Social Action, Responsibility and Heroism Bill

Debate between Lord Phillips of Sudbury and Lord Pannick

Tuesday 4th November 2014 Lords Chamber

[Lord Phillips of Sudbury (LD)]

My Lords, I agree word for word with what the noble and learned Lord, Lord Lloyd of Berwick, said in moving his amendment, and indeed with what the noble Lord, Lord Beecham, has just said.

[Lord Pannick (CB)]

May I remind the noble Lord that there is a list of speakers in this debate?

[Lord Phillips of Sudbury]

I thought that we were debating the amendment.

[Lord Pannick]

There is a list of speakers and next on the list is the noble Baroness, Lady Browning, who is expecting to speak.

Legal Aid, Sentencing and Punishment of Offenders Bill

Debate between Lord Phillips of Sudbury and Lord Pannick

Tuesday 24th January 2012 Lords Chamber

[Lord Pannick]

My Lords, there are undoubtedly few examples of claims under the scheme that raise complex legal issues that require legal advice, but there are some, and it is unfortunate that the Bill should seek to exclude legal advice and representation in cases where such complex legal issues arise. It is particularly unfortunate that paragraph 16 of Part 2 should exclude claims under the criminal injuries compensation scheme because that conflicts with one of the most welcome and important developments in criminal law in recent decades: the recognition of the rights and interests of victims of serious crime. The criminal injuries compensation scheme is one of the earliest statutory—or non-statutory, in its case—recognitions of the rights and interests of victims. I can think of nothing more likely to undermine the real interests of victims where complex matters are raised than denying them any opportunity of legal aid and advice through the legal aid scheme.

[Lord Phillips of Sudbury]

My Lords, I was rather impressed by the case that was put to the House by the noble Lord, Lord Beecham, and at the same time I heard what my noble friend Lord Thomas said from his direct experience of these types of tribunal. In summing up this debate, perhaps my noble friend might contemplate a compromise where legal advice would at least be available even if legal representation is not. That would significantly alleviate the sort of case that the noble Lord, Lord Beecham, told us about, and would see justice done.

--- Later in debate ---

[Lord Pannick]

My Lords, perhaps I may add a few words on Amendment 91. The defect in Clause 9(3) is that it defines the “exceptional case determination” exclusively by reference to breaches of convention rights and EU law rights. But those rights are designed as a floor and not a ceiling. It is most unfortunate that the Bill treats them as a ceiling. I hope that the Government, on reflection, agree that the interests of justice are criteria entirely appropriate for the responsible director to consider and to apply.

The wording of Clause 9(3) is very regrettable. If this amendment is not accepted, the consequence is that the director is compelled to deny legal aid even if he considers that the interests of justice require it in the circumstances of the case.

[Lord Phillips of Sudbury]

My Lords, my name is attached to Amendment 91. It is common ground across the Committee that the concern of those of us putting forward amendments is that, not just occasionally but frequently, the Government will inadvertently cause serious injustice by the exclusions from scope to legal aid. We have had a lot of debate on that broad proposition. The exceptional case provision in the Bill is therefore of huge importance, and if it were to be couched in sufficiently wide language, I believe that it would go a long way towards assuaging some of the great concern that is felt, as I have said, across the Committee about what this Bill will do in practice.

I want to pick up on the point made by the noble Lord, Lord Bach, that this amendment has been drafted by the Law Centres Federation. No other body of legal advice organisations in this land is as intimately knowledgeable of the on-the-ground reality of what, after this Bill has come into effect, will in practice be essential in order to avoid the greater injustices. Although my name is added to Amendment 91, I have to say that Amendment 91A is rather better and would also give the Government some solace. The arrangements that would result from it are defined in practical terms which the Government could accept. It may be that they would still be unhappy about the final subsection which talks generally about the “interests of justice”, and if that is the case, surely the way forward would be for the Government to accept the four paragraphs under the first subsection and add further ones as the price of excluding the general “interests of justice” exception. I hope that the Government will take this opportunity to put our minds at rest.

