Police, Crime, Sentencing and Courts Bill

Debate between Lord Thomas of Gresford and Lord Falconer of Thoroton

Lords Hansard - part one & Committee stage
Monday 22nd November 2021 Lords Chamber

[Lord Falconer of Thoroton (Lab)]

My Lords, Section 28 of the Youth Justice and Criminal Evidence Act 1999 allows for the cross-examination of vulnerable witnesses and victims of adult sexual assault to take place separately from the trial. The purpose of this provision—following Section 27, which allows evidence in chief to be given before the trial—is to allow a victim of adult sexual assault to give their evidence in chief and be cross-examined in a period quite shortly after the incident. It means that they do not have to wait a very long time for what will be a terrible ordeal. It means that they give evidence at a point when the events are only recent, rather than after a long period has gone by.

There is nobody, I think, who does not regard these provisions as beneficial. The purpose of this amendment is to ensure that they are as available as possible throughout the Crown Court estate in England and Wales. My understanding of the position is that they are available in respect of the victims of adult sexual assault only in certain specified Crown Courts in England and Wales. This amendment seeks to ensure they are available everywhere and as soon as possible, by saying they would be, in effect, available on the day this Bill becomes law.

It has been said that one of the reasons for not making the provisions available is that they require judicial resource—you need a Crown Court judge in order to hear the evidence, even though it is separate from a trial. It strikes me as very odd that adult sexual violence is not a priority of the Crown Courts. If judicial resources are the problem, my suggestion would be that making resources available to hear the victims of serious adult sexual assault should come sufficiently high up the priorities so that there is a judge available to deal with it. On that basis, I beg to move.

[Lord Thomas of Gresford (LD)]

My Lords, I very much understand the impatience of the noble and learned Lord, Lord Falconer, for the introduction of video recordings of cross-examination in cases involving sexual offences and modern slavery. It is important that evidence in such cases is given early and without pressure. However, I have some queries about the amendment.

The Government have introduced by stages these provisions under Section 16 of the Youth Justice and Criminal Evidence Act 1999 for witnesses

“under the age of 18 at the time of the hearing”

and witnesses suffering “from mental disorder” or

“a significant impairment of intelligence and social functioning.”

The section also provides for witnesses with a physical disability. Various courts have been permitted to hear evidence in these circumstances, culminating in March of this year, when the provisions were extended to Preston Crown Court. But it was only on 30 September—six weeks ago—that the provisions were extended under Section 17(4) for complaints in respect of a sexual offence or a modern slavery offence. Only four courts were involved—Durham, Harrow, Isleworth and Wood Green. I have not seen any evaluation of the use of these procedures under Section 16, although they were piloted as early as December 2013 in Kingston, Leeds and Liverpool. I would be grateful if the Minister could tell me whether such an evaluation exists and, if so, whether it could be made available.

As for the proposal in this amendment to extend the provisions wholesale under Section 17, it is obviously too soon to evaluate limited pilots from the end of September. There can surely not have been time yet for any direction to be made by any judge of the three courts for such special measures for sexual offences and modern slavery.

Since I have no personal experience of these measures, I would be grateful if the Minister could inform me how they take place. As I read the legislation, the witness gives evidence to the court in the presence of the judge and counsel on both sides but in the absence of the accused. The accused is, however, entitled to watch the proceedings and communicate with his legal representatives. How exactly would this be organised? Is the accused in another part of the building, watching from prison, or what? In what way is this less intimidating to the witness than, for example, giving evidence down the line at the time of trial—a proceeding with which we have been familiar for some years?

My concern is that the distancing of the witnesses from the jury is artificial enough when it takes place at the time of the trial. But in my view it is even greater when the jury know they are watching a recording of examination and cross-examination which happened months, possibly even a year, before. While I appreciate that the best evidence is that which is given shortly after the events, the answer, really, is not to delay trials to get rid of the backlog. I heard on Saturday at my chambers dinner that the problem of delay is not the Nightingale courts but the number of judges and counsel needed to cover the trials taking place there and in the ordinary Crown Courts.

Originally, this amendment was grouped with Amendments 286 to 291. Are the others to be spoken to later?

[Lord Falconer of Thoroton (Lab)]

In this group, according to my listing, Amendment 268 is grouped with Amendments 286, 287, 288, 289, 290 and 291.

[Lord Thomas of Gresford (LD)]

That introduces the question about the complainant’s sexual history; I do not think the noble and learned Lord addressed that when he opened the case. The basic position in relation to that issue is stated in Section 41(1) of the 1999 Act, which says that

“no evidence may be adduced, and … no question may be asked in cross-examination,”

where

“a person is charged with a sexual offence … except with the leave of the court”.

Amendments 286 to 291 are concerned with tightening up the circumstances in which leave may be given. The noble and learned Lord, Lord Falconer, would not allow by these amendments such evidence whenever the issue of consent arises, whether at the same time or same event as the subject matter of the charge or where there is such similarity in the sexual behaviour of the complainant to the charge that the similarity cannot reasonably be explained as a coincidence.

Police, Crime, Sentencing and Courts Bill

Debate between Lord Thomas of Gresford and Lord Falconer of Thoroton

Lords Hansard - part one & Committee stage
Monday 8th November 2021 Lords Chamber

[Lord Falconer of Thoroton (Lab)]

The noble Lord has made a very interesting speech, but is it right that negligence and the harm that it does cannot be reflected in imprisonment for any criminal offence? What is the position in relation to health and safety at work? My understanding of the law is that once someone is convicted of what is in effect negligence in relation to providing conditions at work, the court can take such matters into account—for example, if they were negligent and someone lost an eye, that would increase the penalty, and imprisonment would be a possibility. I might be wrong about that.

[Lord Thomas of Gresford (LD)]

That is an interesting point. Manslaughter can obviously be by negligence.

[Lord Falconer of Thoroton (Lab)]

Gross negligence.

[Lord Thomas of Gresford (LD)]

Gross negligence, yes—although it is interesting that the word “gross” is put before it. But these are different offences, and it may be that I should confine my criticism to the road traffic situation and not extend it as a general principle of English law.

End-to-end Rape Review

Debate between Lord Thomas of Gresford and Lord Falconer of Thoroton

Tuesday 22nd June 2021 Lords Chamber

[Lord Falconer of Thoroton (Lab) [V]]

The issue about the extent to which rape is properly prosecuted in this country is now a real one. The Lord Chancellor rightly apologised for the lack of prosecutions, yet did nothing to deal with the problem properly. He announced a sum of money, in the region of £150 million, most of which went to refuges. Refuges are very worth while but will not deal with the problem of the lamentably low rate of convictions for rape. The average amount of extra expenditure on rape cases, if one applies it to the number of rape cases the Government estimated last year, is £15 a case.

Why have the Government not made more resources available, if their apology is serious? Why have they not rolled out Section 28, which allows for victims of rape to give evidence as soon as possible after the crime has been committed and for their evidence to be recorded?

[Lord Thomas of Gresford (LD) [V]]

I congratulate the authors, researchers and statisticians who have contributed so much to this comprehensive and excellent review. I trust that the Government will fully resource its recommendations, but agree with the noble and learned Lord, Lord Falconer, that there is no sign of it so far.

I focus on one of the review’s findings—namely that, in 57% of all adult rape cases, the victim feels unable to pursue their complaint. Given that in 90% of cases the victim knows the perpetrator—as a member or friend of the family, fellow student or worker, friend or acquaintance—that may not be too surprising. I strongly suspect that very few of those withdrawals concern the small minority of cases where the perpetrator is unknown. I am interested to know whether the Minister has a figure for the percentage of withdrawals in cases of stranger rape.

So, what are the reasons for disengagement by the victim? First, there is delay. Giving evidence is always a stressful experience, as I know well. Standing exposed in a witness box with one’s honesty, accuracy of recollection and motives challenged is not pleasant. Giving evidence about intimate sexual encounters must be agonising and overwhelmingly stressful. Only those with a high degree of courage and persistence can be expected to stay the course without considerable support. I very much welcome the pilot schemes for the recording of evidence and cross-examination early, well before trial. How soon can those pilots be evaluated and rolled out? Months, if not years, of waiting for a trial must disincentivise victims pursuing their case.

