Counter-Terrorism and Border Security Bill

Debate between Lord Pannick and Lord Brown of Eaton-under-Heywood

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

[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.

Civil Liability Bill [HL]

Debate between Lord Pannick and Lord Brown of Eaton-under-Heywood

Report stage (Hansard): House of Lords
Tuesday 12th June 2018 Lords Chamber

[Lord Pannick (CB)]

My noble friend Lord Kinnoull referred to “jurisprudential purity”. I would prefer to describe it as the essential role of the judiciary in deciding what compensation is appropriate. I would be very grateful if the Minister would tell the House whether there is any precedent for a Minister, rather than judges, deciding on the appropriate level of compensation for a civil claimant when that compensation is being paid not by the state—I recognise that that may be a different matter—but by a private wrongdoer or, more accurately, their insurance company. I suggest that either there is no precedent or this is rare, for a very good reason: put simply, judges, not Ministers—or their civil servants, more accurately—have expertise and independence in this area. For those reasons, I strongly support the speech made by my noble and learned friend Lord Woolf.

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

My Lords, I confess to having found this group of amendments rather difficult. As I observed in Committee, the real question as I see it in Part 1 is whether it is right to fix especially low awards for whiplash injuries suffered in road accidents, to deter the disproportionate number of false claims which undoubtedly are made following such accidents. That is what Clause 2 does: it seems to me impossible to escape that conclusion. Obviously and inevitably its effect, therefore, would be to penalise those who genuinely claim for such injuries sustained in that way. They are to pay the price of the policy underlying Clause 2, the policy of deterring the dishonest. Obviously, one regrets that.

Whether to pursue that policy and, if so, to what extent and how vigorously—in other words, how far to reduce the awards so as to make the making of a false claim less attractive—is, it seems to me, par excellence a political question. It is purely a political question and therefore I, for my part, see no particular point in involving the judiciary as Amendment 12 would do. We know what the judiciary regards as the appropriate level of damages for honest claims of this sort: the Judicial College guidelines clearly tell us that. Therefore I do not support Amendment 12.

To my mind, the real question is the altogether more fundamental question raised by my noble and learned friend Lord Woolf’s Amendment 18 and that is the one I confess that I find the more difficult. I flagged up my concerns about this and about the whole of the Part 1 policy in Committee. My noble and learned friend suggests that the proposal will create an undesirable precedent and introduce injustice into the system. Of course, I recognise the force of these criticisms and to a degree I share his doubts as to whether the incidence of false claims remains grave enough to justify this wholly exceptional measure. However, at the end of the day I am reluctantly persuaded that this provision is justified: it is surely intolerable that we are known as the whiplash capital of the world, so I have concluded that it is open to government, as a matter of policy, to seek to deter dishonest claims in this way.

I do not suggest that there are any exact analogies between the law of compensating injuries negligently caused and what is here proposed. I accept that the criminal injuries compensation scheme, to which in effect my noble friend Lord Pannick and the Minister referred—statutory awards for injuries criminally caused—is a very different creature, but it should be recognised that broad questions of policy can and on occasion do have a part to play in this area of our law. For example, the courts have held, under what lawyers here will recognise as the Caparo principle, that in certain circumstances claims are barred altogether, not just restricted. In short, there is no duty of care held to arise, even when injury follows on from what otherwise would be plain negligence, where it is held, for whatever reason, that it would not be fair, just and reasonable to compensate in those circumstances. For example, years ago in the case of the Yorkshire Ripper, the police were held exempt from claims despite their failure to apprehend the killer, which manifestly they should have done, and, as we all recall, a series of subsequent women died.

On balance, my conclusion is that there is a sufficient policy reason here for restricting damages in this case. With some hesitation, I shall not feel able to support the amendment tabled by the noble and learned Lord, Lord Woolf.

European Union (Withdrawal) Bill

Debate between Lord Pannick and Lord Brown of Eaton-under-Heywood

Committee: 4th sitting (Hansard): House of Lords
Monday 5th March 2018 Lords Chamber

[Lord Pannick]

Of course, “case-by-case basis” suggests lots of work for lawyers and a lot of legal uncertainty. I am grateful to the Minister and all those who spoke in the debate. There was, I think, widespread agreement in the debate—apart from the Minister—and from expert commentators that a legal status does need to be conferred in the Bill on retained EU law. How one confers the legal status is much more difficult than what legal status one confers. I would say that there is more than one way to skin a cat—but that may upset those who spoke in the previous debate.

I am grateful to the noble and learned Lords, Lord Mackay of Clashfern and Lord Goldsmith, for supporting the approach recommended by your Lordships’ Constitution Committee. But I agree with the noble and learned Lord, Lord Brown of Eaton-under-Heywood, that there is also great force in the suggestion made by Professor Paul Craig that the Bill should confer a status of either primary or secondary legislation, dependent on the category of EU law from which the retained EU law derives. I say to the noble Lord, Lord Adonis, who asked about this, that Professor Craig is not advocating a process of allocation on a case-by-case basis; he is advocating that legal status should depend on the article of the EU treaty from which the retained EU law derives—a much more objective approach.