Terrorism Prevention and Investigation Measures Bill

Debate between Lord Phillips of Sudbury and Lord Pannick

Wednesday 19th October 2011 Lords Chamber

[Lord Pannick]

My Lords, Amendments 17, 42 and 43 in this group are in my name.

First, I would like to say that I support everything that has been said about their amendments by the noble and learned Lord, Lord Lloyd of Berwick, and the noble Lords, Lord Goodhart and Lord Morgan—although I have not known the noble and learned Lord, Lord Lloyd, for quite as long as I have known the noble Lord, Lord Goodhart. I support them because their amendments are designed to ensure that the imposition of a TPIM notice is a judicial act, and not an administrative act. If a restriction on basic liberty of this sort is to be imposed on British citizens because of allegations of wrongdoing, and it is not to be a part of the criminal justice process, then surely the procedure must contain as much of the rule of law as is possible.

When opening the debate at Second Reading, the Minister said at column 1137 that the Government’s approach to balancing civil liberties and national security in this context is that the Bill should go no further in limiting people’s rights “than is absolutely necessary”. That was the test he laid down, and it seems to me that that is the right test. However, if we are going to apply that test, surely it requires that the restrictions on people’s liberties are imposed only with the prior approval of a judge. If the security services cannot persuade a judge in a closed session—because that is what is going to take place—that the restrictions are needed, then surely they should not be imposed. In an urgent case, the judge would be asked to give temporary approval until the matter can be fully considered.

There was a suggestion at Second Reading that perhaps the judiciary would not want this responsibility. There are two answers to that. First, the Bill confers on the judiciary the responsibility for deciding whether a TPIM notice is appropriate at a later stage. There seems to be no difference in principle if the judiciary is instead asked to make the decision at the outset. Secondly, your Lordships should in any event have no doubt that if Parliament decides that it is appropriate to ask the judiciary to perform this role at the earlier stage, Her Majesty’s judges will perform their duty faithfully and effectively.

That is what I wanted to add on the amendments of the noble and learned Lord, Lord Lloyd. If, however, judicial control at the outset is not to be included in this Bill—which would be most regrettable—and if the imposition of a TPIM order is to remain at the outset an administrative process, then I have an alternative amendment, Amendment 17, to which the noble Baroness, Lady Hamwee, has added her name. The amendment concerns the standard of proof.

Under Clause 3(1), a TPIM notice may be issued by the Secretary of State where she,

“reasonably believes that the individual is, or has been, involved in terrorism-related activity”.

Amendment 17 seeks to substitute a test of the balance of probabilities. I would ask the Minister, in responding to this debate, to explain why it is that reasonable belief should suffice as the test to be imposed by the Secretary of State. A belief may be reasonable but wrong. Why should these sanctions be imposed on a person if the Secretary of State is unable even to be persuaded that it is more likely than not that the wrongdoing has been committed, or will be committed, by the individual concerned?

If the security services, with all the resources available to them, cannot satisfy the Home Secretary that on the balance of probabilities more likely than not an individual is involved in terrorist activities, surely there is no justification for imposing these restrictions on them. Of course, surveillance measures may well be appropriate even in relation to such a person against whom it cannot be shown on the balance of probabilities that they are involved—but that is a different matter and we are not discussing surveillance measures.

I want to speak also to Amendments 42 and 43 in this group which stand in my name. They ensure that when the court assesses the TPIM at a later stage under Clause 9, the court should form its own view on the merits and not apply a judicial review test. These amendments arise out of the concern expressed by your Lordships’ Constitution Committee, of which I am a member, at paragraphs 14 to 17 of its report. At Clauses 9(2) and 16(6), the Bill provides that when the court reviews the TPIM at the later stage, it should apply a judicial review test. In the control order context, the courts have made it very clear that they will treat the review as an appeal on the merits of the case. The Government’s Explanatory Notes accompanying the Bill accept that this enhanced level of scrutiny should also apply to the TPIMs.