Secondly, there is the intrusion into privacy. In January 2018, the noble and learned Lord, Lord Morris of Aberavon, introduced a debate on this topic. I suggested an algorithm which would require the defence to co-operate by setting out their case in a defence statement and, at that point, indicating keywords for the search of mobile phones. The revised Attorney General’s Guidelines on Disclosure, published in 2020, set out such a system and it is now operational. The review recognises the importance of privacy by its requirement that mobile phones be returned within 24 hours. If that is done, I hope this disincentive to reporting rape will be removed.

Thirdly, we come to sentencing. I am not convinced that longer and longer sentences have any benefit. The review points out that the minimum sentence guideline is now six years and that the average term served for rape is nine years. This increase in sentencing coincides with a decrease in convictions. So many cases depend upon consent, without these days, in England and Wales, any need for corroboration. The lack of consent by the victim must be proved beyond reasonable doubt, and that is the highest degree of proof.

A victim, already oppressed by delay in bringing a case to court, must generally also contemplate the destruction of the life of an offender whom she knows and may even love. That may also be a potent reason for her to disengage from the case. That there should be a substantial and significant sentence of imprisonment for rape is not in doubt, but excessive increases year on year may have unexpected consequences to the detriment of justice.

Ultimately, the jurors are the judges. Acquittals reflect societal attitudes. At the moment, judges seek hard to dispel the myths and prejudices of the past, with lengthy exhortations and directions to the jury—but attitudes begin in the classroom, and we must train teachers to inculcate respect for others and, above all, the meaning and parameters of consent.

In the last few years, we have developed teams of specialised investigators and prosecutors, special measures for court hearings and victim support services. All these are steps in the right direction but have manifestly had no impact on the rate of convictions. We must try harder. We will support the Government further in implementing the policies that are set out in this review.

Counter-Terrorism and Sentencing Bill

Debate between Lord Thomas of Gresford and Lord Falconer of Thoroton

Report stage & Lords Hansard
Wednesday 3rd March 2021 Lords Chamber

[Lord Thomas of Gresford (LD) [V]]

My Lords, Clause 48 deals with the extent of the Bill. It provides that

“A provision of this Act which amends, repeals or revokes an enactment has the same extent within the United Kingdom as the enactment amended, repealed or revoked.”


Under subsection (2), provisions that do not amend, repeal or revoke an existing enactment extend to all four nations—England, Wales, Scotland and Northern Ireland—save for two limited exceptions, in that Clauses 21(2) and 44(2) are of a limited nature, referring to retrospectivity.

It is not easy to extract the purpose of Amendment 26. Someone in the Ministry of Justice has concluded that there are problems under the Armed Forces Act 2006. Proposed new subsection (4A) suggests that, in the context of jurisdiction under the Armed Forces Act 2006, all the provisions of the Bill extend to all four countries. This is so even if an amendment repeals or revokes a provision of an existing Act that does not have that extent.

Under proposed new subsection (4B), the provisions of the Act extend outside the United Kingdom to the extent set out in Section 384(1) and (2) of the Armed Forces Act. That section applies to the Channel Islands, the Isle of Man and overseas territories excluding Gibraltar. British Overseas Territories do not include Cyprus, Belize or Gibraltar itself, which is specifically excluded. Those are all venues where I, as chairman of the Association of Military Court Advocates, know that courts martial take place.

Those are three places, and I am sure there are more, where courts martial take place—not to mention Germany, where the facilities have ceased. Courts martial can, of course, take place anywhere in the world, if properly constituted, and if charges for service offences are brought against anyone who is subject to the Armed Forces Act.

Terrorism exists outside the overseas territories. I would very much welcome clarification as to what happens if a court martial is held outside the United Kingdom, but not within those overseas territories to which the Armed Forces Act applies. I cannot help feeling that I am missing something, but the statement attached to the amendment is not at all clear—even though it states that the purpose of the amendment is to clarify the position. I look forward to the Minister doing so.

[Lord Falconer of Thoroton (Lab) [V]]

I endorse the question so clearly put by the noble Lord, Lord Thomas of Gresford. Despite the clear explanation given by the noble Lord, Lord Wolfson of Tredegar, I am still struggling with this amendment. Can he tell us the sort of problem that proposed new subsection (4A), which Amendment 26 seeks to insert into the Bill, tries to deal with? What is the lack of clarity with which he was concerned? Can he also indicate whether there are any implied provisions put into the Armed Forces Act by this Bill?

Proposed new subsection (4C)(a) specifies:

“a provision made, or inserted, by or under this Act so far as it is applied (by whatever words) by or under the Armed Forces Act 2006”.

Can he indicate what sort of provision that is aimed at? I would find it really helpful, in relation to proposed new subsections (4A) and (4B), to have an example of a problem that these two provisions would solve.

Counter-Terrorism and Sentencing Bill

Debate between Lord Thomas of Gresford and Lord Falconer of Thoroton

Committee stage & Committee: 1st sitting (Hansard) & Committee: 1st sitting (Hansard): House of Lords
Tuesday 26th January 2021 Lords Chamber

[Lord Thomas of Gresford (LD) [V]]

My Lords, it is a privilege, as always, to follow the noble Lord. I respect his point of view and the experiences he has had. I am sure he will appreciate we are concerned with the rule of law and preserving the reputation this country has for justice done in the proper way.

Terrorist activity is an aggravating factor in sentencing. Section 30 of the Counter-Terrorism Act 2008 enables courts to increase the sentence if it is established that the offence has a terrorist element. But the 2008 Act limited the use of this provision to the specific offences in Schedule 2, which were those most commonly connected with terrorist attacks or ancillary to them. The primary offences listed involved murder, manslaughter, violence to the person and explosives, nuclear, biological material and hijacking offences. The proposal in Clause 1 extends the offences that can be aggravated by a terrorist element to include any offence in the whole criminal calendar punishable with imprisonment for more than two years. This is an enormous widening of the provisions of the 2008 Act. The main feature of these provisions is that the issue of whether there is a terrorist element in an offence is not determined by a jury, notwithstanding the fact that these cases will inevitably be heard on indictment in the Crown Court.

The decision that there is a terrorist connection becomes part of the sentencing process, to be determined by the trial judge alone after conviction. Could the Minister explain the process the Government envisage? Would it be the equivalent of a Newton hearing, with a separate trial of the issue in which evidence is called and arguments heard on which the judge’s decision is based, or would the judge be entitled to come to a conclusion based on the evidence he has heard in the trial before the jury? It is an important decision. It is not just that his finding will add years of imprisonment to the individual defendant but, as my noble friend Lord Marks said a moment ago, it will trigger the terrorism notification requirements and the restrictions on early release contained in the Terrorist Offenders (Restriction of Early Release) Act 2020.

Surely, in the traditions of the criminal law of this country, a suspect believed to be involved in terrorist offences should be charged with those offences. It should be for the jury to decide whether there is sufficient evidence to sustain such charges. It cannot be right to charge the suspect with lesser offences and allow the judge to add the icing to the cake. There is no way in which this clause can be satisfactorily amended; consequently, the only thing to do is throw it out.

Let me give a pertinent example which everybody will understand after the events of last year. Suppose a jury finds a Whitehall protestor guilty of occasioning actual bodily harm to a rival protestor outside the gates of Downing Street, by punching him on the nose and stealing his flag. Under this clause, the judge could find proved, after the jury’s verdict, that the use of force to influence the UK Government and intimidate the public was for the purpose of advancing an ideological cause and therefore well within the definition of terrorism in the pursuit of, shall we say, exiting the European Union. Does the Minister—whom I welcome to his seat in the House of Lords—agree?

