Judicial Appointments Commission Regulations 2013

Debate between Lord Scott of Foscote and Lord McNally

Monday 29th July 2013 Lords Chamber

[Lord McNally]

That the draft regulations laid before the House on 20 June be approved.

Relevant document: 6th Report from the Joint Committee on Statutory Instruments, considered in Grand Committee on 22 July.

[Lord Scott of Foscote]

Before your Lordships pronounce on the satisfactory or unsatisfactory quality of these regulations, I have a point which I endeavoured to make when these Motions were debated in the Moses Room a week or so ago. It relates to the provision regarding the appointment of members of selection committees, whose job it will be, once the committees have been established, to deal with the applications for appointments to senior judicial roles. The arrangement is that senior judges—the president, the Lord Chief Justice, the Masters of the Rolls or whoever it may be—will have the power to nominate the members of these commissions. However, the regulations go on to say that, in the event that the Lord Chancellor of the day is of the opinion that the senior judge in question suffers from an incapacity—presumably an incapacity to discharge the role of nominating members of the commissions—somebody else has that power.

I am bound to say that, when I first read these regulations, I thought it was thoroughly unsatisfactory for a senior member of the Executive to have the power to pronounce on his or her belief in the incapacity of a senior judge to discharge a statutory function that would otherwise be exercisable by that judge. I made this point in the course of the debate in the Moses Room and, since then, the noble Lord, Lord McNally, has been kind enough to write me a letter about these points. He drew my attention to similar provisions that can be found in primary legislation—in particular, the Constitutional Reform Act 2005 but there was another Act that he referred to where similar provisions are to be found. I was not aware of that. It is profoundly unsatisfactory that provisions of that sort allow a member of the Executive to remove powers from a senior judge on the Executive member’s belief in the incapacity of the judge to exercise those powers without any apparent necessity for the opinion to be backed up by medical evidence or psychiatric evidence. It is not consistent with the constitutional requirement of the separation of powers and I voice these objections now.

The sting is taken away by the fact that similar provisions have already found their way into primary legislation but, nonetheless, the existence of these provisions is unsatisfactory. I wish I had known that they were there in primary legislation. I would have taken the same objections at that stage. It is difficult to see why the opinion of a Lord Chancellor, who is not a medical person or necessarily even a lawyer, on the incapacity of a senior judge to exercise a particular statutory function should by itself be enough to relieve the individual of the power to exercise that function. The House should be aware of this matter before allowing these regulations into legislation. I am not proposing that the regulations should be voted down but the House should be aware of this. I regard it as unsatisfactory in principle and, up to a point, unconstitutional.

[The Minister of State, Ministry of Justice (Lord McNally)]

My Lords, the noble and learned Lord, Lord Scott, goes even further than he did in Committee. These matters are not unconstitutional. Let me be clear that the role of the Lord Chancellor to determine the incapacity of the Lord Chief Justice and the President of the Supreme Court is not newly created by these regulations. As the noble and learned Lord, Lord Scott, has acknowledged, this role is already set out in extant primary legislation. It is also true that these regulations come before the House after extensive discussions with the President of the Supreme Court and the Lord Chief Justice. The regulations have been examined in detail by the Justice Committee and I think by the Constitution Committee of this House—but I may be wrong on that. Certainly, they have gone through quite a thorough mincer of committees and they were discussed in Committee in the Moses Room.

The Lord Chancellor’s letter to the Scrutiny Committee set out in some detail why the normal procedure for determining incapacity of the Lord Chief Justice was not appropriate in these circumstances. In short, the heads of division who normally make this determination may themselves be applicants in the appointment process in question. Therefore, to ensure there is no perception of conflict of interest, they do not have a role. It may also be helpful if I explain why we consider it entirely appropriate for the Lord Chancellor to determine incapacity. The Lord Chancellor has a significant number of responsibilities through the process from requesting a panel is convened, determining the content of the panel’s report and, of course, making the final selection decision. The system is therefore reliant on the Lord Chancellor discharging a range of duties and powers appropriately. The Lord Chancellor, under Section 3 of the Constitutional Reform Act, also has a statutory duty to protect the independence of the judiciary. Therefore, if the Lord Chancellor were to determine incapacity where that was not in fact the case, this would be a breach of that duty. This means that in reality it is very likely that the Lord Chancellor would consult the relevant members of the judiciary to determine incapacity, but we do not consider it necessary to spell out the nature of that consultation in the regulations. That is particularly the case as relevant persons may be different in different circumstances.

