Crime and Courts Bill [HL]

Lord Thomas of Gresford Excerpts

Wednesday 12th December 2012 Lords Chamber

[Baroness Smith of Basildon]

My Lords, I am not disputing that. I am disputing that that should be taken in context with the other information. We have been waiting for almost a year for the Government’s consultation response. It is a disgrace that it has not been made available to the House. It is for the Government to justify that and not me.

[Lord Thomas of Gresford]

We would not sully our ears with the expressions used in the instance that the noble Baroness has given. Was it not abusive? Was it not threatening? Was it merely insulting?

[Baroness Smith of Basildon]

My understanding of the case concerning Mr Braithewaite and Miss Williams is that the defendant was charged and convicted of a Section 5 Public Order Act offence for the homophobic insults. There were other offences as well, but homophobic insults were a significant part of that prosecution. It is for the Government to bring forward what they intend to do. I am not against change or further discussion on this but, on the evidence today, I want to see the evidence from the Government in much greater detail and to know exactly what the outcomes and the consequences would be for those who the law currently protects.

Justice and Security Bill [HL]

Lord Thomas of Gresford Excerpts

Monday 9th July 2012 Lords Chamber

[Lord Lester of Herne Hill]

My Lords, I rise as probably the least knowledgeable and competent person to say much about this but I do so because of my experience as a member of the Joint Committee on Human Rights. I am glad that the noble Lord, Lord Butler of Brockwell, has raised the issue. I do not expect an answer to my question this evening but it would be helpful if before Report stage what I am about to ask could be answered.

I am mystified about the principles that should apply not to the ISC but to parliamentary Select Committees generally. When we come to consider the Norwich Pharmacal matter, we will be considering the extent to which courts should not be able to order the disclosure of documents that might show serious wrongdoing of the kind indicated in the amendment of my noble friend Lady Hamwee because of the harm to national security or international relations. To that extent, the Executive would be less accountable to the courts than at present. The question then arises of the extent to which the Executive should be accountable to Parliament and especially to parliamentary committees. I understand why the committee we are concerned with should be treated differently from the ordinary parliamentary Select Committee for very good reasons to do with Clause 2 of the Bill. My question is: what ought to be the position with other parliamentary Select Committees? The noble Lord, Lord Campbell-Savours, has tabled an amendment dealing with that general issue.

It would be very desirable if there were a practice direction of some kind, whether in the Ministerial Code or elsewhere, that indicated what needs to be done when a Select Committee seeks evidence of a non-sensitive kind and a security service gives an informed view not about policy but about other matters to the committee. I do not understand whether any practice is laid down on how that should be done and what the limits are when a Select Committee seeks such evidence.

Under the previous Government, when Andrew Dismore was chairman of the committee, we dealt with administrative detention without trial. We tried to get help from the security services. We were helped to some extent by the police service and we took evidence in camera from the police on some matters to do with counterterrorism. However, we were told that we could not do that with the intelligence and security services.

As I said, I do not expect an answer now, but it would be helpful if, between now and Report, we could be informed by letter of what the Government consider to be the general position on those issues. Certainly, if there is wrongdoing of a serious kind involving the sorts of issues covered by the amendment of my noble friend Lady Hamwee, and if that sort of material is not to be shown either to this or any other parliamentary committee, and is to be barred from, or limited in, legal proceedings, I am troubled by the lack of accountability of the Executive to the judicial branch of government as well as to Parliament itself.

[Lord Thomas of Gresford]

My Lords, my question to the Minister is: what is meant by “proper” in paragraph 3(3)(b) of Schedule 1? One has to postulate a situation where a Select Committee, for example on health, asks for disclosure from a Minister, who says, “I would love to give you the information but it would not be proper—it would be contrary to propriety”. What does the word mean? Proper in what sense? Would it be immoral or illegal? What is the word supposed to convey? I simply do not understand and would be grateful if the Minister would help me.

[Baroness Smith of Basildon]

My Lords, I think that there is unanimity around the House about the questions that need to be addressed in connection with Amendment 24. Our concern is that the Government may have lowered the threshold for proving that information should be withheld. Under the Bill, the Secretary of State will decide whether information is too sensitive to disclose or is of such a nature that it would not be proper to disclose it to a departmental Select Committee. However, where the Intelligence Services Act 1994 prevents the Secretary of State vetoing the disclosure of information on grounds of national security alone, now national security is just one of the conditions under which the Secretary of State may use their veto. I support the amendment of the noble Marquess, Lord Lothian, and the noble Lord, Lord Butler of Brockwell, because I share their curiosity about what a consideration that it is not proper to disclose information to a departmental Select Committee would mean in practice, and why the provision of it not being proper to do so is seen as a necessary alternative to non-disclosure on the grounds that the information is sensitive and affects national security. I would be grateful if the Minister would look at this again.

Amendment 25 in the name of the noble Baroness, Lady Hamwee, disallows the use of the ministerial veto on disclosure of information when it refers to conduct that would amount to a breach of international law. I am curious about how that would work in practice. Who would determine whether the conduct to which the information relates could amount to a breach of international law? I find it difficult to understand how a Secretary of State would make that judgment on the actions of her own Government. I understand the principle behind it but I am not clear how it would work in practice. If the Minister would explain what is meant by “proper”, that would be very helpful.

--- Later in debate ---

[Lord Henley]

I do not think that the noble Lord, dare I say it, listened to what I was saying earlier about this amendment. It may be that we need to look at the drafting. I have given a commitment to the Committee that we will deal with that in due course and look to see whether we have got it right. As I explained—I have to go back into my speech—I think that that is probably the right way to proceed. If the noble Lord is accusing me of taking a Humpty-Dumpty approach, well, Humpty Dumpty was not always that wrong with some of these things; certainty in terms of when one is speaking at the Dispatch Box and defining what words mean. Anyway, if I say it means that, that is what it does mean—that, I think, is what the Humpty-Dumpty approach is.

I do not think that I can add much more to my response to the noble Lord and other noble Lords. I appreciate the intention behind Amendment 25. I appreciate what my noble friend is doing but I hope that the noble Lord will feel able to withdraw his amendment at this stage.

[Lord Thomas of Gresford]

As the noble Lord, Lord Henley, was speaking I wondered whether the word, “proper” is supposed to mean “contrary to convention”. It would be impossible to have a convention across all departments where there are Select Committees so it was conventional in one department to release this information but it might be conventional in another to release more or less. It would be almost impossible to get a standard of disclosure of information across the board which it is proper to disclose. I am very grateful for what the Minister has said on that issue.

[Lord Butler of Brockwell]

I am grateful to the Minister for saying that he will, with counsel, look at the drafting of this again, because it is clear from the contributions that were made to the debate that many of us do not understand entirely what is meant. I do, indeed, remember the Osmotherley Rules very well. I did not draft them myself—not surprisingly they were drafted by an official called Edward Osmotherley—but I do remember invoking them before Select Committees on various occasions and I do recognise as valid categories the categories that the Minister has mentioned. However, I think that the noble Lords, Lord Lester and Lord Thomas, have a good point when they say that, as drafted, this appears to be entirely subjective on the part of the Minister and the Minister, under this power, would be able to withhold anything which in his opinion was not proper. The Osmotherley Rules were instructions from Ministers to officials, but were, I think, generally accepted by Select Committees—not always; they were sometimes challenged—and were certainly the rules by which officials were guided. They were known and became accepted. The way that this is drafted introduces a more subjective element.

On the basis that the Minister has said he will look at the drafting and also that he assured the House that it is intended that the Minister will use this discretion sparingly, I beg leave to withdraw the amendment.

Justice and Security Bill [HL]

Lord Thomas of Gresford Excerpts

Monday 9th July 2012 Lords Chamber

[Lord Thomas of Gresford]

My Lords, perhaps I may follow and develop the argument made by my noble friend Lady Hamwee in her final remarks and deal with some of the important features of the Bill.

There is a constitutional principle that the Executive and every agency of government are accountable to Parliament. Parliament is supreme, not the Executive, and it is to Parliament that accountability must be made. If the ISC is to operate effectively and to act as a deterrent against malpractice, it should have the power to examine any document that is held by the security services. As my noble friend said, the ISC members will be nominated by the Prime Minister and approved by Parliament and, presumably, will be security-cleared to the necessary level. If they are to be limited in the documents that they can inspect by reason of the diktat of a Minister, as advised by the security services, there is a breach of constitutional principle. It is not appropriate for there to be legislation to prevent government accountability to Parliament by allowing Ministers to operate in that way.

Under the format of paragraph 3 of Schedule 1, the Director-General of the Security Service and others, if asked by the ISC to disclose any information, can arrange for it to be made available. However, they can also inform the ISC that the information cannot be disclosed because the Secretary of State has decided that it should not be disclosed—the decision of the Secretary of State, presumably, being advised by the security services. Amendment 19 seeks to delete sub-paragraph (1)(b).