[Lord Falconer of Thoroton (Lab) [V]]

I join noble Lords in welcoming the noble Lord, Lord Wolfson of Tredegar, to his place in the House of Lords. I am sure he will make an enormous series of contributions to our debates on justice issues—not just criminal justice, but civil justice. He is very welcome.

This is a very important Bill. I think everyone in the House, certainly on this side, is very keen that the Government be given legitimate tools to fight terrorism as hard as possible. One legitimate tool must be the use of greater sentences, where appropriate, for people who commit terrorist offences. In principle, we on this side are not against the idea of expanding the circumstances in which an offence can be regarded as aggravated because of a terrorist connection, which is what Clause 1 does.

Also, in principle, I do not think it necessarily wrong for the judge to be given very substantial powers to make judgments on what the appropriate sentence may be. The most obvious example of this relates to murder, where the judge in effect has the power to determine whether the offender should be given a whole life sentence, which will obviously have huge ramifications for what happens to that defendant. Indeed, such a decision had to be made quite recently on the conspirator convicted in relation to the Manchester Arena bombings —he was given a whole-life sentence by Mr Justice Baker. That was a very significant occasion.

I am very keen to discover precisely what process the Government have in mind for how a decision will be made on what are more or less serious offences than the normal ones. What process is envisaged in which a judge can decide whether an offence is aggravated by terrorism in the sense envisaged by Clause 1? In principle, I think a fair process can be envisaged and it may not be wrong for the judge to decide that rather than the jury. However, I am very interested to hear what the Government have to say about it.

--- Later in debate ---

[Lord Thomas of Gresford (LD) [V]]

My Lords, I have many reservations about the value of polygraph tests. They rely on measuring several physiological processes—pulse rate, blood pressure, perspiration and so on, the changes that may take place in the course of questioning. However, the emotional and physiological responses recorded may arise from such factors as simple anxiety about being tested or fear of being judged deceptive, or a host of things—perhaps the state of one’s digestion after food. There is an inherent ambiguity in the physiological responses. The reluctance to use polygraph evidence is precisely because the response may mimic the response expected of a person seeking to deceive.

What is meant by “failing” the polygraph test? Failing the test means exhibiting a certain physiological response to a question. What is truth? The examiner cannot know whether that response means that the answer is a lie. However, there is no punishment for failing the test—whatever that means—or for exhibiting that response. That does not breach the terms of the offender’s licence. The individual will not be returned to prison. Alterations may, however, take place in the conditions of his licence, and those could be onerous.

The irony is that, in the course of questioning, the person being questioned may provide information truthfully that will have an adverse effect on him. He has not failed the test because his body does not react to his telling the truth, but he has provided information that may lead to his punishment. He has of course lost his right to silence, a right first developed in the late 17th century as a check to arbitrary rule. It has been regarded over centuries as fundamental to the fairness of the criminal law in this country and in the common-law countries all over the world.

Faced with the terrorist atrocities that we have seen in this country, the loss of the right to silence may seem a worthwhile price. Obviously that is not the immediate view in Scotland, nor in Northern Ireland. Let us face the dilemma: the proposals for England and Wales do not involve imprisonment for a lie but possible imprisonment for telling the truth or, since it is mandatory to answer the questions, even for remaining silent. Faced with legal and moral issues such as this, the drafters of the Domestic Abuse Bill, which is proceeding this week here also, as the Minister will know, decided that it was appropriate to proceed with a three-year pilot before finally rolling out the use of polygraphs generally in that field. Why is a different approach taken in this concurrent Bill?

It is interesting to note that the case studies in the MoJ memorandum on these proposals indicate that the information provided led to warrants being issued and physical evidence obtained in the offenders’ respective homes to contradict what they had said. However, there is no indication how often that has occurred or how many times such activity has proved nothing, and nothing has come of it. Will the Minister deal with that in his reply?

[Lord Falconer of Thoroton (Lab) [V]]

Like the noble Lord, Lord Thomas of Gresford, I too have considerable doubts about the reliability of polygraph material. This series of government amendments tabled by the noble Lord, Lord Wolfson of Tredegar, indicate some degree of shambles on the part of the Government. They are withdrawing the polygraph provisions for Scotland and Northern Ireland. Had they consulted the Scottish Government and the Northern Ireland Executive prior to the initial publication of the Bill, they would have seen what the Scottish Government and the Northern Ireland Executive had to say about them.

In the light of what was said by those two Governments, why did the UK Government introduce these provisions? It is plain from what the noble Lord, Lord Wolfson, is saying that the Scottish and Northern Irish Administrations do not want them. There is a reference to the various provisions that might allow them to introduce them as licence conditions. However, neither of the Administrations have indicated that they want these powers, so why on earth were they introduced in the first place and when was it that the UK Government decided to respect those views? If they did not consult those two Administrations before, why not?

Separate to that, on the use of polygraphs, what advice have the Government sought from police forces in England and Wales? To what extent would those police forces be confident about using polygraph testing?

Moving on, the effect of Amendment 73 would be that Clause 32, which sets out the conditions for polygraph testing for terrorist offenders in England and Wales, would come into force two months after Royal Assent rather than by regulations. Why have the Government reduced the degree of scrutiny available to the introduction of polygraphs by removing the need for regulations? Separately, what provisions are available in the Bill to stop the use of polygraphs if they prove to be ineffective?

--- Later in debate ---

[Lord Thomas of Gresford (LD) [V]]

My Lords, the Minister’s words brought to mind many waterfalls that I know and love in Scotland, but I will forgo the opportunity to comment on Scottish criminal law. I am sure that both these minor and technical amendments are perfectly justified and I have no more to say about them.

[Lord Falconer of Thoroton (Lab) [V]]

I am grateful to the noble and learned Lord, Lord Stewart of Dirleton, for the clarity with which he introduced these two technical amendments. Perhaps I may ask two questions. First, on Amendment 8, what would the implications have been had this amendment not been made? I was not clear from what he said whether it would change any position. Secondly, in relation to Amendment 9, how many further convictions would have been included without the decision to limit the availability of the new sentence to cases of conviction on indictment?

--- Later in debate ---

[Lord Falconer of Thoroton (Lab) [V]]

These are three simple amendments dealing with the sentencing framework for England, Scotland and Northern Ireland. The Bill as drafted removes the chance of parole for anybody, irrespective of their age, if they have committed a dangerous terrorist offence. As I have made clear, we on this side of the House are keen that there be strong penalties, because the aim is to prevent terrorism. However, we do not think it right that the possibility of parole be removed altogether for those people convicted when they are under the age of 21.

There are three reasons for that. First, the possibility of change must be higher when you are under 21. We are not starry-eyed about this, but that possibility should be there. Secondly, it will make prisoner management easier, as all prison governors attest. Thirdly, you avoid the possibility of the detention of someone over a very long period of time, and the sense that that person has served his sentence will create a recruiting sergeant in certain communities.

Each case has to be looked at on its merits; release would occur only when the Parole Board was satisfied. Occasions when mistakes have been made are all too well known and, indeed, have inspired this Bill. But if the aim is to provide as much security as possible for the community as a whole, then removing the chance of parole for anybody under 21—and it is only a chance of parole—is a mistake. I beg to move.

[Lord Thomas of Gresford (LD) [V]]

The law has always distinguished between the adult and the young offender in many ways. Policy has always been to make every effort to rehabilitate the young before they become hardened criminals. It is even more important not to turn them into hardened terrorists.

“What works?” asked the noble and learned Lord, Lord Stewart of Dirleton—the Scottish wing of the strike force. A large incentive when persuading offenders to amend their ways is the fact that they have their chance, before the Parole Board, to have release if it is appropriate and safe.

The outcome of prison is the person who walks out of the gate at the end of the sentence. What has happened to him inside? Has he been radicalised or rehabilitated? Some go in with no particular ideology and are radicalised. Others go in radicalised and must be given the opportunity to change their lives. They should be managed with the personnel and tools described by the noble and learned Lord, Lord Stewart.