As regards determining the Lord Chief Justice’s incapacity, it may be appropriate to consult him or her personally to determine whether, for example, the incapacity results from a planned operation; or it may be appropriate to consult the heads of division if they are not the subject of the appointments process in question. Alternatively, it may be appropriate to consult the President of the Supreme Court.

The role of the Lord Chancellor in determining incapacity is taken from extant primary legislation. We do not consider that the role gives rise to any risk of inappropriate behaviour, particularly as the Lord Chancellor could not, of course, do anything that would breach his overriding duty to protect the independence of the judiciary.

Judicial Appointments Commission Regulations 2013

Debate between Lord Scott of Foscote and Lord McNally

Monday 22nd July 2013 Grand Committee

[Lord McNally]

That is most certainly true. When I saw the noble and noble and learned Lords gathering, I should have known that this was not going to be an easy task. One of the great benefits of the House of Lords—those who know that I am an avid reformer should take note of this—is there are not many places where one could get such profound legal advice so cheaply. For that, I am extremely grateful to noble and noble and learned Lords. I would again ask that they pass these regulations, but with the firm promise that the points that have been raised will be drawn to the attention of the Lord Chancellor.

[Lord Scott of Foscote]

I hope that the noble Lord can clarify a matter for me. My understanding is that this has to go before the House, which must pass the affirmative resolution. The matter cannot be dealt with finally just by this Committee.

[Lord McNally]

It will go before the House where, I am sure, having listened to my explanations today, I will have at least a dozen strong supporters in favour of adopting these regulations.

Defamation Bill

Debate between Lord Scott of Foscote and Lord McNally

Monday 17th December 2012 Grand Committee

[Lord Scott of Foscote]

My Lords, perhaps I may add to what has been said. The inability to bring an action for defamation on behalf someone who is deceased does not prevent action being taken to prevent repetition of the untrue allegations that are being made if it can be shown that their repetition is likely to cause a breach of the peace. I came across such a case when I was a barrister and was once instructed to do something to stop lies, as I was told, being told about a deceased public figure. I said that defamation was not a runner but that one could get an injunction, not damages, to stop a repetition if there was a real likelihood of a breach of the peace. However, for that purpose, one had to get the consent of the Attorney-General. I applied to the Attorney-General, who refused to give his consent, and that was the end of the matter.

[Lord McNally]

My Lords, again we are indebted to my learned friends for enlightening this debate. Dealing with the reputation of the dead is a difficult matter. I recently had to answer a Question in the Lords about a pardon for Dr Alan Turing, and I answered by referring to the strict letter of the law as it now stands. I then found that someone had added a line to my entry in Wikipedia that stated that I was strongly opposed to giving a pardon to Alan Turing.

The issue is very difficult. As my noble friend Lord Hunt said, I saw Mr and Mrs Watson, and anyone who meets them cannot but be moved by the grief that they continue to feel. When I saw them in October 2010, the draft Bill was already starting its slow process down the slipway, and I suggested that they give evidence to the public consultation, which subsequently involved the pre-legislative scrutiny committee. Mr and Mrs Watson gave evidence and argued that the Government should allow proceedings to be brought in respect of defamed homicide victims. However, they were the only respondents who raised this issue, and neither the specific issue of defamation of homicide victims nor defamation of the dead more generally arose in evidence to the Joint Committee.

However, as has been said, the Watsons, who live in Glasgow, have raised this issue in Scotland, where it is a devolved matter subject to Scottish Law. The Scottish Government published in January 2011 a consultation paper, Death of a Good Name—Defamation and the Deceased. Analysis of that response has been published by the Scottish Government, but they have yet to indicate whether they are minded to propose any change to their law in this area.

I say again, as I said to Mr and Mrs Watson, that they should also cling to the judgment of the judge. That is the most sound and tested opinion of their daughter’s reputation, and it was clear and unequivocal in a way that I had hoped would have given them some of the comfort that they sought. However, I can imagine—and it does not apply just to famous people—that when things are said about loved ones after their death it must be extremely hurtful to those who have been close to them. Perhaps I should gently lob the ball back to my noble friend Lord Hunt in the hope that the handiwork he is undertaking in terms of a media response to Lord Justice Leveson and a regulatory body with teeth that bite might be an area where the teeth might bite if the media behave in the way that the Watson family suggested.

However, this amendment seeks to change the law in relation to the rights of representatives of deceased persons to bring defamation actions. It is not a provision for the avoidance of doubt. It is a long-established principle of common law that a deceased person cannot be defamed because reputation is personal. A defamatory statement about a deceased person accordingly does not give rise to a civil action for defamation on behalf of his or her estate. Relatives of the deceased also have no right of action unless the words used reflect on their own reputation. That reflects the central principle in civil proceedings generally that a claim for damages can be brought only by the person who has suffered the injury, loss or, in this case, damage to his or her reputation as a result of an act of omission of another person.