If the ISC asks a government department or any part of it to disclose information, the relevant Minister of the Crown—who, under sub-paragraph (5), may be any Minister—must arrange for that information to be made available in accordance with the memorandum of understanding or, as the Bill stands, inform the ISC that the information cannot be disclosed because the Minister of the Crown has decided that it should not be disclosed. Therefore Amendment 20 seeks to delete sub-paragraph (2)(b)

Under sub-paragraph (3), the Minister of the Crown can take the decision not to disclose only if he considers that it is sensitive information and information which, in the interests of national security, should not be disclosed to the ISC. So, again, presumably he is acting on the advice of the security services in coming to the conclusion as to whether it is sensitive information or as to what the interests of national security are.

Sub-paragraph (3)(b) of paragraph 3 states:

“it is information of such a nature that, if the Minister were requested to produce it before a Departmental Select Committee of the House of Commons, the Minister would consider (on grounds which were not limited to national security)”.

So, presumably, on the Minister’s say-so and without advice from the security services, it would be proper for that information not to be released.

The Secretary of State or Minister of the Crown can decide, either on the advice of the security services or on their own initiative, that the ISC is not very important and they can just say, “No, it cannot see this, even if it wants to. It will have to come to its conclusions simply on the documentation that I”—the Minister, acting on the advice of the security services—“think it should see”. Is that what the Bill is about? Is that its purpose? Are we debating the functions, procedures and the setting up of the ISC so that a Minister of the Crown, advised by the security services, can withhold information from it? It is constitutionally inappropriate and I firmly urge these amendments upon the Government.

[Lord Campbell-Savours]

My Lords, I have great sympathy with the speech of the noble Lord, Lord Thomas of Gresford. It addresses a fundamental flaw in the Bill.

I shall speak to Amendments 22 and 26. Amendment 22 deals with sub-paragraph (3), which states:

“A Minister of the Crown may decide under sub-paragraph (1)(b) … that information should not be disclosed only if the Minister considers that”—

as the noble Lord, Lord Thomas of Gresford, said—

“(b) it is information of such a nature that, if the Minister were requested to produce it before a Departmental Select Committee of the House of Commons, the Minister would consider (on grounds which were not limited to national security) it proper not to do so”.

If I remember rightly, that is currently the position under the present ISC, notwithstanding the statement in the Bill. I have not always understood exactly what such circumstances are. I have often wondered what would be the circumstances in which Ministers would take that action. Perhaps the Minister will give an explanation today.

The noble Lord, Lord Thomas of Gresford, referred to decisions being taken on a whim. Now that that provision in paragraph 3(3) is be enshrined in the Bill and subsequently become law, we need something more substantial so that we know exactly what is intended by it.

I turn now to the part of the Bill that really worries me—the phrase,

“relevant Minister of the Crown”.

As the noble Lord, Lord Thomas of Gresford, said, we are not given an indication of who is to be involved. Are we talking about Parliamentary Under-Secretaries or Ministers of State? The noble Lord, Lord Henley, is, I understand, a Parliamentary Under-Secretary.

Crime and Courts Bill [HL]

Lord Thomas of Gresford Excerpts

Wednesday 20th June 2012 Lords Chamber

[Lord Rosser]

My Lords, the two paragraphs of Clause 5 to which these amendments relate provide for a chief officer of a UK police force or a UK law enforcement agency to perform a task if the director-general of the National Crime Agency requests, and for the director-general of the National Crime Agency to perform a task if requested to do so by a chief officer of a UK police force or a UK law enforcement agency. In respect of the references in the two paragraphs in question to,

“the chief officer of a UK police force”,

there is no reference to any requirement at all for the elected police and crime commissioner for that police force to be consulted by the person requesting that a task be performed, whether it be the director-general of the National Crime Agency or the chief officer of the commissioner’s own police force. So far there has been no explanation of or justification for this omission despite the fact that under the Police Reform and Social Responsibility Act 2011 a police and crime commissioner for a police area has a statutory duty to secure the maintenance of the police force for their area, ensure that the police force is efficient and effective and hold the chief constable to account for a wide range of duties and responsibilities, including the effectiveness and efficiency of the chief constable’s arrangements for co-operating with other persons in the exercise of the chief constable’s functions.

The police and crime commissioner will also be responsible for issuing a police and crime plan, which is a plan that is required by law to set out a number of matters, including the policing of the police area which the chief officer of police is to provide. Yet it would appear as though it is possible under the terms of the Bill for the director-general of the National Crime Agency to come to an agreement with the chief officer of a UK police force for that chief officer to perform a task on behalf of the director-general, and a task of unspecified magnitude, scope or significance in relation to resources or impact; or, alternatively, for the director-general of the National Crime Agency to perform a task on behalf of the chief officer of a UK police force—once again, of unspecified magnitude, scope or significance—without any apparent duty in either case to consult the elected police and crime commissioner despite the significant statutory responsibilities the police and crime commissioner has in relation to their police force. If the director-general of the National Crime Agency was requesting the chief officer of a UK police force to carry out a task which could well have an impact on the efficiency and effectiveness of the police force in question, or on the ability to deliver or adhere to the police and crime plan, one would have thought that it was a matter on which the director-general of the National Crime Agency should be required to consult the police and crime commissioner.

Likewise, if the chief officer of a UK police force found it necessary to request the director-general of the National Crime Agency to perform a task on behalf, or in support, of that police force, there should be a duty on the chief officer to consult the police and crime commissioner, who might want to satisfy himself or herself that this was not a task that their own police force should be competent and capable of performing and that the request to the director-general was not in reality seeking to cover up a weakness in the performance of their police force. In this context, it is worth pointing out, for example, that Part 4 of Schedule 3 to the Bill provides for the director-general of the National Crime Agency to make arrangements with the elected police and crime commissioner for the NCA to use facilities made available by that police and crime commissioner’s police force. In addition, the Secretary of State will also be required to consult PCCs in determining the NCA’s strategic priorities, and a similar requirement is placed on the director-general of the NCA in preparing its annual plan. However, there is apparently no requirement for the director-general to notify or consult PCCs on voluntary agreements with chief constables or before using their powers to direct chief constables.

I will obviously await the Minister’s response to all the points that I have made. I suspect he is not going to say that I have drawn attention to gaps in the Bill that the Government now intend to address. However, I wait to see whether the argument will be that responding to requests referred to in Clause 5 is, for some reason, nothing whatever to do with the elected police and crime commissioner, or whether the Minister is going to say either that there are other provisions in the Bill that would require the police and crime commissioner to be consulted—or his or her consent sought—or that there are provisions in the Police Reform and Social Responsibility Act 2011 that would require the commissioner to be consulted, or his or her consent sought, such as in paragraph 7 of Schedule 2 to that Act, which states:

“A chief constable may do anything which is calculated to facilitate, or is conducive or incidental to, the exercise of the functions of chief constable”,

and,

“That includes … entering into contracts and other agreements (whether legally binding or not), but only with the consent of the relevant police and crime commissioner”.

Alternatively, perhaps the Minister is going to say in response that the points I have raised will be covered in the elusive framework document that he has so far been unable to produce. I await his response. I beg to move.

[Lord Thomas of Gresford]

These amendments concern something I raised at Second Reading—the relationship between the National Crime Agency, the police commissioner and the chief constable of a police force. I still do not understand just how that is to be worked out. We tabled amendments suggesting a protocol, which we dealt with in Committee on Monday, and learnt that a protocol is something to be discussed as an operational matter once the Bill is in force. Does the police commissioner come anywhere within the architecture of the Bill, or is the commissioner in an outhouse? I just do not understand where he is.

Crime and Courts Bill [HL]

Lord Thomas of Gresford Excerpts

Monday 18th June 2012 Lords Chamber

[Baroness Hamwee]

This amendment concerns the same paragraph of the Bill with regard to specials, whom I am beginning to think of as the National Crime Agency’s equivalent of interns.

Paragraph 14(4)(c) provides that the NCA is not prevented from,

“providing for the payment of sums to, or in respect of, current or former NCA specials to compensate for loss of salary attributable to injury or death resulting from the performance of duties as NCA specials”.

This is a probing amendment, the aim of which is to seek a better understanding of the provision. I assume that we are talking here about salary from their normal job, as it were, given that they are not being paid for being specials.

I was prompted to table the amendment by the thought that any claim that is made following injury or death in the course of a special’s employment is likely to be for far more than his salary. I am not sure that it is possible to exclude a claim for the normal areas of compensation that would arise in the event of injury. It certainly seems to me that it is not proper to do so. Why is this provision required? Is it as narrow as I have understood it to be? If it needs to be stated because the powers of the NCA would not be adequate if it were not, should it not be stated in full in the way that I have indicated? I beg to move.