Young people can rehabilitate if they are given the courses and programmes that exist to enable them to gain skills to support themselves outside the prison environment. The longer the sentence, the more difficult that is. Prisoners convicted of terrorist offences provide a further problem. Have they retained the beliefs that got them into trouble in the first place? Or are they still radicalised? I was pleased to hear of the theological and ideological interventions that are promised to deal with problems such as those.

I support these amendments, because I believe we should continue that long-held view that young people should be treated differently and given a chance to turn their lives in a different direction.

Sentencing White Paper

Debate between Lord Thomas of Gresford and Lord Falconer of Thoroton

Monday 21st September 2020 Lords Chamber

[Lord Falconer of Thoroton (Lab)]

My Lords, I start with two preliminary points. The enforcement of the law, particularly the criminal law, is key to the success of the United Kingdom. The White Paper describes the criminal law as

“the basis of a fair, free and safe society.”

It is hard to take lessons on enforcing the law from a Government who will not respect the law themselves. The promotion of law and order from a Government who behave as if the law does not apply to them reeks of the self-serving hypocrisy which makes people hate politicians so much. But it goes much deeper than that. The Lord Chancellor and the Law Officers are the people within government who defend the law. The Lord Chancellor, who is responsible for this White Paper, has said he will resign only where the law has been breached

“in a way which cannot be fudged”.

“Fudged” is defined in dictionaries as “presenting something in a way which conceals the truth”. Can the Minister update the House on whether the Lord Chancellor still considers that the admitted breach of the law in the internal markets Bill can be presented in a way which conceals the truth?

Secondly, the criminal justice system is currently in utter turmoil, with an enormous backlog because of the virus. There are over 40,000 jury trials awaiting disposal, and the Government have been forced to extend custody time limits from six to nine months. The CPS Inspectorate estimated in June that it could take 10 years to clear the backlog. It has got worse since then. This White Paper will be a dead letter if the Government cannot deal with the current crisis. I note that the head of the Courts Service has just left to become the Permanent Secretary, or acting Permanent Secretary, at the Education Department. Can the Minister tell us who is now in charge of the Courts Service at official level? Can she give us details of the current level of the backlog and the steps being taken by the Ministry of Justice to deal with it, and her estimate of when it will be dealt with?

To produce a White Paper like this at this time feels like a gimmick. The White Paper is a hotchpotch, with no unifying themes. Some of the strengthening of sentencing for some violent and sexual offenders is sensible. We welcome the pilots of problem-solving courts; their success already in Liverpool and other places makes me think that the MoJ could go quicker and further on them. Tougher community sentences and greater use of tagging is welcomed as well, and we also welcome the reduction in criminal conviction disclosure periods for those seeking employment.

What this White Paper does not do is signal a fundamental shift in sentencing. It looks like the worst sort of politicking. The fundamental shift should be being consistently tough on sexual and violent crimes and remorselessly focused on reducing reoffending. It should recognise that one-third of those being considered for community sentencing have mental health problems, and the White Paper should begin to address that. To have a proper plan that represents a fundamental shift, there needs to be a properly resourced plan for a properly staffed Prison Service that is able to deal with demand; a properly resourced probation service; and effective and, where appropriate, intense community penalties.

When does the Minister expect the legislation referred to in the White Paper to be produced? What additional resources does the Minister expect to be put into the system to fund this “fundamental shift”? When will the problem-solving courts be rolled out? How many offenders are affected by reducing the two-thirds release date for those sentenced from seven years down to four years? How many more prison places will be required to accommodate the increase in the life tariffs from one-half to two-thirds of the equivalent determinate sentence, and when will those prison places be available?

[Lord Thomas of Gresford (LD) [V]]

The Statement rightly claims that the first duty of any Government is to protect their people. There are two competing views as to how people should be protected. There are those who believe that warehousing offenders for as long as possible is a sure way of protecting the public, at the price of destroying the span of their lives on this planet. The alternative view is that the time and space given by incarceration in prison should be constructively used to reform and rehabilitate the prisoner, not just for his own sake but for the protection of the public in the long term.

The alternative approach is recognised in the White Paper in its call to empower the sentencing system with more effective community sentencing. It recognises the evil of drugs and unemployment regarding the individual and undertakes that individual needs will be identified and met. These reforms, it says, will not work unless they are underpinned by a “world-class” probation system. I entirely agree.

Much depends on the quality of probation officers. I recall from my early days in the law—as did the noble and learned Lord, Lord Woolf, in the debate on the Question a moment ago—that many experienced and mature probation officers did much to improve the life chances of young people. I welcome the reference in the White Paper to a closer relationship between probation and the courts. That is how it used to be. In more recent years, the probation service has not seemed to be in the offender’s corner, to the point where it was risky for defence counsel to ask for a report because it would very likely be negative. The need for diversity in recruitment was not raised today in the earlier Question, but it is important to recall that an investigation in January of this year found that 70% of probation officers were female and white and did not meet the need for people of maturity, of different colour and of greater experience who can deal with the problems placed before them.

This paper, however, emphasises longer sentencing. Like Bad Boris in the “Dead Ringers” radio comedy, the desire to warehouse people creeps through. Here is where the strategy breaks down. I have spoken on other occasions of Berwyn Prison in Wrexham, near my home, which is the newest and largest prison in the United Kingdom and the second largest in Europe. Coming into its fourth year, it is still 400 short of its full complement because it still cannot recruit the staff. It does not begin to fulfil the rehabilitative ambitions with which it was built, and it is a byword for drugs and assaults on staff and fellow prisoners, as a study by Dr Robert Jones of Cardiff University found in June of this year. If such a new prison struggles to succeed, longer sentencing is decidedly not the way forward. This mars the otherwise constructive approach of much of the White Paper.

The noble and learned Lord, Lord Falconer, has asked many questions, so I will not add to the Minister’s further burden with mine.

Private International Law (Implementation of Agreements) Bill [HL]

Debate between Lord Thomas of Gresford and Lord Falconer of Thoroton

Committee stage & Committee: 2nd sitting (Hansard) & Committee: 2nd sitting (Hansard): House of Lords
Wednesday 3rd June 2020 Lords Chamber

[Lord Falconer of Thoroton]

This is, in effect, a probing group of amendments, repeating many of the arguments that we discussed on day one in Committee, and the amendments do two things. Amendment 19 would delete the power of the regulation-making authority to create, amend or extend a criminal offence. Amendments 20 and 21 say that the regulation-making power should be subject to the super-affirmative resolution procedure in the UK Parliament; and, in particular, that before any such instrument was made final a consultation would have to be undertaken with the Lord Chancellor’s advisory committee on private international law and the European Union Select Committee of the House of Lords.

I make it clear, as I did on the previous occasion, that I am not in favour of this order-making power at all. I refer to Amendment 19 simply to indicate the width of this power, which includes the making or changing of criminal offences. In relation to the super-affirmative procedure, again, I am against it. There should not be that power at all. It gives me an opportunity, though, to make the point that the Lord Chancellor’s advisory committee on private international law has been an important source of advice over a long period to the Lord Chancellor and the Ministry of Justice on private international law agreements. It was not referred to at all in the suite of maybe a dozen statutory instruments introduced under the withdrawal Act, in the wake of us changing our private international law arrangements with the European Union. That led to a great loss in the preparation of those statutory instruments. I very much hope that the Minister will give an under- taking that in any subsequent changes in private international law, the Government will consult unquestionably the Lord Chancellor’s advisory committee and, as much as possible, the European Union Select Committee of this House. I beg to move.

[Lord Thomas of Gresford (LD)]

My Lords, first, I draw attention to paragraph 41 of the memorandum concerning the delegated powers, which says:

“We do not anticipate using the power to create, extend or increase the penalty for, a criminal offence very often, however it may be needed, in very limited circumstances, in order to implement effective enforcement provisions for some potential future PIL agreements.”


I stress: some potential future PIL agreements.

