Judicial Review and Courts Bill

Debate between Lord Thomas of Cwmgiedd and Lord Faulks

Committee stage
Monday 21st February 2022 Lords Chamber

[Lord Thomas of Cwmgiedd (CB)]

My Lords, I entirely support the amendments put forward, for the reasons that have been given. I do not want to add to them. It seems odd to give judges discretion and say that we trust them, then immediately circumscribe what they can do.

That leads to my concern about new Section 29A(10). When listening to the Minister earlier, I asked myself why new Section 29A(8) was there because all the points are perfectly obvious. I wonder whether we are looking at a new technique here being laid down for future use. Do you list perfectly obvious things in new subsection (8) to bring in the killer in new subsection (10)? I hope the Minister can assure us that we are not going to see in any future legislation dealing with judicial review—who knows whether there will be any—the codification of perfectly obvious principles as a means of bringing in by the back door what one sees here in new subsection (10).

[Lord Faulks (Non-Afl)]

Perhaps I might briefly add to that point before the noble and learned Lord, Lord Falconer, speaks. An absolutely classic example of legislating for discretion would be Section 33 of the Limitation Act, which courts are applying every single day of the week, which lists a large number of factors which the court may take into account and concludes by saying that it may take any other thing into account. Although I absolutely take the point made by the noble and learned Lord, Lord Thomas, there is nothing particularly unusual about setting out in detail the discretion and then, nevertheless, allowing the court to take into account other matters.

Counter-Terrorism and Sentencing Bill

Debate between Lord Thomas of Cwmgiedd and Lord Faulks

Committee stage & Committee: 2nd sitting (Hansard) & Committee: 2nd sitting (Hansard): House of Lords
Tuesday 9th February 2021 Lords Chamber

[Lord Thomas of Cwmgiedd (CB) [V]]

My Lords, the noble Lord, Lord Anderson of Ipswich, spoke with such eloquence in making all the points that I can confine myself to making four short points.

First, as he rightly stressed, this is an important part of the conditions for TPIMs because it enables a judge and the Home Secretary, when making the decision, to concentrate on the factual evidence in relation to terrorist activity. The other conditions are more difficult to establish, or it might be more a question of judgment, but this at least concentrates on the facts.

Secondly, the amendment seeks what some may feel is an overgenerous compromise. I do not think so; I think that it is right to say that, for the first and initial period, a lower standard can be acceptable.

However, thirdly, that cannot be acceptable when one is looking at longer periods where a person’s liberty is to be constrained—particularly with the amendment that we will come to next, which concerns the indefinite detention period.

Fourthly, and finally, it seems to me that there can be no justification for making such a change unless there is evidence. Indeed, what was said about the position in the other place has been clearly set out.

I ask the Minister to set out fully what he believes is the evidence for this change. If he cannot do so in public on this occasion, there must be a means of informing those who are interested in this matter of the evidence so that it can be carefully reviewed before we impose on people accused of obviously very serious issues a standard of proof that really is completely unacceptable in any civilised society.

[Lord Faulks (Non-Afl) [V]]

My Lords, the noble Lord, Lord Anderson, has given your Lordships a very clear and succinct history of control orders and TPIMs—as one would expect, given his experience. He pointed out very fairly that control orders had the very same test that it is now proposed in the Bill should be used to decide whether a TPIM is appropriate. It is also worth pointing out that control orders were highly controversial and subject to a considerable number of challenges in the courts to see whether they survived a proper challenge based on the European Court of Human Rights and the convention. They survived that, which will reassure your Lordships.

I accept that the amendment put forward by the noble Lord, Lord Anderson, which is supported by the noble and learned Lord, Lord Thomas, is relatively modest, and I understand the reasoning for it, whereas the amendment put forward by the noble and learned Lord, Lord Falconer, goes rather further and seems to involve a degree of subjectivity—although I will listen with interest to what he says—and that subjectivity might be difficult to satisfy.