[Lord Thomas of Gresford]

I speak in support of this amendment. When I looked at it, I thought that I would not advise anybody to become a special in the National Crime Agency as not only do you not get paid but even if you are injured or killed in the course of your employment as a special, you get nothing other than compensation for salary. Therefore, if you are not a salaried person—for example, if you are self-employed—you get nothing. You get nothing for the injury itself. Presumably, the Government have in mind that you would sue somebody, whether it is themselves or the criminal concerned who caused the injury or death. Do they have in mind that a person should go to the Criminal Injuries Compensation Board to recover compensation? Putting in compensation for salary is so limiting that there must be some purpose behind that wording. I look forward to hearing it.

[Earl Attlee]

My Lords, I am grateful to my noble friend for moving her amendment. It is, of course, important that the National Crime Agency is able adequately to provide for the rare and very sad occasions when an NCA special is injured or killed in the line of duty. I would like to point out that when I joined the TA I did not know that I was going to be paid. I suddenly started receiving giro cheques when I was at school which were double the recommended term’s pocket money. I spent about 18 years in the TA as a junior NCO. If, sadly, I had been injured, I would have expected that a war pension would be paid on the basis of my rank, which stayed very junior for the first 18 years. Given the different status of NCA specials within the agency, the Bill expressly provides for the NCA to be able to pay sums by way of compensation for loss of salary in such an event. The details of that scheme will need to be drawn up over the coming months.

I suspect my noble friend will find that the inverse speaking time law applies to this amendment as well. She questioned whether the compensation should be limited to loss of salary alone. That is a fair question. An NCA special injured in the line of duty could, I accept, suffer other financial loss. If my noble friend would agree to withdraw her amendment, I should be happy to consider this point in more detail over the summer. At this stage, I cannot commit to bringing forward a government amendment on Report but I can certainly assure her that we will carefully consider the points she has raised and let her know the outcome of that consideration in advance of the next stage.

Crime and Courts Bill [HL]

Lord Thomas of Gresford Excerpts

Monday 28th May 2012 Lords Chamber

[Lord Thomas of Gresford]

First, perhaps I may say a word or two on Part 1. The issue which has emerged in the debate is what the noble Lord, Lord Dear, called constructive tension; my noble friend Lady Hamwee referred to it as tasking arrangements. I agree that there is an utter lack of clarity in the Bill about the relationship between the proposed NCA, police and crime commissioners and chief constables. It would be very helpful if the noble Lord, Lord Henley, could bring before the House, at Report or in Committee, a draft protocol. Surely that is what will have to operate after the implementation of these proposals. There has to be machinery to sort out the different arrangements which will arise. I agree with everything that my noble friends Lady Hamwee and Lady Doocey and the noble Lords, Lord Ramsbotham, Lord Condon, Lord Prescott and Lord Harris, said with some passion on this topic.

I turn to Part 2 and start with the issue of diversity. The noble Baroness, Lady Jay, was correct when she said that it is the traditional career path which results in the judiciary which we have today. The judiciary does not reflect the diversity of today's society; it reflects the lack of diversity in the legal profession 30 to 40 years ago, when I was a junior member of the Bar, or even before that, when I was a solicitor. I recall that I had a lady pupil, which was regarded as a considerable improvement on the situation in the small Bar I was in at Chester; she was the only lady in the place at the time.

The traditional career path is that the judiciary is appointed from a core body of legal practitioners, mainly from the Bar, who have demonstrated judgment and integrity over the years of their practice. You might say that they have shown their merit. They are appointed in their mid 40s or early 50s to the county court Bench or to the High Court Bench. If they are fortunate, they become members of the Court of Appeal in their late 50s. If they are even more fortunate, a select few will reach the Supreme Court in their middle 60s. Some noble and learned Lords present may have achieved that rank before that age, but that is the generality.

It has only been possible in the past year or two to choose someone who has not followed the traditional career path to be a member of the Supreme Court, but there has been only one appointment so far. That is one of the problems that arose when we were discussing the retirement age of Supreme Court justices at 70, which does not give anybody a sufficiently lengthy tenure in that role. I agree with the noble Baroness, Lady Jay, that the Constitution Committee was correct in saying that the age of retirement should be pushed to 75 for the Supreme Court and to 70 in other cases. I am not even sure whether that is right or whether that is not a bit of ageism. We talk about discrimination on the grounds of gender, race or whatever: what about age? Should it not be on merit that people are forced to retire, rather than otherwise?

[Noble Lords]

Hear, hear!

[Lord Thomas of Gresford]

That goes down well in the House of Lords, it may not go down well anywhere else.

What is the alternative? A professional judiciary. There are models all over the world. You start off as a judge’s clerk when you get your degree. You take your first steps in your late 20s and get appointed to the local Bench. You climb the ladder. There is no need for lay magistrates. Eventually, you get a judicial position and there you are as a judge. Perhaps you can introduce diversity into such a judiciary rather more easily than you can in our system of the traditional career path, but is it desirable?

The noble and learned Lord, Lord Lloyd, opposed the career judiciary, and I agree with him. What I do not think is right is to introduce the concept of part-time judges to increase diversity, if that is the purpose behind it. You cannot job-share on the Bench. I recall being in a foreign jurisdiction, we were there for a fortnight, and on the third day the judge disappeared for coffee and never came back. When we went to see what he was doing, he was with his golf equipment in a golf bag, and he was flying out for the rest of the time we were there in order to play golf. We could not continue with the case. So both sides had to troop back to this country. You cannot job-share. If the purpose of having part-time judges is to increase diversity, it is not the right approach.

I now turn to county courts, of which I have great experience. I share the doubts expressed by the noble and learned Baroness, Lady Butler-Sloss. A single court may have some administrative advantages. However, there are two tests. First, does it increase or decrease access to justice? Secondly, does it improve the quality of the decision-making in relation to a particular case? As to the first question about access to justice, that depends on the maintenance of buildings and offices in every part. The noble and learned Lord, Lord Mackay, referred to the name “county”. The reason why we had county courts was that they were immediately available, not just the courts themselves but the offices where you could get writs and warrants—the noble Lord, Lord Elystan-Morgan, and I remember the one in Wrexham very well. That meant that, without witnesses having to travel too far, a case could be determined within the community. Secondly, on the quality of the decision, there is the continuity of the judge in a particular case. You did not apply on one day for an interim order and on another day for another interim order, only to find yourself in front of different judges when you got to the end of the process. You had continuity of the judge. Sometimes that was not a very advantageous thing, but that is what you had—the noble Lord, Lord Elystan-Morgan, knows exactly what I am thinking. So I am not sure about county courts. I hope that it is not just a cost-saving measure and that some real principle is behind it.

As to family courts, I welcome them. The expense and delay in public law cases has been recognised in the Norgrove report. Proceedings have indeed got out of hand, with expert after expert being called and cases dragging on in a way that does not assist—I think there is a delay of 55 weeks at the moment to get a case before the court. Can the Minister say what has happened to the Family Justice Board that was promised this month in the Government’s response to the Norgrove report? Hopefully that will be able to refocus private cases between partners and children on mediation and dispute resolution, which I hope is the way that we are going to go.

I went on the London Legal walk a week ago today to raise money, ironically, for CABs and law centres, which we debated at much length. I had the opportunity of discussing the present situation with some family law practitioners. I was told that district judges are quicker; magistrates are much slower but are more easily persuaded; and litigants who appear in person will inevitably make a case last twice as long—but I do not want to go back over areas that we covered extensively before.

As regards television, will it cause advocates to act differently in court? I doubt it. I do not know what your Lordships’ experience is but in this place I am not conscious of television cameras when I am speaking. I am conscious of them only when I am sitting next to the person who is speaking. That probably accords with your Lordships’ experience, particularly if the person I am sitting next to goes on for some time. Oh, I am being kicked. As for the drama of television performances, in the political field Prime Minister’s Questions must take most of the viewing time. The rest of the parliamentary proceedings are a cure for insomnia in the middle of the night. It is the drama of Prime Minister’s Questions that attracts an audience.

Where is that in the courts? In the criminal court, it is in the cross-examination of major witnesses, particularly victims. We can see that in the Leveson inquiry at the moment, as we can again with the cross-examination of the men in the dock. Yet the most dramatic moment is undoubtedly the delivery of the verdict. I can tell your Lordships that that can be hugely dramatic. People faint; there are screams and shouts. Nothing on the stage, in my experience, or in any film I have ever seen can match the drama of a jury returning a verdict. That is the moment, but of course it cannot be allowed on television. What we must not have is for the public to usurp the jury in any way to come to a conclusion, perhaps to vote over the telephone. Perhaps the Ministry might think it a good idea to have a number that everybody phones to give their verdict, and then it could collect the proceeds from the phone calls. That is not the way to proceed. We must keep the tightest possible control on television in the court-room. I agree that it would be right to have sentencing remarks. If anybody wants to watch arguments or judgments in the Court of Appeal that would, like parliamentary proceedings, be a cure for insomnia.