I want to speak mainly to Amendment 19, although I support what the noble and learned Lord, Lord Falconer, said in relation to Amendments 20 and 21 and his criticisms of the super-affirmative procedure. The Committee may recall that in its first sitting, I made comments about the necessity for democratic legitimacy and scrutiny when it comes to the making of legislation in this form. I do not consider that the form of approach of an affirmative resolution on its own is enough. I certainly do not think that the super-affirmative procedure adds very much to that. As for scrutiny, the noble and learned Lord has already referred to the fact that the Lord Chancellor’s committee was not given an opportunity to consider the Bill.

Criminal offences are set against the background that everybody is presumed to know what the law is. To put it another way, familiarly, ignorance of the law is no excuse. Any criminal offence created requires clarity, certainty and proportionality. I illustrate this by referring to what is very much in the public eye at the moment, the Health Protection (Coronavirus Restrictions) (England) Regulations 2020. No draft was laid or approved by Parliament by reason of urgency, and one understands entirely that reason, but the instrument has been amended twice since it was passed in March and the latest version came into force on Monday. It had 12 regulations and two schedules in its original form and Regulation 6(1) provides that everyone must stay overnight at

“the place where they are living”.

There are certain exceptions, including, at Regulation 6(2)(d),

“to provide care or assistance, including relevant personal care within the meaning of paragraph 7(3B) of Schedule 4 to the Safeguarding of Vulnerable Groups Act 2006, to a vulnerable person”.

At that point I gave up further research, but I do not think that particular exception can possibly refer to ordinary childcare. Yet there has been controversy. The Prime Minister and four of the Cabinet have taken one view or interpretation of these regulations and almost everybody else has taken a completely different view on whether what happened was legal or not. An unlimited fine is payable on summary conviction, which can be avoided by complying with a fixed penalty notice. Noble Lords will appreciate that that is typical of the sort of offence that can be created by secondary legislation that nobody understands—I say “nobody understands”; many people understand the drift of it, but the particular detail can be the subject of controversy.

Coming back to the Bill, it is obviously undesirable that there should be a lack of clarity in drafting criminal offences when it is possible for those criminal offences to result in a penalty of up to two years’ imprisonment. An unlimited fine is quite a burden, but imprisonment through regulations that refer to other Acts of Parliament—subsection this and sub-subsection that—is entirely undesirable and never gets, whether by the ordinary affirmative procedure or the super-affirmative procedure, adequate scrutiny and understanding by the authorities that have to put it into effect and, most relevantly, by the people who are affected by it and who have to obey the law.

Public international law covers, as we discussed, a wide variety of issues. It is not at all satisfactory for the wide power that I referred to—for some potential future PIL agreements to create criminal offences—to be put in the hands of Ministers. For that reason, this is an aspect of the Bill, never mind the whole of Schedule 2, that I find offensive.

Private International Law (Implementation of Agreements) Bill [HL]

Debate between Lord Thomas of Gresford and Lord Falconer of Thoroton

Committee stage & Committee: 1st sitting (Hansard) & Committee: 1st sitting (Hansard): House of Lords
Wednesday 13th May 2020 Lords Chamber

[Lord Thomas of Gresford]

My Lords, I am of course speaking as a Welshman. We have a very limited interest in the provisions being discussed, but I have some questions. Since the time of Henry VIII, who has a great deal to answer for, the jurisdiction of England and Wales has been merged. Only in very recent years has there been a suggestion that Wales should have its separate jurisdiction. We are one of the three jurisdictions that will be subject to the Bill’s provisions; we go along with England. I would like to know whether there is any prospect of consultation with Welsh Ministers about what provisions are being brought into effect, because private international law covers such a wide range of things. It has particular relevance to family life in Wales as much as anywhere else. Will there be any consultation? If so, what will it be?

[Lord Falconer of Thoroton]

I simply underline the points made by my noble friend Lord Foulkes and the noble and learned Lords, Lord Wallace and Lord Hope. As far as my noble friend Lord Foulkes is concerned, the purpose of these amendments is to probe; as far as I am concerned, they illustrate the lack of thought that has gone into Clause 2. They simply underline the sense that there should not be a Clause 2.

Justice and Security Bill [HL]

Debate between Lord Thomas of Gresford and Lord Falconer of Thoroton

Wednesday 11th July 2012 Lords Chamber

[Lord Thomas of Gresford]

I respect the views that the noble Baroness has just put forward, but I do not think that public confidence is improved if a closed judgment is given on closed material to the Government in a particular case. It is essential that the public know what is going on as much as is conceivably possible. The interests of national security can be invoked in only the smallest area of cases if confidence is to be maintained.

[Lord Falconer of Thoroton]

The noble Lords, Lord Hodgson and Lord Lester, and the noble Baroness, Lady Berridge, have made important points, but we must surely address the issue on the basis of what within our court system produces the most just result available, recognising that imperfect justice may be involved. Everybody accepts that two conflicting principles are valid, namely a properly functioning justice system and the need to protect national security. My view is that if a case is made that unjust results might be being reached, with claimants making claims that they know the Security Service cannot defend, then we should do enough to enable our justice system to properly defend those cases. Open justice is a means to producing justice. The courts have always recognised that if you cannot do justice that is open—for example, if you destroy the confidentiality that the justice system is designed to protect—then exceptional measures are needed for exceptional cases. I do not think our security services are being well served if they are forced to admit claims that they should not, and neither is respect being paid to our judges if they are simply a rubber stamp.

The right answer in relation to this issue is, first of all: is the case proved? That is an open question at the moment, as far as I am concerned. If the case is proved that some measures are needed then these should be kept to a minimum and the judges should decide what is required in order to create the fairest possible system. The problem with the amendments from the noble Lord, Lord Hodgson of Astley Abbotts, which I think he would be the first to acknowledge, is that they involve the judge considering whether there would be any serious risk of injustice to either party if the application for a closed material procedure were to be granted. However, everybody involved in closed proceedings knows perfectly well that if you have procedure that reveals evidence about person A and A never knows what is said about him or her, the prospect of an injustice is significant. However, that may be the best that can be done under the circumstances.

I respect the noble Lord, Lord Hodgson of Astley Abbotts, for raising these points. I just do not think the House of Lords can avoid asking: what is the right answer? The only guide we have is to try to reach the right answer. That is the only way we shall retain respect for what we do. The task we are engaged in is trying to balance those two factors. As I said before supper, what we are aiming for in this bit of the debate is fairness because ultimately national security can be protected by the security services pulling a case, so it is all about deciding whether there are a sufficient number of unfair cases that some special procedure needs to be crafted.

As it happens—and I think the noble Lord, Lord Lester of Herne Hill, is right here—the points raised by the noble Lord, Lord Hodgson of Astley Abbotts, are pretty well the same points we had before supper, and he acknowledged this in his opening remarks. The noble Lord’s basic approach in Amendment 44 is to say that one should go the PII route first; then only if the PII decision is non-disclosure do you go on to CMP. I do not like that approach for the reasons I advanced in response to the amendment from the noble Lord, Lord Faulks, in concert with the noble and learned Lord, Lord Woolf. It is too inflexible. I do not see why we cannot give the court all the options at the time it makes the decision, as the noble Lord, Lord Thomas of Gresford, suggested. This would avoid opportunistic applications and allow the court to come to the fairest possible results. I would be repeating myself if I went on about that. The noble Lord’s amendment has promoted debate, but the effect of that debate is that we do not want the lack of flexibility that his amendment proposes.

--- Later in debate ---

[Lord Thomas of Gresford]

My Lords, I support this amendment. I have already made the point that the procedures of the court should be controlled by the judge and not by the Secretary of State. The words “rubber stamp” have been used on a number of occasions, not least by my noble friend Lord Lester, in relation to these provisions. It is a rubber stamp when one combines the provisions in Clause 6(2) with what the judge must do in determining the application, under the provisions of Clause 7(1)(c). This is a point that the noble and learned Lord, Lord Falconer, made in his original submission on an earlier amendment, and we have not followed it up very much. Clause 7(1)(c) states:

“that the court is required to give permission for material not to be disclosed if it considers that the disclosure of the material would be damaging to the interests of national security”.