The Government believe that there will be significant difficulties with attempting to allow representatives to bring defamation actions on behalf of deceased persons. For example, in the event of defamation proceedings being brought by a representative of the deceased person, it would not be possible to bar that defendant from using the defences that exist to a defamation action. That would result in arguments over the truth of negative allegations about the deceased’s character, which inevitably would be distressing for their family and which could not be put to proof by questioning of the deceased.

Also significantly, this amendment does not propose to put any time limit on the period after death during which such an action would be brought. That potentially creates huge difficulties for historians wishing to engage in historical analysis and debate, especially given that there is no definition of representatives, which means that it would not necessarily need to be a close family member who brought the action on behalf of the deceased person. That could lead to a situation where a historian published a biography of a significant historical figure many years after that person’s death. He could be sued by a law firm or an individual with no close tie to the deceased person who was the subject of the potentially defamatory statement.

In the second subsection of the amendment, it is not clear to which individual the serious harm would have to be caused nor is it immediately apparent how a defamatory statement could cause a breach of the peace. However, it is because of the very serious legal and practical difficulties that I have already highlighted that the Government cannot support this amendment. For all those reasons, I hope that the noble Lord will withdraw it.

Perhaps I may say to the noble Baroness, Lady Bakewell, that the BBC and the police are investigating the Savile matters, and I think that I should leave it there for the moment.

On the point made by the noble Lord, Lord Browne, I have said before that I am amazed how often when I ask about a certain thing in the Ministry of Justice, they say, “Well, they do this better in Scotland”. I do not know whether that is a tribute to the quality of Scottish law, but it will be interesting when it is faced with the very real dilemma of where you draw the line. The noble Lord suggested a year or so, but wherever the line is drawn, there will be those who are just on the other side of it. It is a difficult dilemma, and you cannot but feel sorrow for the grief of those who are affected by it. I think that the Government are right to hold the line where it is but, as ever, we will keep an eye on other examples.

Industrial Tribunals: Fees

Debate between Lord Scott of Foscote and Lord McNally

Wednesday 19th October 2011 Lords Chamber

[Lord McNally]

My Lords, I fully endorse the growl of approval from the Benches opposite but this is precisely the argument that we will have again and again in the weeks and months to come. The problem is that a system that started off as a non-confrontational, non-legal settlement of disputes has become peopled by m’learned friends at great expense. We are trying to move away from a legalistic approach to settling disputes to one that will settle more by arbitration, conciliation and mediation.

[Lord Scott of Foscote]

My Lords, the accessibility of a civil justice system is one of the features of the structure of the administration of justice that every civilised country ought to provide for its citizens. Is not the danger of a fee structure system that the fees might be set at too high a level, thereby denying access to justice to those unfortunates who could not afford such a fee?

[Lord McNally]

My Lords, that is precisely why we are consulting and taking a further impact assessment—so that we will have a fee structure that will not have the detrimental effects the noble and learned Lord is suggesting.

Prisoners: Voting

Debate between Lord Scott of Foscote and Lord McNally

Monday 18th October 2010 Lords Chamber

[Lord McNally]

I can absolutely assure the noble Baroness that no such fault line exists. As I have explained already, over a period of five months we have been looking at the situation and listening to various points of view. There is a Council of Ministers meeting on 30 November and we will update that council meeting in due course. We have not been unduly laggard in looking at the issue and, as I have said, the work is continuing.

[Lord Scott of Foscote]

Is the Minister aware that the rulings of the Strasbourg court are not binding on our domestic courts? Section 2(1)(a) of the Act states that Strasbourg court rulings should be taken into account, but an amendment to make them binding was rejected by this House and was never part of the Bill. Is the Minister aware also that the Hirst (No. 2) judgments contained a dissenting opinion from five of the 17 judges, including Judge Costa, and that in the opinion of many, including myself, the dissenting opinions are far more convincing than those of the majority? In these circumstances, does the Minister agree that it is not open to the Strasbourg court to add to the human rights enshrined in the convention in the manner in which it from time to time does, and that, so far as the issues in the present case are concerned, the Government should do no more than simply reaffirm the present position? Does the Minister finally agree—

[Lord Scott of Foscote]

Does the Minister finally agree that the Government must govern this country according to the laws in force in this country without regard to the occasional extravagances of the Strasbourg court?

[Lord McNally]

My Lords, one of the values of Questions like that of the noble Lord, Lord Ramsbotham, is that it provokes interventions such as that. It means that we get, for free, legal opinions that would on normal occasions cost us a fortune.