The report of the Joint Committee on Human Rights, published today, also supports my Amendments 42 and 43. It says:

“The surest way to deliver the intense scrutiny that the Government says it intends is to write it explicitly into the Bill. We therefore recommend that the Bill be amended to make it clear on the face of the Bill that the review to be conducted by the courts at the review hearing is a ‘merits review’ (as opposed to a supervisory review)”.

Will the Minister please accept, as the Constitution Committee and the JCHR have proposed, that it is desirable to make it clear on the face of the Bill that at the later stage the court will be conducting an appeal on the merits, just as is the case in relation to control orders and as the Explanatory Notes state the Government intend to occur?

[Lord Phillips of Sudbury]

My Lords, my name appears with others on Amendments 1 to 4, 16 and 18 to 22. Amendment 5 stands in my name only. I accept that the Bill is warranted, but I echo the point that where in extreme circumstances—national security is a fit subject for an extremity—one departs from a fundamental freedom, it seems to be blindingly obvious that there is no less a fundamental duty to minimise that departure. I cannot for the life of me see how we do that by giving to a politician, however distinguished and assiduous, the task of making one of these—I am tempted to say draconian—orders on his or her own. That cannot be right and I echo all that has been said, in particular by the noble and learned Lord, Lord Lloyd, and by my noble friend Lord Goodhart.

Police Reform and Social Responsibility Bill

Debate between Lord Phillips of Sudbury and Lord Pannick

Thursday 16th June 2011 Lords Chamber

[Lord Pannick]

I certainly agree that the DPP should apply the same standards in the sense that he asks whether there is a realistic prospect of conviction and whether the public interest justifies a prosecution. The application of those principles, though, will inevitably depend on all the facts and circumstances of the individual case. It would be unprecedented for Parliament to tell the DPP in detail how to apply his discretion, and there is nothing in what the DPP said to the Public Bill Committee that should cause concern to noble Lords about the manner in which he proposes to exercise this new power if he is given it.

[Lord Phillips of Sudbury]

I think it is fair that I ask the noble Lord this. He has said several times now that the consent of the Attorney-General to one of these prosecutions is required. My understanding, and I want to get this quite clear, is that the Attorney-General can issue a nolle prosequi that his consent is not required.

[Lord Pannick]

It amounts to the same thing. If the Attorney-General takes the view that it is inappropriate for a prosecution to continue, they will say so. The purpose of the provision of English law is to ensure that the Attorney-General is able, in this sensitive and important context, to take a view on whether it is appropriate.

[Lord Phillips of Sudbury]

My Lords, to pursue the point, there is a vast difference, with respect, between getting the consent of the Attorney-General as a prerequisite and the right of the Attorney-General to intervene by way of nolle prosequi. The noble Lord is mistaken in what he draws from that.

[Lord Pannick]

My understanding is that consent is required. In any event, with great respect, I do not see the practical difference. Other noble Lords will assist the Committee in that respect.

Parliamentary Voting System and Constituencies Bill

Debate between Lord Phillips of Sudbury and Lord Pannick

Tuesday 1st February 2011 Lords Chamber

[Lord Pannick]

This matter should be decided by pragmatism rather than philosophy. I suggest to the noble Lord, Lord Davies of Stamford, that the contrast between paragraph 9(1) and paragraph 9(2) makes perfect sense. The Electoral Commission has a duty to inform people about the existence of the referendum and about how to vote in it, and so it should. It is given a discretion about whether it attempts to summarise the arguments on both sides. The reason it is given a discretion is because whether and to what extent it should inform people on those controversial matters depends on how much other information people are going to receive on both sides. As has already been said by many noble Lords, it depends on whether it can do that job impartially, which is exceptionally difficult, and it depends on the time constraints.

[Lord Phillips of Sudbury]

I hesitate to interrupt the noble Lord’s flow, but would he like to reconsider? He has just said that the Electoral Commission has the discretion to summarise the arguments on each side. I do not believe that that is what paragraph 9(2) says. The Electoral Commission has the discretion to summarise,

“information about each of the … voting systems”,

which is not the same as the arguments.