Now, who gives evidence about the interests of national security? It must be, by virtue of the nature of the proceedings, the uncontested evidence of those who are responsible for security. What exactly is meant by the interests of national security is something that I wish to pursue, perhaps at the next sitting of this Committee. In some definitions, it can refer to economic interests, and there are all sorts of others, as well as simply terrorism, which is the context in which we think of national security at the moment. We will need a better definition in due course.

The use of “must” in this clause reduces the judge’s power virtually to nil. The grounds put forward by the Minister may be reduced to the interest of national security, but as I have said, as the Bill is drafted those interests will be defined by the Minister himself. Clause 6(3) instructs the judge to ignore two very relevant considerations: first, that there may be no requirement on the Secretary of State to disclose; and, secondly, that the intercept evidence which the Secretary of State intends to put before him is inadmissible in the very proceedings he is supposed to be judging. If intercept evidence is inadmissible in open court, surely it is inadmissible in closed court. Intercept evidence would have to be normally regarded as inadmissible in such circumstances.

The word “may” will give the judge a discretion to decide what is proportionate and necessary in all the circumstances that come before him. It will give the judge control and power to manage proceedings, and the ability to decide how the procedure will be carried out and which type of procedure would be more appropriate. It will give the flexibility that I talked about in relation to the amendment that we debated earlier.

[Lord Falconer of Thoroton]

My Lords, this is a key amendment. It has to be read alongside Clause 7(1)(c). The effect of the amendment tabled by the noble Lords, Lord Hodgson and Lord Thomas of Gresford, would be that once it was established that a disclosure to a claimant would be damaging to the interests of national security, it would be open to the court, balancing all the factors for and against non-disclosure, to determine that the case should involve the option for the defendant to have a closed material proceeding. If the position were exactly as the noble Lord, Lord Thomas, suggested, and there was some damage to national security but it was extremely minor and only in respect of one document when there were millions of other documents whose disclosure would not do any harm at all, even if the Secretary of State certified that minor harm would be done, it would be open to the court to say, “Yes, we accept that there will be damage to national security but it does not warrant a CMP procedure”. That would give the judges some degree of control.

Currently, if the Secretary of State for Foreign and Commonwealth Affairs said, “I have spoken to the security services and they tell me that if you disclose this, it will damage national security, and I believe that to be true”, I find it very difficult to imagine that a responsible judge would be able to say no. Once the judge has said yes to that proposition, he or she would be obliged under Clause 6(2) to say, “This is now a case in which an application can be made”. The consequence of that is that Clause 7(1)(c) would apply. Rules of court would have to be made that would then allow the Secretary of State or the relevant party to make an application. If in respect of an individual document or piece of information the Secretary of State says, “I have spoken to the security services and they tell me that disclosure of these 25 documents would damage national security in quite a mild way”—they would not say that, but let us imagine that they did—the judge would have no discretion.

The correct course, if the case is made that we need to change the legal position, is that the judge should have a discretion. Again, I emphasise that what the Bill is trying to do is not protect national security—that can be protected by the case being pulled—but ensure a fair trial. I look to the noble and learned Lord to justify the fact that there is no balance and no discretion. Why is there an obligation to opt for CMP even if the damage to national security would be very mild? The noble Lords’ amendment would get round this and give the judges real discretion.

Justice and Security Bill [HL]

Debate between Lord Thomas of Gresford and Lord Falconer of Thoroton

Wednesday 11th July 2012 Lords Chamber

[Lord Thomas of Gresford]

That is a matter for clarification by people who know about it and we will look into that later.

[Lord Falconer of Thoroton]

I am impressed by what has been said about the opportunistic opportunities that this gives. At the moment I am bewildered by what it is suggested the claimant would want to use closed material proceedings for. I can see the point about the appearance of equality of arms, but it strikes one initially as being a slightly odd conclusion to reach. I am sympathetic to the idea that the courts should make sure, as the noble Lord, Lord Pannick, is saying, that every other option has been tried, but I would be grateful if the noble Lord, Lord Thomas, would explain what are the circumstances in which the claimant—a man such as Binyam Mohamed in an ordinary civil litigation—would want to keep things secret. The noble Lord, Lord Lester, is going to answer.

--- Later in debate ---

[Lord Falconer of Thoroton]

That was my fault. More generally, I have two further points. First, I now understand the point made by the noble Lords, Lord Hodgson and Lord Thomas. I did not understand it previously. I thought that they were talking about the claimant keeping material back, but I now understand that they were saying that it should be possible for the claimant to say that he has not seen the material, but that the judge should see it, even if the claimant does not. I can see force in relation to that. Even though it appears to give equality of arms to the claimant, it is in fact a very unequal equality because the claimant has not seen the material and the defendant has seen it. The tactical decision that the claimant will make in litigation is quite tricky.

[Lord Thomas of Gresford]

I think I made precisely that point—that it was not equality of arms but a step towards equality of arms, and it was better than the present situation.

[Lord Falconer of Thoroton]

Yes, and indeed my noble and learned friend—although I should not refer to him as learned, but he is learned in every other respect—Lord Beecham is saying that that is exactly the point that the noble Lord, Lord Thomas, made. There is agreement all round on that.

Where we come out in relation to this is: prove your case. If you do that, then having no balancing or requirement to go through steps beforehand is an inadequate response. We favour more the amendments tabled. We particularly like the idea of flexibility that the noble and learned Lord, Lord Woolf, and the noble Lord, Lord Thomas, have advanced. We hope that the Government will, having heard the debate, produce a reformed approach that will reflect a pretty unanimous view around the House on how best to deal with this issue.

--- Later in debate ---

[Lord Falconer of Thoroton]

My Lords, I am grateful for that constructive indication. I would co-operate fully in trying to draft an answer that reflects what the noble and learned Lord is saying. I understand him to be saying that if a PII application were made, the judge would be able to say, “You cannot keep all this secret. You should deal with it in a CMP”. That is what I understand the noble and learned Lord to be saying. I think he is nodding, although it may be an involuntary twitch. Assuming that he is nodding, there seems to me to be a problem in the drafting because it gives the court the power to make a CMP order only where there is an application by the Secretary of State. I would be more than happy if the solution reached was to apply to the judge who has the power to decide, balancing all the factors, whether this should be PII, complete disclosure or a CMP. That is not what the Bill says now but that is broadly what I understand the noble Lord, Lord Thomas, to be arguing for—the noble Lord, Lord Lester, is nodding—and the noble and learned Lord, Lord Wallace, to be saying. I am more than happy to sit down with everybody and draft that but that is not the current position.

[Lord Thomas of Gresford]

Perhaps I may add that my Amendment 45, which we have not come to, is designed to replace the word “must” in Clause 6(2) with “may”—in other words, a discretion for the judge to decide whether to make a declaration based on the criteria that he must apply.

Crime and Courts Bill [HL]

Debate between Lord Thomas of Gresford and Lord Falconer of Thoroton

Wednesday 27th June 2012 Lords Chamber

[Lord Thomas of Gresford]

My Lords, going back some 25 years, I remember being warned in 1987: “You realise, don’t you, that Mrs Thatcher has never appointed anybody as a High Court judge who has been overtly political?”. I was about to stand for the 1987 election. I stood; I lost for the eighth time; but that did not dissuade me. My point is that then, how the system worked was completely opaque. You did not know what recommendations were being made. You did not know when you had scored a black mark. I recall a close colleague once seeing his file in the Lord Chancellor’s Department, which said in terms that he had fought and lost eight elections as a Liberal candidate—he was so close a colleague that he had been mixed up with me. I am sure that that held him back for a long time from obtaining the appointment that he ultimately did.