Queen’s Speech

Lord Thomas of Gresford Excerpts

Tuesday 15th May 2012 Lords Chamber

[Lord Thomas of Gresford]

I am very sorry to hear of the woes of the LTA and Sport England. I confess that I was a little disappointed not to hear from Her Majesty congratulations to the Welsh national rugby team on winning the triple crown and the grand slam and good wishes on going to Australia shortly, where no doubt the reputation of British sport will be restored.

In the field of law reform, I very much welcome the Defamation Bill, to which the noble Lord, Lord McNally, referred. The Bill is based on the tireless and persistent work of my noble friend Lord Lester, and I hope that it will dispel the chilling effect on freedom of speech of an overworked and out of date branch of the law. I hope that it will also end libel tourism, whereby our courts are used to determine disputes about the reputations of people of whom nobody has ever heard. People come here from abroad to litigate on these matters.

There is one Bill that I look forward to with some interest. The gracious Speech stated that legislation would be introduced to strengthen oversight “of” the security services. I wondered whether it was a typo and the Bill would set out to strengthen oversight “by” the security services; the wording seemed curious.

I will look with considerable care at any provisions that are designed to extend closed proceedings to civil cases by the use of special advocates. The vast majority of the special advocates who currently appear in criminal immigration cases are wholly against such an extension, and no satisfactory solution has yet been devised or put forward in this sensitive area. In civil cases it is not acceptable that a judge who decides a case between parties—very often a claimant is suing a government department—should be shown secret information that is never disclosed to the claimant and which he cannot answer in any way. It is quite wrong that a judge should have such information on which to base his judgment. It is not like a criminal case, where the jury makes the decision; in a civil case it is the judge. That is a very important distinction and I shall pursue that Bill with considerable interest.

It would be too much to expect that the Home Office would be without another of those heavy Bills that we are accustomed to wading through. I suppose that it must employ the Bill teams that it has accumulated over many years. The Crime and Courts Bill is a standard model. The National Crime Agency is proposed as an overarching agency to encompass the various agencies that already exist. We might hear something in the Bill about architecture; perhaps that phrase will come to us in due course. The Serious Organised Crime Agency has just reached its sixth birthday; it is only an infant. It merged the National Crime Squad, the National Criminal Intelligence Service, the National High Tech Crime Unit, the investigative and intelligence sections of HM Revenue and Customs on serious drug trafficking, and the Immigration Service’s responsibility for organised immigration crime. The Assets Recovery Agency, too, was made part of SOCA in 2008. The Serious Fraud Office escaped the overarching conglomeration, and it seems that it will escape again. We shall want to know: did SOCA fail? If so, why? What does the new overarching agency, which takes in all these bodies and has cross-government contacts, promise—except more employment?

No doubt somebody—if not the noble Lord, Lord Pannick, then another noble Lord—will put forward an amendment with an overarching mission statement that crime is bad and should be prevented, and I look forward to discussing the independence of the director-general and wading through the mire of functions and priorities, arguing about relationships with independent police forces, establishing frameworks and the hierarchies that we so love and that will tell us who is boss. We have the entirety of Schedule 3 to play with on this issue. I remember a World War II poster that some other noble Lords may recall: “Was Your Journey Really Necessary?”. It went along with “Careless Talk Costs Lives”, with a spook lurking behind every hedge. Is it necessary to introduce a National Crime Agency only six years after SOCA was brought into being?

The changes to bring county courts into a single county court and establish a single family court are, on the face of it, acceptable, but there is really only one test: does it improve or hinder access to justice? The whole point about county courts is that they were established in every county so that people could go to them and use them; similarly with family courts. A quick remedy can be obtained from a magistrates’ court in a family matter, which may take much longer in the Courts Service.

As for diversity in the judiciary, there is always concern. The test must still be simply one of merit in appointing judges. The diversity which arrived at the Bar in the 1970s is working its way through to the Bench in all areas and that concern, I hope, will become something of the past.

As for televising court proceedings, it so happens that last week I was lying on my back in the dentist’s as he was poised with his drill and I had all sorts of things in my mouth. He told me that he had to go to court as a witness in a case. He had never been to court and he was extremely apprehensive. I thought: “Apprehensive? My God, at least they are not going to drill into the nerve in your teeth to extract evidence from you!”. However, that just shows how little even the educated public understand about the way the courts system works. I welcome a limited introduction of television into courts. Like your Lordships’ proceedings, I think they will be viewed in the early hours of the morning by anoraks or people who cannot sleep, because the arguments in the Court of Appeal are not really much of an entertainment.

The gracious Speech was criticised by the noble Lord, Lord Hunt of Kings Heath, as being the thinnest of Queen’s Speeches and wholly irrelevant to people’s lives. There was nothing on growth or jobs, he said. Well, just look at the number of Bills that are there. The Government should be focused now on competent administration and on bedding down the changes that have already been made in the fields of education, welfare, health, legal services and the rest. These decisions have been made; now is the time to make the decisions work, by proper administrative action.

Police Reform and Social Responsibility Bill

Lord Thomas of Gresford Excerpts

Thursday 14th July 2011 Lords Chamber

Moved by

[Lord Thomas of Gresford]

308A: Clause 155, page 102, line 20, at end insert—
“(4AA) The Director of Public Prosecutions shall give consent if—
(a) the evidence establishes a realistic prospect of conviction and the prosecution would be in the public interest, or (b) the evidence raises a reasonable suspicion that an offence has been committed and that the suspect committed it, and the Director of Public Prosecutions is satisfied that there are reasonable grounds for believing that a continuing investigation will provide further evidence, within a reasonable period of time, so that all the evidence taken together is capable of establishing a realistic prospect of conviction.(4AB) In the case of consent granted under subsection (4AA)(b), the Director of Public Prosecutions shall keep that case under review, so that if evidence establishing a realistic prospect of conviction is not available within a reasonable period, the Director of Public Prosecutions shall take over and discontinue the case.”

[Lord Thomas of Gresford]

My Lords, I beg leave to move this amendment standing in my name and that of my noble friend Lord Macdonald, who like so many of us was here until late last night but is unavoidably abroad today.

Clause 155 is of importance as it ousts a long-held and apparently unfettered right of the private citizen to seek an arrest warrant, particularly in relation to offences of universal jurisdiction. For our part, we agree with the thrust of the change that has been made. As the prosecution of offences of universal jurisdiction—for example, war crimes—has always required law officer consent before a plea is entered in the court, why not require the Director of Public Prosecutions to consent on the same test before the process may be commenced at all? The alternative is the possibility that a case may proceed in the absence of any likelihood of law officer consent being forthcoming. It is a hopeless case. In that case, the prosecution will inevitably and quickly collapse when the consent of the law officers is withheld. It will have been nonsense from the start. That is most undesirable in such cases, which may have sensitive international connotations.

It seems to me that to require the prior consent of the Director of Public Prosecutions, as the clause does, merely creates an additional safeguard at no markedly adverse cost to justice. It has to be recognised that the proposal represents an inroad into the right of the citizen, unrestricted and unfettered, to seek arrest warrants, so it is particularly important, if this is an inroad, that the tests that the Director of Public Prosecutions will apply in considering the grant or the withholding of consent are crystal clear to the public, who to an extent are losing a right of unfettered access to the court. The purpose of the amendment is to achieve that clarity by putting those tests into the Bill.

What are the tests set out in the amendment? They are the tests that are used by Crown prosecutors in considering whether to charge individuals with criminal offences. This is appropriate because in a private prosecution the issuing of a warrant is analogous to the charging process in a conventional state prosecution. It is the actual issuing of the warrant that sets the ball rolling and puts the defendant under the jurisdiction of the court.

The full code test requires the prosecutor to consider whether the evidence before him raises a realistic prospect of conviction—in other words, that a reasonable tribunal would be more likely than not to convict upon that evidence. If the answer to that question is yes, there is a reasonable prospect of conviction and the prosecution would be in the public interest, a charge must follow.

The second test that is set out in the amendment is known as the threshold test. That is to be used in circumstances in which a prosecutor has enough material to suspect an individual of an offence and a real expectation that material satisfying the full code test will become available within a reasonable period. Noble Lords who were in Committee will recall that the former Attorney-General, the noble and learned Lord, Lord Goldsmith, suggested that the public interest test should come in at that stage. In fact, that is not the case in ordinary prosecutions in this country.

The Director of Public Prosecutions, Mr Keir Starmer, has said in evidence to the Public Bill Committee that he believes these tests, which are normally used in this country for granting consent to the issue of a warrant where universal jurisdiction offences are alleged, to be the appropriate tests. There was some issue in Committee about what he had actually said on this topic in the evidence that he gave to the Public Bill Committee. I quote a paragraph from that evidence:

“Quite rightly, a number of groups and individuals have said to us, ‘We may have practically everything. We just need to change the nature of the evidence and it won’t take long. You surely wouldn’t refuse us consent on that basis?’ So we have an exception that allows us to apply the threshold test—is there enough for reasonable suspicion and do we anticipate that, within a reasonable period, the evidential gap, as it were, could be plugged? There would then be sufficient evidence for a realistic prospect of conviction. That prompts the question, what is a reasonable period? It seems to us that it is probably best measured in the period between the application for arrest and the likely time that the Attorney-General will consider consent, because that is the existing window. That is the only period that can sensibly be used for that purpose”.—[Official Report, Commons, Police Reform and Social Responsibility Bill Committee, 20/1/11; col. 125.]