[Lord Pannick]

That is information about the detail of the competing voting systems which are under discussion in the referendum. It is one thing to say to the Electoral Commission, “You must tell people about the existence of the referendum, their right to vote, and when it is going to take place”. That is perfectly sensible and it must do that.

Public Bodies Bill [HL]

Debate between Lord Phillips of Sudbury and Lord Pannick

Tuesday 23rd November 2010 Lords Chamber

[Lord Pannick]

I have added my name to the amendments tabled by the noble Lord, Lord Lester of Herne Hill, for a simple reason: this is a bad Bill. It confers excessive power on the Executive. It is of fundamental importance to include in the Bill as many protective provisions as possible.

Amendment 1, read with Amendment 175, has a simple purpose. It would restrict ministerial powers so that they can be exercised only in a way that is compatible with judicial independence and human rights and freedoms; is used proportionately; and does not prevent a public body performing its functions to establish facts or to give expert advice independently and impartially. I cannot imagine that the Minister could possibly disagree with any of those well established principles. I suspect he might say that he is doubtful that such principles need to be expressed in the Bill. However, he does then need to explain to the Committee why such principles were expressly included in the 2006 Act. He also needs not merely to explain this question of precedent but to address the question of principle.

Given the breadth of the powers that the Minister seeks in the context of the Bill; given the concerns that were expressed about the scope of those powers by your Lordships’ Committee on the Constitution, of which I am a member, and by your Lordships’ Delegated Powers and Regulatory Reform Committee; and given the concerns expressed by many of your Lordships at Second Reading, it is of vital importance to identify in the Bill important constraints on the exercise of these powers. It is important for two reasons. It is important to ensure that future Ministers are as careful in their use of the powers as I am sure the Minister will be. It is also important to reassure public bodies and members of the public that we in Parliament have not lightly conferred such powers on Ministers, but rather that we have been anxious to emphasise in the Bill that there are important limits on what Parliament is willing to authorise Ministers to do.

The importance of Amendment 1, read with Amendment 175, is confirmed by the much weaker protection that the Minister is inviting the Committee to add to the Bill in his amendments. The Government’s amendments, although a welcome improvement on the original Bill, are insufficient. They simply require the Minister to consider defined matters before exercising powers. They do not—as they should—prevent the Minister making an order if and to the extent that it would interfere with the independence of the judiciary, or concern functions which require to be exercised independently of Ministers as they involve giving impartial advice or the scrutiny of Ministers’ actions. For example, government Amendment 108, which we are considering in this group, will require the Minister to consider only the extent to which the functions affected by the order need to be exercised independently of Ministers. If the functions do indeed relate to such matters, primary legislation should be required to ensure proper parliamentary scrutiny. Amendment 109, in the name of the noble Lord, Lord Lester of Herne Hill, would remove from Clause 8(2) “the Minister considers that” in relation to necessary protections.

It should not be simply a matter of the Minister forming an opinion on these matters; the Bill must provide that he or she cannot make an order if it would remove necessary protections, such as interfering with the independence of the judiciary. That would ensure—

[Lord Phillips of Sudbury]

I am grateful to the noble Lord for giving way. I am entirely sympathetic to what he and my noble friend Lord Lester are saying but I hope that he can help me and, I think, the House by answering the following question. I think he said that the provisions in paragraphs (a), (b) and (c) in the proposed new subsection (1) in Amendment 175 are implied by law and therefore do not need to be expressed in the statute. My noble friend Lord Lester wonders about proportionality, but by inserting existing powers in this Bill, are we in danger of shackling future legislation where those provisions are not inserted in the relevant Bill, and perhaps therefore getting into an argument that, as they are not there, they are not considered part of the Bill? I hope that I have expressed myself clearly.