I was slightly shocked to hear that we still have a non-transparent system whereby the Lord Chancellor is consulted and becomes involved in the appointment of judges, although there is nothing formal about it. I did not know that. It is opaque. The Bill makes it absolutely transparent that the Lord Chancellor will play a part, and I think it is very good that he should. He should listen to other people who are high in the profession and to what a lay person thinks of a particular appointment. His view may change. I do not think that the Lord Chancellor would necessarily dominate such a selection committee, certainly not if he has a political angle. There may be a toing and froing of views within that committee but we will know that it is happening because he is on it. Consequently it will be a far more satisfactory system than what we have heard is happening now: the Lord Chancellor, without it being in any statute, is involved in some way. That is wrong and I think that the Bill is preferable.

[Lord Falconer of Thoroton]

I was rather appalled by the mischaracterisation by the noble Lord, Lord Thomas of Gresford, of what the noble and learned Baroness, Lady Butler-Sloss, said. My experience as Lord Chancellor, when not making the appointments, was that I remained regularly in touch with the judiciary. If I had not remained regularly in touch with the judiciary on issues such as the funding of courts and the difficulties that the judges were facing, I would have regarded myself as not performing my job as Lord Chancellor correctly. If you are a Lord Chancellor—or now, Secretary of State for Justice—who does not know the leadership of the judiciary, that would be a very bad thing. Indeed this idea expressed by the noble Lord, Lord Thomas of Gresford—that it is in some way a sort of secret-sounding basis—is wrong. I am sure that his misunderstanding was not deliberate. He was looking back to a time 20 years ago when he was looking for a position.

This side of the Committee supports the amendment tabled by the noble Lord, Lord Pannick. We earnestly ask the Government to think again about this provision. Perhaps I may explain why we take that view. The basis of the settlement reached and approved in the Constitutional Reform Act 2005 was that the time had come for the appointment of judges to be clearly depoliticised. The justification for the process that then existed was that although the Lord Chancellor was Labour or Tory and appointed by the Prime Minister, he nevertheless had especial independent roles that made it possible for a political appointment to appoint the judiciary.

We in the then Government took the view, supported by the Liberal Democrats and endorsed by both Houses of Parliament, that in a period of time and a generation where people had to have complete confidence that the judiciary was not being appointed on a political basis, there needed to be a structure in which people would have confidence that you were appointed on your merits as a respected judge. That was the basis of the constitutional settlement reached. Those who considered it in detail were of the view—and I agreed with this view—that the state, the Executive, had to have a stake in the appointment of judges so that there was part of the Executive in Parliament that would defend the system and defend the appointments. That is why the Lord Chancellor has the power to veto some appointments and to reject others.

It is incredibly important for the standing of the judiciary and the separation of powers that that essential separation—that essential constitutional settlement—not be affected. The proposal made by the coalition goes right to the heart of that constitutional settlement. Bringing the Secretary of State into the process would not even have the redeeming feature of the old-style Lord Chancellors, which is that they had an independent role as a judge as well as being a politically appointed Minister. What Ken Clarke said about his role—my noble friend Lady Jay has quoted it—exactly reflects what the constitutional settlement envisaged; namely that he should be a member of the Cabinet with a particular statutory duty as imposed in Section 1, but essentially a political Minister without anything else to distinguish him from other Ministers in the Government. The two roles that we are talking about here are the president of the Supreme Court and the Lord Chief Justice. The president of the Supreme Court is probably the most important judge for the whole of the United Kingdom. The Lord Chief Justice is undoubtedly the most important judge for England and Wales.

The proposal envisages that the commission appointing the president of the Supreme Court should consist of one person who is not legally qualified, one judge of the court, one member of the Judicial Appointments Commission for England and Wales, one for Scotland and one from Northern Ireland, and, if he chooses, the Lord Chancellor. I know Ken Clarke well and admire him greatly. I have absolutely no doubt that, in a group such as that, he would have no difficulty in ensuring that his choice was obtained. The noble Lord, Lord McNally, is shaking his head, but I tell noble Lords that Ken Clarke’s choice would prevail. It would not just be a matter of appearance; it would be a matter of actuality. Go forward in time and imagine someone not of the ethical quality and standard of Ken Clarke as Lord Chancellor. For example, there is the example given by the noble Baroness, Lady Kennedy of The Shaws: “I don’t want the best lawyer; I want the person who is most against the Human Rights Act”. That is a perfectly conceivable position for a Lord Chancellor to take.

--- Later in debate ---

[Lord Falconer of Thoroton]

I think that there is a misunderstanding here. As I understand it, the noble Baroness is saying that when the veto is used it is kept secret. It is not, so there is no question of gossip. The Lord Chancellor is willing to use that veto where appropriate. I have no problem with that and it does not cause difficulty. In the proposed system, there would be no transparency about the role that the political Minister had played; indeed, it would be assumed that he or she was the person who had dominated the process. It would profoundly undermine the settlement. At the moment, I can see no benefit from it. I have not had the pleasure and privilege of reading the letter that was sent to the noble Baroness, Lady Prashar. I have heard the speech of the noble Baroness, Lady Falkner, which was very persuasive in many respects. However, I am unable at the moment to see the basis for departing from a constitutional settlement that is intended to ensure the sanctity of the process. It is an independent process in which one is judged on one’s merits, and it keeps politics out of it except for the exercise of a transparent veto.

[Lord Thomas of Gresford]

Would the noble and learned Lord not agree that it was not the best moment in the appointment of the judiciary, and that it does appear that political influences were coming into the question of who was to be appointed? Would it not have been better for the difficulties and the problems between the Lord Chancellor and the appointments commission to have been sorted out in a committee, such as that proposed in this Bill?

[Lord Falconer of Thoroton]

Game, set and match to this side. As I understand it, the noble Lord is asking whether it is so wrong that people might think that political influences have been brought to bear on the appointment, because the Lord Chancellor, performing a constitutional role, says explicitly “I don’t want”, or “I am thinking of vetoing”, the choice that has been made on legal merits. As I understand it, the noble Lord, Lord Thomas of Gresford, and the noble Baroness, Lady Falkner of Margravine, are saying, “Let’s keep all the political influences secret”. The noble Lord is shaking his head; I am not sure what he has in mind.

[Lord Thomas of Gresford]

I am not saying that. I am saying that had the Lord Chancellor been able to discuss in a committee—such as that is proposed—the merits of the particular candidate, we would not have had something which did not do the judiciary any good.

[Lord Falconer of Thoroton]

If the Lord Chancellor said “I want this candidate” and persuaded everybody, none of that would have been apparent. People would doubt the independence of the appointment from the political situation, or the political influences on the position. Do not be under any illusion; if the Lord Chancellor proceeds with this proposal, those people who have had dealings with the constitutional settlement will think that he is, without properly understanding it, going against the basis of the constitutional settlement which the noble Lord, Lord McNally, worked so hard to get through. As he said on Monday, the noble Lord, Lord Goodhart, was one of the main Liberal Democrat architects of the constitutional settlement, as was, as he also acknowledged on Monday, the noble and learned Lord, Lord Woolf. What on earth is the reason for so undermining the political independence of the judiciary?

For these reasons we support the amendments that are being made. If, as I think is unlikely, they are put to the vote today, we will support them. I earnestly ask that the Minister reconsiders the Government’s position on this, and the Lord Chief Justice’s position. It would be a really bad idea if people thought that a Conservative or Labour Secretary of State for Justice, not the Lord Chancellor, had appointed the Lord Chief Justice and the president of the Supreme Court.

--- Later in debate ---

[Lord Thomas of Gresford]

My Lords, before the Committee sat I informed the noble Lord, Lord Pannick, that I was fairly relaxed and neutral about his amendment. However, the more I have listened to the argument, the more I have come down on the Government’s side. I recall the very unseemly row when the former Lord Chancellor’s veto was exercised in relation to an appointment, and I believe that I put down a Parliamentary Question. I think that he reversed his decision before I got the Answer, but I certainly tabled a Question about it. There was a furore at the Bar and I was approached by many people to do what I could to defend the reputation of a person who was considered to be the best judge in a particular division. It was extremely unseemly and the Lord Chancellor backed down. What did that say? He had given his veto and then he withdrew it and the appointment went ahead. All these matters should have been sorted out but not in such a public way as to damage the reputation of the person concerned and damage the reputation of the Lord Chancellor, if it needed to be damaged any further. It did not resolve the situation.