In Committee, my noble friend Lord Carlile of Berriew asked whether my noble friend Lord Macdonald had consulted Mr Starmer before he put down this amendment. The answer is yes, he had. Since the proceedings in Committee, my noble friend Lord Macdonald has spoken further to Mr Starmer about the matter and has received an indication from the Director of Public Prosecutions that he may convey to the House that the position he expressed in his evidence remains his position. Those are the tests, as set out in the amendment, that he would apply in considering consent to any application for a warrant in a case of universal jurisdiction.

[Lord Carlile of Berriew]

Will my noble friend be kind enough to confirm that the Director of Public Prosecutions has not indicated his assent to this amendment?

[Lord Thomas of Gresford]

If my learned noble friend will control himself for a moment, I shall come to that question in due course. Mr Starmer has indicated that he would wish to apply a public interest filter to both the tests that are set out in the amendment. Unlike an ordinary prosecution, Mr Starmer would wish to consider the public interest question on the threshold test as well as the full code test. His view is, of course, accepted.

[Lord Carlile of Berriew]

I am sorry but that is not good enough. Will my noble friend now answer my question? He has left hanging in the air the possibility that the Director of Public Prosecutions has indicated his agreement to this amendment. Is that true or untrue? I believe that it is untrue. The implication should not be left hanging in the air. Perhaps my noble friend will bear in mind that I am exercising more self-control than his last few sentences possibly justify.

[Lord Thomas of Gresford]

I must admit, my noble friend has always been known for his self-control. We have known each other for 30 or 40 years. The simple answer to his question is that, as I explained a moment ago, the Director of Public Prosecutions wishes to include in the guidance that he proposes to give the public interest test, at the first part, in considering the threshold test. He has said that binding guidance to that effect—

[Lord Soley]

I do not understand that. I want to know—it is important—whether the answer is yes or no.

[Lord Thomas of Gresford]

The answer is no; it is obvious. That is why I do not propose to press this amendment to a Division. It is as simple as that. That is what I was about to say. The Director of Public Prosecutions has indicated that his views will find their way into the Code for Crown Prosecutors once the legislation has been passed. We are content with that. Failure by Crown prosecutors to follow the code renders their decision-making susceptible to potential challenge by judicial review. I repeat, to make myself completely clear: I do not propose to press this matter to a Division. However, I am interested in the Minister’s response on this important, and clearly slightly divisive, question. I beg to move.

[Lord Pannick]

If nobody else wishes to speak on this matter, I certainly will. I was very pleased to hear from the noble Lord, Lord Thomas of Gresford, that he and the noble Lord, Lord Macdonald of River Glaven, agree with the thrust of Clause 155. As he stated, it is absurd to allow for an arrest warrant to be issued without the consent of the DPP when a private prosecution cannot proceed without the express consent of the Attorney-General. I oppose Amendment 308A. Its purport would be to include in the legislation criteria that would tell the director how to exercise his discretion in giving consent to the issue of an arrest warrant. As we have just heard as a result of the cross-examination techniques of the noble Lord, Lord Carlile, it is clear—as I understand the noble Lord, Lord Thomas—that the Director of Public Prosecutions does not wish to see his discretion confined in the legislation.

--- Later in debate ---

[The Advocate-General for Scotland (Lord Wallace of Tankerness)]

My Lords, I start by agreeing with the observations of the noble Lord, Lord Pannick, and the noble and learned Baroness, Lady Scotland, that it is important that we have an efficient system of prosecution available in this country to deal with cases, when the evidence is available, that relate not only to war crimes but also to many of the other offences listed in this clause in respect of which the United Kingdom has sought to assert universal jurisdiction. My noble friend Lord Palmer of Childs Hill made it clear that nothing in this clause seeks to end universal jurisdiction, nor indeed does it end the right of private prosecution for universal jurisdiction cases. Although such grave offences may well seem better suited to prosecution by the state, we think it right that citizens should be able to prosecute them.

Clause 155 allows anyone to apply to a court to initiate a private prosecution for universal jurisdiction offences by using arrest warrants where appropriate. It prevents a warrant being issued in cases where there is no realistic prospect of a viable prosecution taking place. As these are cases where issuing a warrant would achieve nothing, that is surely right. That point was made by my noble friend Lord Thomas of Gresford in moving his amendment. Indeed, with a singular exception, no one has dissented from the reform and from the purpose of Clause 155, which introduces the consent of the Director of Public Prosecutions. Through this amendment, what we are looking at is the question of whether the criteria applied and approach taken by the DPP in giving consent is something which should be on the face of the Bill. It is certainly the Government’s view, which I think is shared by most noble Lords who contributed to the debate, that it should not.

Those of us who have read the clear and cogent evidence given by the DPP to the Public Bill Committee in the other place will have seen clearly how, if Parliament passes this provision, he intends to exercise the duty of whether or not to give consent. He has also made it clear that he proposes to apply the same code tests to the evidential and public interest tests that are used for prosecutions generally, and he has further indicated, as has been mentioned in this debate, that where necessary he would apply the lesser standard of the threshold test. He indicated to the Public Bill Committee that he intends to publish guidelines so that everyone will know how he would deal with decisions on whether or not to give consent.

I, too, want to endorse the comments of noble Lords that we can have confidence that the DPP will exercise his discretion properly. He has a track record which gives us full confidence that he will do that. I share the view expressed by my noble friend Lord Carlile of Berriew, the noble Lord, Lord Pannick, and the noble and learned Baroness, Lady Scotland, that that is a good reason not to inhibit that discretion by putting things into statute. These tests are of general application and it is not clear why they should be set in stone by this amendment. Indeed, in Committee my noble friend Lord Carlile said that the amendment attempts,

“to fix in statutory stone something that is much more evolutionary—and needs to be”.—[Official Report, 16/6/11; col. 1011.]

We would not wish to stop that evolution, particularly given the commitment to transparency on the part of the DPP.

A further point was noted by the noble and learned Lord, Lord Goldsmith, in Committee and has been highlighted today, not least by the noble Lord, Lord Pannick. It relates to the public interest dimension of the threshold test, which is not mentioned in the amendment. I rather thought that my noble friend Lord Thomas was suggesting that it was not necessarily part of the threshold test. However, paragraph 5.12 of the Code for Crown Prosecutors states:

“If both parts of the Threshold Test are satisfied, prosecutors must apply the public interest stage of the Full Code Test based on the information available at that time”.

If we put something in statute, there is a danger of actually missing something out that is in the test as it applies at the moment. Perhaps that underlines why it is not desirable to have this in legislation.

My noble friend has indicated that he is not going to press his amendment, and I think that will meet with the general support of the House. I encourage him to confirm that.

[Lord Thomas of Gresford]

My Lords, a great deal of heat has been engendered in the course of the debate and I do not propose to add to it, although certain things were said about deconstructing this amendment with which I do not agree. However, I can take them up at a different time. Let me make it clear that there have been discussions between my noble friend Lord Macdonald and Mr Keir Starmer and they have come to a conclusion that is acceptable to both; namely, that the test should be published in guidance. No doubt it will be applied appropriately and in accordance with the traditions of this country, which are that the Director of Public Prosecutions and the Attorney-General should act in the public interest and not for the purposes of any political party. I beg leave to withdraw the amendment.

Amendment 308A withdrawn.

Police Reform and Social Responsibility Bill

Lord Thomas of Gresford Excerpts

Thursday 14th July 2011 Lords Chamber

Moved by

[Lord Thomas of Gresford]

244A: After Clause 96, insert the following new Clause—
“Exemption from civil proceedings for trespass brought by offender
(1) Section 329 of the Criminal Justice Act 2003 (civil proceedings for trespass to the person brought by offender) is amended as follows.
(2) In subsection (1)(b) at the end insert “, and”.
(3) After subsection (1)(b) insert—
“(c) at the material time, the defendant was not a constable acting in the course of his duty.””

[Lord Thomas of Gresford]

My Lords, the purpose of my amendment is to amend Section 329 of the Criminal Justice Act 2003 to exclude civil proceedings against the police for trespass against the person occasioned during an arrest. Section 329 was designed to cover a situation where an individual harms another while that other is attempting to commit a crime against the individual. It was enacted in response to the case of Tony Martin, who shot two intruders to his home who he thought were attempting a burglary. Section 329 provides that the court must give permission for an offender to bring a civil suit for an assault committed at the time and in the circumstances that the offender committed the act for which he was convicted. There was a great deal of public disquiet that a person engaged in burglary should be able to sue the householder who had injured him.

