloss

Report stage (Hansard): House of Lords
Tuesday 16th October 2018 Lords Chamber

[Lord Pannick]

My Lords, I am all in favour of flexibility and entirely understand the argument, in relation to the exercise of judicial functions, that we should be careful not to prescribe conditions that are more appropriately left to the rules committee and the Lord Chief Justice. I have more difficulty with Amendment 3, which concerns the function of giving legal advice to judges. We are concerned here with paragraph 14 of the Schedule. As I understand it, Amendment 3 seeks to impose a minimum standard for those who perform the function of giving legal advice to judges. I have some difficulty in understanding how that function can appropriately be performed by someone who does not have at least the minimum qualification of three years’ experience post qualification as a solicitor, barrister, or chartered legal executive. Unless the Government are able to say that they envisage this function being performed by someone who does not have that minimum qualification, I see great force in Amendment 3.

Amendment 4 is slightly more difficult, as it is concerned with the same function—giving legal advice—but in relation to justices of the peace. It may be that that minimum standard is not appropriate to that function. I will listen carefully to what the Minister says about that. Amendment 6 is concerned with a different question: the function of actually performing relevant judicial functions, which the noble and learned Lord, Lord Neuberger, has spoken about. I am most troubled by the issue raised by Amendment 3.

[Baroness Butler-Sloss (CB)]

My Lords, as a former judge of the family court, I wonder in what circumstances such judges—district judges, circuit judges or even possibly High Court judges—might need the advice of those who were not themselves qualified lawyers. I find that difficult. I see no difficulty with justices of the peace—that is perfectly obvious—but at the moment I cannot see how any family court judge, at any level, should be advised on legal issues by someone who is not legally qualified. I would be grateful to the noble and learned Lord for explaining what he sees this applying to, and in what circumstances.