[Lord Brown of Eaton-under-Heywood]

Did my noble friend hear Paul Craig say at a seminar, as I did, that it would take four competent EU lawyers four days in Brussels to classify, consistently with the classification both pre and post Lisbon, all this legislation? Four lawyers, four days—that is perhaps the answer to the question of the noble Lord, Lord Adonis.

[Lord Pannick]

Well, it depends. How long is a piece of string—how long does it take EU lawyers to allocate? But it is an objective approach. There may be difficulties, but they would be far fewer than the problems that would be posed by not addressing this problem at all in the Bill or by leaving it to Ministers to determine the matter. The other suggestion was that made by the noble Baroness, Lady Bowles. She may have the right answer. She spoke of various baskets—I think it was “baskets” rather than the word used by Sir John Major as Prime Minister in relation to opponents of the Maastricht treaty.

The core point is that it is unacceptable for the Bill to ignore the question of legal status. It is a problem that needs to be addressed if the Bill is to achieve its objective of securing legal certainty. Therefore, I hope that the Government will, as the Minister indicated, reflect on these issues before Report. I beg leave to withdraw the amendment.

European Union (Withdrawal) Bill

Debate between Lord Pannick and Lord Brown of Eaton-under-Heywood

Committee: 2nd sitting (Hansard - continued): House of Lords
Monday 26th February 2018 Lords Chamber

[Lord Pannick]

My Lords, may I respond to some of the objections that have been raised to the points made by the noble and learned Lord, Lord Goldsmith, with whose speech I agree entirely?

Many of the objections—those raised by the noble Lord, Lord Lamont, are typical—are to the content of the charter or to its implications. The Committee should appreciate that that is not the Government’s position. The Government’s position is not that they seek to exclude the charter because its contents or implications are objectionable. Their position is very clear indeed. If noble Lords read the debates in the House of Commons or look at the report of the Constitution Committee, they will see that the Government’s position is simply that we do not need the charter in this Bill because its contents and implications are already contained in the retained EU law that is being read across through this Bill. So many of the objections that the Committee is listening to are simply beside the point: they are not the Government’s objection to the charter. The Government’s objection to the charter—it is unnecessary because its contents are already part of retained EU law—is, I am afraid, simply unsustainable. I will not take up time on this, because the hour is late, but if any noble Lords are doubtful about it, I simply suggest they read the helpful opinion by Jason Coppel QC, in which he clearly sets out the equality and human rights position. That is the first point.

Turning to the second point, I am always reluctant to disagree with my noble friend Lady Deech, because she taught me law at Oxford, but I have to disagree with her on this occasion. Her objection, as she explained it, and I hope I do not misrepresent her, is that she is concerned that the charter will enable the courts to overturn legislation enacted by Parliament—she is nodding. But I am sure she appreciates that that is inherent in this Bill. The whole point of the Bill is to read across as retained EU law the content of existing EU law that is applicable to this country and to give it—see Clause 5—supremacy. Supremacy means that it takes priority, as in the Factortame case, over anything enacted by Parliament which is inconsistent. So the suggestion that we must oppose the charter because it gives courts that power is simply inconsistent with what the Bill does.

Turning to the third objection, my noble and learned friend Lord Brown of Eaton-under-Heywood was concerned about whether the inclusion of the charter would, in some way, give a power that expands the role of the charter further than under EU law. My simple answer to that is no, of course it does not. The charter is being read across only because it is part of existing EU law, and it comes across as retained EU law. It will not have any greater force than it already has as part of EU law.

[Lord Brown of Eaton-under-Heywood]

In those circumstances, does my noble friend agree that the result of that is that we are henceforth, instead of treating retained EU law as part of domestic law—having discarded the separation and shed the notion that it is a distinct body of law—still going to have to wrestle with all the difficulties inherent in distinguishing operations or actions pursued in the ambit of EU law from those that are not? Will that problem continue into the distant future?

[Lord Pannick]

My answer is very simple: yes, of course. The whole point of the Bill is to read across the EU law which currently applies to this country and for it to continue to apply. That is the Government’s objective. It is their objective because they—very sensibly, in my view—wish to ensure legal certainty and clarity on exit day. That is exactly the legal position. It is not my idea; it is the Government’s intention in this Bill.

As to all the concerns about what the charter might or might not do, one should bear in mind that the charter has been applicable in the courts of this country for many years. No one has suggested that there is some case or principle which is so objectionable that we need now to make an exception for the charter, when the Government’s intention in the Bill is to read across all retained EU law to ensure a functioning statute book that preserves the legal position and ensures clarity, certainty and continuity. That is what this Bill is about.