Under Section 329 of the Criminal Justice Act 2003, the defendant has a defence to proceedings brought by the injured offender if he believed that the offender was about to commit an offence, was in the course of committing an offence or had committed an offence and that the defendant’s actions were necessary to defend himself or another person, protect or recover property, prevent or stop the offence or catch or secure the conviction of the offender, but only if his action was not grossly disproportionate. In other words, it was designed to protect the householder who reacted instinctively against an intruder into his home and injured that person, so that no suit could lie in the civil courts unless the force used was completely disproportionate. Unfortunately, it appears that only the police have taken advantage of Section 329 when they injure an individual in the course of arresting him.

To cite the judgment in Anthony Adorian v Commissioner of Police of the Metropolis—2009, EWCA Civ 18, paragraph 7—the standard historically set for police action and

“painstakingly established in the course of two centuries and more, and fundamental to the civil rights enjoyed by the people of this country”,

is that,

“an arrest must be objectively justified and that no more force may be used in effecting it than is reasonably necessary”.

When a police officer arrests an individual, he may, in the historic development of the common law, use no more force than is reasonable. That was replaced by Section 329 which requires only that the police do not use “grossly disproportionate” force in arresting and that arrests are not in bad faith, even though they may be entirely unreasonable. In the Adorian case, Anthony Adorian suffered injuries in being arrested which were so severe that the force medical examiner concluded that he was unfit to be detained. His class of injury is associated with head-on car crashes or falls from a significant height, but the claimant, Adorian, had been walking at the moment of arrest and, as the judge said in his decision,

“there is at present no evidence suggesting either that he has brittle bones or that anything happened following his arrest which is capable of explaining the injuries”.

When Section 329 was debated in the course of the passage of the 2003 Act, the noble and learned Baroness, Lady Scotland of Asthal, introducing it, said that it,

“would strengthen the civil law to improve protection for victims of crime against civil claims for damages by offenders”,

and that it,

“benefits third parties who are not the direct victim of the offence, but who may have intervened to protect the victim or deter the criminal”.—[Official Report, 11/11/03; cols. 1307-8.].

There was no mention during the introduction of Section 329 in 2003 of the police. Nothing was said about the police.

Lord Justice Sedley, giving the judgment in the Adorian case to which I referred, said:

“Conscious of art. IX of the Bill of Rights 1689, we say only that there is no indication that Parliament was aware, much less intended, that what it was enacting would have this effect”.

Nobody thought that Section 329 would be used by police who had used unreasonable force in effecting the arrest of an individual. So there is a mismatch between criminal and civil proceedings as far as the police are concerned. It is a defence to a criminal charge of assaulting a police officer to show that you are protecting yourself against unreasonable force on the part of the police. In that situation, the police cannot argue that although the force was unreasonable, it was not grossly excessive. That is on the criminal side. But if the same person who had been arrested unreasonably by the police tried to sue them for civil trespass to the person, the police could and do rely on Section 329 and will succeed unless the claimant shows not that their actions were unreasonable—that an unreasonable amount of force had been used—but that that their actions were grossly disproportionate. In other words, a test to be applied for the householder defending himself against intruders has only been utilised, as far as research can pinpoint it, by the police to defend themselves against civil cases.

--- Later in debate ---

[Lord Wallace of Saltaire]

My Lords, this amendment is near identical to one tabled by the noble Lord, Lord Lester, during Committee stage of this Bill, and to which we gave a fairly full response at the time, so I will be brief. We promised the noble Lord in my response at the time that we would give the matter further consideration. Having done so, I am afraid that the advice we have received is that we remain unconvinced that we want to make an amendment that would make it easier for a convicted offender to sue the police for damages until we hear good answers to the questions and issues that I mentioned in Committee and which I will not repeat here.

We have looked at this again and take the view that the previous Government also took when the issue was raised in 2009. The House should be very clear that Section 329 does not give the police carte blanche to use disproportionate force. They are still subject to the criminal law which permits only reasonable force. All that Section 329 does is raise the bar by making it more difficult for criminals to get financial benefit from situations where they were the ones committing an imprisonable offence. It is reasonable and fair to treat a person who holds the office of constable in the same way for these purposes as any other member of the public. We should not rush to the assumption that it is an unintended consequence for the police to enjoy the protection of Section 329. As I have suggested, the police will inevitably be the people most likely to be able to invoke Section 329, given that their job involves confronting people who are in the course of committing imprisonable offences. The text of Section 329 supports this since subsection (5) specifically extends the protection to people who believe their act was necessary to

“apprehend, or secure the conviction, of the claimant after he had committed an offence”.

I therefore remain unconvinced that an amendment to Section 329 of the 2003 Act in the way proposed by the noble Lord is the right way forward. I hope that after the reassurance that we have again considered this issue the noble Lord will feel able to withdraw his amendment.

[Lord Thomas of Gresford]

I note that my noble friend Lord Lester raised this matter in the Policing and Crime Bill 2009, and that at that stage undertakings were given by the noble Lord, Lord Brett, on behalf of the then Government to consult the police on the unintended consequences. That was reiterated on Report, and in February of last year, the noble Lord, Lord Bach, said that consultation had not yet taken place, and it still has not taken place. I do not think that it is appropriate that this matter should be put on the shelf until we have another Bill into which it can be inserted. It is very important that the police should not be able to shelter behind a provision that clearly was not designed for them, as the noble Lord, Lord Bach, has just acknowledged. Consequently, I propose to test the opinion of the House.

Police (Detention and Bail) Bill

Lord Thomas of Gresford Excerpts

Tuesday 12th July 2011 Lords Chamber

[Baroness Browning]

My Lords, there have certainly been exchanges of correspondence with the Law Society. I am not sure whether that included the Bar Council, but the Law Society is certainly aware and has exchanged correspondence.

The Bill has only two clauses and a single effect: to return the law to where it was commonly understood to have been for the previous 25 years. I cannot emphasise strongly enough that all we are doing here is restoring the status quo ante. The Government are quite clear that the Bill in no way widens police powers. So that there is no doubt, it may assist the House if I say a little more about Clause 1, which contains the substantive provisions.

Subsection (1) of Clause 1 has the effect of making clear that all time limits and time periods in Part 4 of PACE are to be read as including time actually spent in detention and excluding time spent on bail. Those limits and periods include initial time limits under Section 41 of PACE, superintendents’ extensions under Section 42 and warrants of further detention under Sections 43 and 44.

Subsection (2) of Clause 1 amends Section 34(7) of PACE. That section provides that when a person returns to detention from bail, whether that return is previously arranged or is as a result of being arrested for breaching bail, the person is to be treated as having been arrested for the original offence and the remaining detention period will have deducted from it the time previously spent in detention. The amendment in subsection (2) makes clear that those calculations also exclude the time spent on bail.

Subsection (3) of Clause 1, as part of the Government’s wish to return the law to its previous position, gives the Bill retrospective effect. I realise that that may be a matter of concern to some of your Lordships as a matter of principle—I will come on to that. As your Lordships will have seen from the Explanatory Notes that accompany the Bill, the Government have considered very carefully the issue of retrospective effect. We have come to the firm conclusion that, if the Bill is to fulfil its objective of returning the law to the position that was commonly understood before the judgment of the High Court in Hookway, it must be expressed as always having had effect. That is because, as the many lawyers in your Lordships’ House will be aware, the Hookway judgment also had retrospective effect. If the Bill were not to apply to the past as well as the future, there would be very real questions as to the legality of many past detentions, both before and since the Hookway judgment.

[Lord Thomas of Gresford]

My Lords, I wonder whether the noble Minister would help me. She says that we would be going back to detentions in the past, but she referred earlier to restoring the status quo. Well, the status quo of Mr Justice McCombe is right: it was an illegal situation, where people were detained illegally.

[Baroness Browning]

I can understand why my noble friend makes that point, but the purpose of this Bill is to restore the legislation that comes out of PACE to the understanding that has been exercised for the last 25 years as to the conditions that apply to detention and bail. My point about the need for the Bill to be retrospective is that we are seeking not to add new elements to the Bill but to restore what we believe was Parliament’s intention in passing it, and what certainly has been the understanding for the past 25 years of those who have been engaged in the legal processes from all sides, both lawyers and the police. I would therefore say to my noble friend that, if we were not to make this retrospective, there could be many thousands of claims for unlawful detention, and a similarly large number of claims that evidence gathered after 96 hours had elapsed was no longer admissible. That would be a thoroughly unsatisfactory state of affairs, which could tie up the courts and the police service for thousands of hours.

I would also point to the conclusions of Liberty on this issue, in paragraph 8 of a widely circulated briefing that it prepared on the Bill. Liberty commented:

“We do not believe that the proposals are retrospective in their nature as they do not seek retrospectively to create a criminal offence, sanction or other burden. They would not in our view … fall foul of Article 7 of the European Convention on Human Rights or the common law rule against retrospective penalties”.

I am also aware that the Constitution Committee of your Lordships’ House has commented that it is,

“concerned that asking Parliament to legislate in these highly unusual circumstances raises difficult issues of constitutional principle as regards both the separation of powers and the rule of law”.