[Lord Pannick]

I am grateful to the noble Lord. Of course, that is precisely what Parliament did in the 2006 Act. As I have sought to explain, the reason it did it in that legislation, and the reason it should do it in this legislation is because this Bill is so exceptional—it seeks to give a degree of power to Ministers which requires that the constraints are set out in the Bill in the clearest possible way in order to give confidence to those public bodies which may be the subject of orders made in the future. Regrettably, there is still doubt about whether proportionality is a general legal principle that applies to the exercise of all administrative functions.

I was dealing with the Minister’s amendment, which accepts that necessary protection includes the independence of the judiciary within the meaning of Section 3 of the Constitutional Reform Act 2005, and that is very welcome. However, Section 3 of that Act states that all Ministers of the Crown,

“must uphold the continued independence of the judiciary”.

It does not merely say that Ministers must consider upholding the independence of the judiciary, or that Ministers must not take any action which they consider would conflict with the independence of the judiciary. This is important because the constitutional principle is that it is the duty of Ministers, and all others concerned with the administration of justice, to observe the independence of the judiciary.

As so many of your Lordships explained on Second Reading, particularly the noble and learned Lord, Lord Woolf, if Ministers are to be granted those broad powers to make orders—a matter to which I am sure that we will return later in Committee—it is vital that those powers are as circumscribed as possible. They must not trespass on the independence of the judiciary and on other fundamental principles, or undermine the functions of bodies whose task is to scrutinise government conduct and give impartial advice to the Government.

I very much hope that the Minister will feel able to accept Amendment 1. If not, I very much hope that the noble Lord, Lord Lester of Herne Hill, will regard this as a matter of considerable importance as we begin Committee and will seek the opinion of the House.

Identity Documents Bill

Debate between Lord Phillips of Sudbury and Lord Pannick

Wednesday 17th November 2010 Lords Chamber

[Lord Phillips of Sudbury]

My Lords, my name is on Amendment 2. I led the opposition from these benches to the Identity Cards Bill. I spent a good deal of one year of my life opposing it. I am therefore utterly delighted that this Bill is before the House. However, I have to say that, for me, it is slighted by the denial of reimbursement of the fee paid by 12,000 of our fellow citizens when they took out this card. Had they been told at the time they took out the card that they were in danger of losing the card and not being reimbursed, then that would be different. Had the coalition partners in their election manifestos said not merely that they would revoke the whole of the ID card scheme, but not compensate those who had taken cards in the interim, then that would be different. But neither of those circumstances prevails. I really do not think that it is remotely acceptable, for the reasons which the noble Lord, Lord Hunt of Kings Heath, laid out in moving the amendment. It simply is not acceptable to say, “Ah, but they should have realised”, which is what it boils down to.

Governments must set an example of the standards they expect of private industry. Had private industry engaged in a tactic of this sort, noble Lords on all the Benches would have been up in arms, and rightly so. I feel probably more strongly than I ought to that there is a simple, basic issue of fairness in this. Since this coalition launched itself as a coalition on the basis of fairness, I felt compelled, contrary to the wishes of my Whips, to put my name to this amendment, and I have done so with some conviction.

[Lord Pannick]

My Lords, I support noble Lords who have spoken. Will the noble Baroness tell the House whether she disputes that the card is property for the purposes of Article 1 of the First Protocol to the European Convention on Human Rights? Its cancellation is therefore a deprivation of property and compensation is payable. It would be most unfortunate if those whose cards are being taken away need to litigate this matter.

Israel: Illegal Settlers

Debate between Lord Phillips of Sudbury and Lord Pannick

Thursday 14th October 2010 Lords Chamber

[Lord Phillips of Sudbury]

My Lords—

[Lord Pannick]

My Lords—

--- Later in debate ---

[Lord Phillips of Sudbury]

My Lords—

[Lord Pannick]

My Lords, does the Minister agree that a more fundamental obstacle to a peace settlement than the settlements in the West Bank, which occupy some 5 per cent or so of that territory, is the failure of Arab states to introduce into their own countries the rule of law and the right to freedom of expression which would promote a real debate in those countries about the true interests of the unfortunate Palestinian people?