I have heard the debate and, as I understand it, the Lord Chancellor does have discussions behind the scenes with the Appointments Commission. That is what was said in terms by the noble Baroness, Lady Prashar. I do not think that that is right. I think we should have an open system. She said that it was open and transparent. It was not—I did not know about it, although I was sufficiently involved to put down a Parliamentary Question about the matter in issue.

[Lord Falconer of Thoroton]

How would the discussions between the Lord Chancellor and the other members of the committee that the noble Lord envisages be transparent?

[Lord Thomas of Gresford]

The fact that it is happening is transparent. That is where the argument can be held and not in public, which damages people’s reputations. The noble Lord said that the Lord Chancellor will always have his way. What sort of a pushover does he think these people in the commission are that they will simply bow down to a political figure? I do not believe that the chairs of the Judicial Appointments Commission in Northern Ireland, Scotland, England and Wales are going to follow a political lead because the Lord Chancellor does not like someone on political grounds. He may have some knowledge that does not involve the politics of the matter and that would persuade the other members of the commission, but I do not think that he would persuade them on political grounds, which is what the noble and learned Lord, Lord Falconer, said. He nods. Perhaps he was a very persuasive Lord Chancellor in private.

[Lord Falconer of Thoroton]

Under the new system, I would have the power. That is the point.

[Lord Thomas of Gresford]

He had the veto, although I do not think that he ever exercised it.

[Lord Falconer of Thoroton]

I never exercised the veto, although my successor considered it and everything was open.

[Lord Thomas of Gresford]

Why did he exercise it? We do not know. Did he say so at the time? He did not say, “For political reasons I do not want that person as the head of the division”. He did not give us his reasons. It was not discussed with anybody. He just vetoed that appointment and it was unfairly damaging to the person concerned.

--- Later in debate ---

[Lord Thomas of Gresford]

My Lords, I support the amendment for all the reasons that the noble Lord, Lord Pannick, gave. However, I would suggest an alternative. If we are not going to go to 75, the alternative is to appoint judges to the Supreme Court who have not gone through the processes of the High Court, the Court of Appeal and so on. We have the power now, apparently, to appoint people to the Supreme Court who have not been in the Court of Appeal. It was interesting that, on Monday, the noble and learned Lord, Lord Lloyd of Berwick, said, “Of course, members of the Supreme Court will have come from the Court of Appeal”. I do not think that that is necessary. I think that the pool should be broadened. There are people in academic life and lawyers at the Bar who would be appropriate as members of the Supreme Court. The age of 70 is ridiculously low. If it is to stay at that, people should be appointed in their 50s—early 50s perhaps—to the Supreme Court without having to go through the cursus honorum required at present.

[Lord Falconer of Thoroton]

My Lords, I strongly support the amendment for the reasons given by the noble Lord, Lord Pannick, the noble and learned Baroness, Lady Butler-Sloss, the noble Baroness, Lady Jay, and the noble Lord, Lord Thomas of Gresford. It is an important amendment on a matter that is already causing difficulty. The loss of the noble and learned Lord, Lord Collins, from the Supreme Court was a direct result of the reduction in the retiring age. The Government now have an opportunity to do something about that, because this is a legislative opportunity.

Crime and Courts Bill [HL]

Debate between Lord Thomas of Gresford and Lord Falconer of Thoroton

Monday 25th June 2012 Lords Chamber

[Lord Thomas of Gresford]

Perhaps I may be permitted to intervene on this matter. The lifestyle of a High Court judge is of course very different from that of a circuit judge. High Court judges sit half the time in London and half the time on circuit. Circuit judges do what they are entitled to do; they sit on circuit. Looking after a family is far easier if you are a circuit judge than if you are a High Court judge.

[Lord Falconer of Thoroton]

I will not intervene on his intervention, but the noble Lord is wrong.

Privacy Injunctions

Debate between Lord Thomas of Gresford and Lord Falconer of Thoroton

Monday 23rd May 2011 Lords Chamber

[Lord Thomas of Gresford]

We on these Benches welcome the report, which recognises that where secrecy is ordered it should only be to the extent strictly necessary to achieve the interests of justice. We also welcome the provision of notice to the press of an application of this type and the requirement of an openly available judgment. Does my learned friend—my noble friend—

[Lord Falconer of Thoroton]

My noble and learned friend.

[Lord Thomas of Gresford]

Does my noble and learned friend accept that Article 10 of the European Convention on Human Rights, which provides for the right to freedom of expression, is qualified? It is that the exercise of that freedom,

“carries with it duties and responsibilities”,

and,

“may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society”.

It specifically refers to,

“the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary”.

Would he agree with me that judicial authority must be maintained? As the noble and learned Lord, Lord Falconer, said, the court sees the evidence and comes to a balanced judgment, and any attempt to interfere with that, even by the use of parliamentary privilege, simply because a politician cannot agree with the judgment when he does not know the facts, is to be deplored?

Parliamentary Voting System and Constituencies Bill

Debate between Lord Thomas of Gresford and Lord Falconer of Thoroton

Tuesday 8th February 2011 Lords Chamber

[Lord Falconer of Thoroton]

I am grateful to the noble and learned Lord for that opportunity. As I am sure that the noble and learned Lord will confirm, a public hearing simply involves an opportunity for people to come to a room—a town hall or a village hall—to make or read a statement. It is recorded, and that is it. The next person then stands up and makes a statement, and then he or she sits down. It goes on like that. A record is kept of what is said, but there is no resolution of any issues. The statement of what is said is then, I assume, placed on the web so that everybody can see what was said

A public inquiry would involve Mr X saying, “I think that the boundaries should be here”, and Mr Y saying, “I think that the boundaries should be there”. Then the chair—having heard all the representations that people want to make, determining what the process is, having heard what everybody has said—says, “I recommend to the Boundary Commission that it should draw the boundaries there”. So it is a process where issues are identified and some resolution is given. That is the fundamental difference.

[Lord Thomas of Gresford]

That is the weakness in the position at present and as outlined by the noble and learned Lord: there are two recommendations. There is the recommendation from the chairman of the inquiry and then the Boundary Commission makes a recommendation to the Secretary of State as to where the boundary should be. What is the need for a double decision?

[Lord Falconer of Thoroton]

The effect of the Bill and all previous Bills is that the Boundary Commission's conclusions are in practice final. Yes, they have to be given to the Secretary of State, but the Bill—in my view, correctly—takes away any discretion from the Secretary of State to do anything other than lay them before Parliament, so, in practice, they are final.

The Boundary Commission does not come in any shape or form from the locality; it does not hear local representations; and it does not hear argument about where the boundaries should be. It is fundamentally different; it is carrying out an administrative process.

[Lord Thomas of Gresford]

Is the difference, therefore, that the Boundary Commission will be the body that considers all representations, whether oral or written? Will this not be more desirable than it simply acting administratively, as the noble and learned Lord says, upon the recommendation of somebody else?

--- Later in debate ---

[Lord Falconer of Thoroton]

Absolutely not, because where, as a result of the representations made at written stage, an issue is identified that would be assisted by hearing people locally, not only do you get local engagement—which everybody thinks is important—you also focus on a particular issue with somebody hearing and resolving the arguments. Of all the people in the world who would think that that was a worthwhile process, I can think of nobody who would regard it as more so than the noble Lord, Lord Thomas of Gresford, who in all my years in the House has upheld every single aspect of such a process.

[Lord Thomas of Gresford]

It is important that the Boundary Commission, which has an overall view, should be the body that takes the decision and makes the final recommendation.

[Lord Falconer of Thoroton]

I apologise for not making this clear. It will, but with the benefit of the recommendation made by the chair after a local inquiry.