While the Government are always attentive to the observations of the Committee, as I indicated in a letter to the Committee yesterday we do not see that the decision to legislate in advance of the outcome of the appeal to the Supreme Court raises any constitutional issues. The sovereignty of Parliament means that it is entirely open to Parliament to legislate at any time in response to a judgment of the superior courts.

I am also aware that, since the Hookway judgment, there has been some commentary from within the legal community—particularly from those acting on behalf of those suspected of an offence—which has sought to express concerns that the Hookway judgment is some sort of warning to the police that the courts will not put up with the way that they use pre-charge bail. We will take account of the wider issues of the way the police use bail, but in this particular case, nothing in the terms of the written judgment indicates that Mr Justice McCombe had any underlying concerns in relation to the operation of police bail; he seems to have reached his judgment purely on the basis of his interpretation of the statute.

Following a lot of discussion and some correspondence —indeed, I have had discussions with noble Lords in the House—I am aware of the concerns that have been expressed, including by Liberty, Justice, the Law Society and others, about excessive duration of police bail in some cases and about unduly onerous conditions attached to the bail. As my right honourable friend the Minister for Policing and Justice indicated in the other place, we are not able in this Bill to deal with any wider issues about the Police and Criminal Evidence Act. Moreover, it would be wrong to make changes to police bail in haste and without proper examination of the issues and consultation with the police, the Crown Prosecution Service, the legal profession and others. However, we will reflect carefully on the debates on the Bill, both in this House and in the other place. In relation to these concerns, it is our intention in autumn this year to consult on matters relating to bail more generally and to the conditions that apply to them.

I also point out, for those who may be concerned about this point, that anyone who is on pre-charge bail can challenge the conditions of their bail in their local magistrates' court. That is an important safeguard against any perceived abuse by the police of their powers to bail those under investigation.

I hope the House will be reassured that we are most certainly listening to people and intend to consult on those wider issues that have come to the forefront as a result of the legislation before us, but the urgent nature of this fast-track legislation means that there will be limited time today for debate on those wider issues. We will of course consider any observations that noble Lords make in that area in the course of our deliberations today and will come back to those at another time. The issue before us today is to correct the situation and restore to the police the powers required to protect the public properly. The Government believe that the Bill does that and no more. The other place agreed unanimously to the Bill when it considered it last Thursday. I beg to move.

--- Later in debate ---

[Lord Hunt of Kings Heath]

My Lords, that is a very telling intervention from my noble friend. Surely that is the case. All I would say to the Minister is that I hope lessons will be learned from this matter.

Changing the law retrospectively is in general undesirable and creates great uncertainty. It threatens natural justice if people end up breaking up a law they did not know existed. In this case, my understanding is that the Government are seeking simply to restore the law to what we in Parliament thought it was, to what it had been intended by Parliament at the time to be and to what the police, the CPS and others have followed in good faith for many years.

I noted the intervention of the noble Lord, Lord Thomas of Gresford. Like the Minister, I also noted the comments of Liberty, which are worth emphasising. Liberty does not believe that the Government are seeking retrospectively to create a criminal offence, sanction or other burden, so it would not fall foul of Article 7 of the European Convention on Human Rights.

[Lord Thomas of Gresford]

Is the noble Lord saying that he can envisage what Parliament meant many years ago, when a High Court judge has determined through the language used what was meant? If anybody disagrees with his interpretation, surely the appeal for which leave has been given should be pursued.

--- Later in debate ---

[Lord Thomas of Gresford]

My Lords, it is a great pleasure to follow the noble Lord, Lord Pannick, and I agree with everything he said. It may be that the answer to his final question is that Royal Assent should not be given to this Bill until we have the judgment of the Supreme Court, and then there could be no necessity for it to be repealed.

When the noble Lord was speaking I was reminded of the story of the acorn falling on the head of Chicken Licken, who informed Henny Penny, Goosey Lucy, Turkey Lurkey and others that the sky was falling in. Finally, they all told Foxy Loxy, who listened to their panic-stricken warnings and then ate the lot of them. Much emergency legislation is introduced like the fabled acorn. The Hookway case merely declared that the relevant legislation did not allow the police to save up unexpired periods of authorised detention and to use them to detain and question suspects pre-charge at any date in the future—and this is the important point—even though no fresh evidence had been obtained.

If this is what Parliament meant in passing the legislation, as Mr Justice McCombe has held in his complex judgment, which required to be in writing before it could be properly addressed, then it seems to me as a matter of policy a highly desirable result. If the police and the CPS advising the police do not consider that there is sufficient evidence to charge a person today, why should they be allowed to detain and question the suspect in six months’ time, he having been on police bail, on exactly the same evidence? It is lazy policing. Of course, if there is fresh evidence as a result of a more vigorous or deeper investigation—a matter of some topical relevance today—that is a different matter. In such a case, if there is fresh evidence, a power of arrest would arise and a person could be detained and questioned in relation to the whole case, including the fresh evidence.

The problem that arises in this case is that a suspect can be detained again at a later date—six months, or even more, later—and questioned when no further investigation has taken place. He is simply being questioned on what was in the past. If Mr Justice McCombe’s interpretation of the statutory provisions of what Parliament meant—which is what his judgment is and not what the noble Lord, Lord Hunt, thinks from reading an article in a magazine—is correct, then Manchester Police should continue with its appeal, for which, as your Lordships have learnt, it has obtained leave through a certificate that it is a matter of public importance.

The noble Lord, Lord Hunt, did not continue entirely with the Constitution Committee’s point, which the noble Lord, Lord Pannick, has also made, that Parliament would then have the benefit of a considered judgment from the Supreme Court to assist its deliberations if the appeal were allowed to go ahead. We would then know what the Supreme Court thinks about Mr Justice McCombe’s interpretation.

This simple Bill ensures that lazy and possibly oppressive policing can continue but it raises a much more important question: has the practice of indefinitely extending police bail become a genuine abuse? There is no statutory limit when a person is given bail pre-charge and invited to come back at a later date. In Committee on the Criminal Justice Bill of 2003, my noble friend Lord Dholakia moved an amendment to insert a provision that police bail should not extend more than 28 days, as had been recommended at that time by the Home Affairs Select Committee. He said that his amendment would limit the pre-charge period and that:

“The CPS will of course progress the case as fast as possible. However, we have concerns about the unlimited bail periods. Set deadlines go some way to ensure that matters are reviewed and less likely to drag on unnecessarily”.

The then Attorney-General, the noble and learned Lord, Lord Goldsmith, responded that pilots that had been carried out suggested,

“that in most cases a five-week period should be sufficient to enable charges to be brought”.—[Official Report, 14/7/03; col. 683-84.]

He thought extending police bail for about five weeks was appropriate. Consequently, on 29 October 2003, I moved an amendment on Report for a limit of 35 days —five times seven, taking the Attorney-General at his word. He said in response that he did not wish to have a statutory limit but that it would be better for guidance and instructions to be issued by the Director of Public Prosecutions and the Association of Chief Police Officers. Were such guidelines ever issued?

I am indebted to Mr Roger Windsor who has pursued this topic with freedom of information inquiries which reveal that in 2008, in three police areas alone out of 43—West Mercia, Sussex and Surrey—358 individuals spent more than nine months on police bail to which conditions were attached. I have supplied his findings to the Minister. I am also indebted to Mr Csoka QC of Lincoln Chambers in Manchester and Mr Joseph Kotrie-Monson for their views, which I have similarly passed on.

Not only are there no time limits in relation to how long the police can keep a suspect on police bail when no new evidence has emerged but there is no mechanism whereby the degree to which the police are acting with due expedition—or, worse, with bad faith—can be independently scrutinised. One wonders whether the cuts in funding for the police and CPS could be translated into restrictions on the liberty of those who have not been charged with any offence. The conditions that can be imposed on those bailed can include reporting, curfews, travel and residency restrictions. It is my own personal experience and that of others that conditional bail can last for months or even years with no sign of any activity by the police or the CPS. In other words, people can be given bail at the police station and are welcome to walk out of there subject to the restrictions but those can continue indefinitely without any possibility of seeing whether the police are carrying out their functions expeditiously.

When the Police and Criminal Evidence Act was enacted the police could bail only without conditions—there was merely a requirement to surrender on a future date. In 1995, after 10 years of PACE, the police were given the power to impose conditions. The use of those powers has now reached epidemic proportions. It is the experience of defence lawyers that conditional bail is used punitively against suspects who the police believe are criminals but against whom there is no or no sufficient evidence. The police can extrajudicially, by the grant of bail subject to conditions, curtail their liberty for an indefinite period. Additionally, those arrested for public order offences at political demonstrations are often bailed for inordinate periods with a condition; for example, not to enter Westminster or not to attend further demonstrations. Often no charges are ever brought. They have been subjected to a form of control order which is effectively outside the rule of law. This happened in 2009 with protesters planning a protest at the E.ON power station in Nottingham and the arrest, detention and bailing of protesters during the occupation of Fortnum & Mason on 26 March this year.

The simple solution is to bring in a legal framework which imposes time limits on pre-charge bail and gives a right to appeal. Defendants who are remanded in custody have the protection of custody time limits. Extensions of custody time limits—normally six months —can be granted only if there is a good and sufficient cause and the prosecution has acted with due expedition. It is a frequent case in court that the prosecution goes along and explains how its inquiries are going and why there has been a delay. There ought to be similar protection for those on police bail. Extensions of time could be granted by a district judge but only if the police show good and sufficient cause—that there are reasonable lines of inquiry which could not, with due expedition, have been completed within the initial time limits.

Such a system would protect not only the rights of a suspect but also the victim: a rape victim, for example, has the anxiety of waiting months to see whether a charge is to be brought. Time limits will prevent inefficiency, poor staffing or indecision from creating a culture of delay.

Unhappily, the acorn at the moment is too small and this Bill is too light to carry the burden of extensive amendments to deal with these problems. I am grateful to Mr Justice McCombe for leading Parliament to investigate this area and I am extremely grateful to the Minister for indicating that an urgent review will be carried out in the autumn into what is potentially a very considerable abuse of the system, which certainly Parliament never meant when it passed the legislation in 1985 or when it was considered at any later date.

[Lord Hunt of Kings Heath]

My Lords, that was not the point I was making. The noble Lord asked me where I referred to the supposition in relation to putting it back to where Parliament thought it would be. I quoted from an article, which in turn quoted quite clearly from Hansard of the debates at the time. But that was not the point I was arguing.

[Lord Thomas of Gresford]

I am grateful to the noble Lord for his explanation. I have made all the points that I wished to make. I look forward to the review. I look forward to participating in a parliamentary debate on that review and we can see whether this abuse, which I believe does exist, can be cured.

--- Later in debate ---

[Baroness Browning]

If the noble Lord will bear with me, I shall begin at the beginning and work my way through the timeline. Because we have had such a short debate, it is very important to put this on the record so that noble Lords have the full information. I will read it slowly because a lot of dates are involved.

On 5 April 2011, the district judge refused the Greater Manchester Police’s application for an extension to a warrant of further detention in the Hookway case. On 19 May, in a judicial review, Mr Justice McCombe, sitting alone at the Divisional Court in Manchester, upheld the district judge’s ruling in an oral judgment. I should point out that he sat alone because an early hearing was requested, but only one judge was available to sit; so the request was made—a point referred to by the noble Lord, Lord Rosser. On 25 May, the Greater Manchester Police sought initial views from Ann Whyte QC, who stated that the judgment may relate only to specific cases or warrants of further detention. Yet again, the legal advice was that this might have quite a discrete interpretation in terms of its wider implementation. The following day, 26 May, the Greater Manchester Police invited Home Office officials to become an interested party in an effort to seek leave to appeal to the Supreme Court and forwarded papers for consideration. The written judgment was not of course available at that point—26 May.

As I am reading this, I realise that it is all right for me—I have a piece of paper in front of me. For the purposes of clarity, when I have read this into the record I will also place it in the Library of the House.

On 17 June, the Greater Manchester Police, as we have heard, received the written judgment from the High Court and forwarded a copy to the Home Office on that day. That was a Friday. On Monday 20 June, the Greater Manchester Police and Home Office officials studied the written judgment, and the broad scope of the problems presented by the judgment first started to become apparent. Until that point, there had been some consideration—not only because of the QC’s opinion but because of the wording of the judge in his oral judgment—that this matter was not going to be as far reaching as it has subsequently proved.

It was on 20 June that the GMP and Home Office officials started to consider the written judgment. The next day, 21 June, the GMP invited ACPO representatives and the Home Office officials to meet to discuss the implications. Home Office officials agreed with ACPO to convene an urgent meeting to discuss the implications, which took place the following day. ACPO, the CPS and the Home Office officials met at the CPS’s headquarters. The full magnitude of potential difficulties then became quite apparent. The following day—we are talking about one day following the other—ACPO alerted the CPS chief executive, and ACPO issued notification of judgment to all chief constables. On 24 June, the ACPO lead met with the CPS director-general, and Home Office Ministers were informed at that point. ACPO commissioned advice from Clare Montgomery QC, and ACPO issued interim guidance to all chief constables. That was a Friday.

The following Monday, 27 June, Clare Montgomery QC’s advice was received in conference by ACPO, the CPS and Home Office officials. ACPO issued further guidance to all chief constables. ACPO commissioned forces to provide real-life examples of the impact of the ruling to support the case for urgent legislation. On 29 June, ACPO commissioned further legal advice from Steven Kovats QC. The following day, ACPO received that advice from the barrister and presented its case for urgent legislation to Home Office Ministers. On the same day, the Minister for Policing and Criminal Justice made an Oral Statement to the House of Commons on the need for urgent legislation. To pray in aid the words of ACPO lead Jim Barker-McCardle:

“It was only when ACPO received the written judgment on 17 June, and a number of senior people were able to spend some significant time considering the issue, that the seriousness of this became apparent. As the ACPO lead on this issue, I was not going to advise Ministers that the police service needed, in exceptional circumstances, fast-track legislation until I had satisfied myself first that the legislation was necessary and that the police service could not operate effectively in light of this judgment, beyond the very short term”.

I hope that that is helpful to the House and I am sorry if it is lengthy and detailed.

[Lord Thomas of Gresford]

My Lords, perhaps I may assist my noble friend a little further. Neither the district judge nor Mr Hookway was represented at the hearing before Mr Justice McCombe, and there was a single counsel appearing for the Manchester police. It was clearly very low-key at that point; the respondents to this application were not even there.

[Baroness Browning]

My Lords, I am grateful to my noble friend for adding that information.

I hope that I have been able to allay some fears that the timeframe needed was a result of the Home Office—or, for that matter, anyone else—being dilatory. Had the judge’s and the initial QC’s advice not both indicated that this was not likely to be as far reaching as it subsequently turned out to be, I might accept some of the criticisms. However, the Government have acted as quickly as possible in the circumstances.

I understand that the GMP did ask the Supreme Court for an early hearing. I gather that it was initially given a date in the autumn and, when pressed, the date was brought forward to July. I will soon come on to some of the points that were made by the noble Lord, Lord Pannick.

I hope that I have satisfied noble Lords about the timeframe and the Government’s intentions with the wider issues that have been spoken to by noble Lords, including particularly my noble friend Lord Thomas of Gresford and the noble Lord, Lord Clinton-Davis, about the need for consultation and a fresh look at bail and its conditions. I can assure the noble Lord, Lord Clinton-Davis, that the Law Society and the Bar Council will, of course, be invited to take part in the consultation. We will make sure that all partners in this matter are fully engaged in the consultation, because I know that they will have a lot to contribute to this.

I am also very grateful to my noble friend Lady Hamwee, who, as ever, brings a very measured response to these matters. We have also heard from the noble Lords, Lord Condon and Lord Dear, who have had many years of experience in policing in this country. I was rather struck by the fact that the noble Lord, Lord Condon, in pointing out the operational difficulties that the police currently have to manage, said that no other court decision has had the scale and magnitude regarding operational policing as the one that is before the House tonight. I say to the noble Lord, Lord Dear, that, again, one of the things that always strikes me, having come from another place to your Lordships’ House in the not too distant past, is that the first-hand experience that noble Lords contribute to these debates is what not only makes them of a very high quality but helps to inform the way in which we legislate and proceed in these very difficult matters.

When the Association of Chief Police Officers presented us with clear evidence of the adverse impact of this judgment on the ability of the police to investigate offences and protect the public by enforcing bail conditions, we had a duty to act as a Government, and I believe we have quickly done so. From the debate, it was evident that your Lordships accept the need for fast-tracking this legislation, for the most part. If anything, this is one of those occasions when, notwithstanding the issues that noble Lords have raised, the House has acted and come together to make some progress and help resolve a very urgent problem.

The House would rightly have been sceptical had we sought to introduce a fast-track Bill on the back of an oral judgment, given that the judge in the Hookway case said at the time that the consequences would not be,

“as severe as might be feared in impeding police investigations in the vast majority of cases”.

We now know that assessment of the operational ramifications of the judgment to be misconceived but, as I explained, that became apparent only after the written judgment on 17 June.

Professor Michael Zander QC has been cited around the House. I understand that Michael Zander is someone whom noble Lords feel confident in citing because of his reputation in the field. I do not want to let go the opportunity to cite him myself. He said:

“The Home Office has been criticized for being a bit slow off the mark. But measured from the date when it received the transcript of the judgment, it dealt with the problem in a little over three weeks—which, as these things go, is not bad going”.

We have all prayed in aid Professor Zander; he sounds a pretty good sort of chap to me. I have not met him, but his judgment is clearly respected on all sides of the House.