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

Debate between Lord Thomas of Gresford and Lord Pannick

Report stage & Report stage (Hansard) & Report stage (Hansard): House of Lords
Wednesday 17th June 2020 Lords Chamber

[Lord Pannick [V]]

As the noble and learned Lord, Lord Falconer, said, Amendment 10 is now academic, but it provides an opportunity to mention that one of the concerns of your Lordships’ Constitution Committee is that Bills regularly seek to confer on Ministers the power to create criminal offences.

Paragraph 21 of the committee’s report on this Bill— HL Paper 55—said that the conferral of delegated powers to create criminal offences, particularly those that are subject to imprisonment, is “constitutionally unacceptable”. We made the same point in paragraph 30 of our report of 9 June—HL Paper 71—on the constitutional issues raised by Brexit legislation. There needs to be a strong justification for departing from that general principle. I hope, as I know do the other members of your Lordships’ Constitution Committee, that Ministers will take account of these important principles. If they do not and they bring forward similar clauses in other Bills, we will report on them accordingly to the House.

[Lord Thomas of Gresford [V]]

My Lords, as I said in Committee, it is a matter of important principle that criminal offences must be clearly defined. I pointed to the criminal offences created, without consultation or debate, by way of regulations, in connection with the current lockdown. I pointed to the fact that they had caused confusion between the Prime Minister and his cohorts and virtually the rest of the country. Since I spoke on that matter, these offences are being amended, or new offences are being created, on, it seems, almost a weekly basis.

As my noble friend Lord Marks pointed out in the previous debate, there can be no clarity as to even the topic of a future international agreement, so there is no clear context within which this House can consider the power to create criminal offences in the field of private international law.

Last week, when we came to debate the Agriculture Bill, I was interested to note that precisely this point had been made by the Delegated Powers Committee: that it was against principle for sentences of imprisonment to be imposed by way of regulation. That was part of the original agriculture Bill, which fell at the time of the general election. In the new Agriculture Bill, Defra has withdrawn its position and is no longer asking for the provision of power, by regulation, to create criminal offences punishable by imprisonment. To my mind, this is a very good way of proceeding, and I hope that it spreads to other government departments.

Counter-Terrorism and Security Bill

Debate between Lord Thomas of Gresford and Lord Pannick

Wednesday 28th January 2015 Lords Chamber

[Lord Thomas of Gresford (LD)]

I have an amendment in this group. It may be a miserable little amendment suitably to be looked at at 11.20 pm. It says simply that any regulations under the clause should be by way of affirmative resolution.

Perhaps I may say something a little more widely about the group. When I looked at Clause 36, the first question that came to my mind was: what is it for? You do not get very much out of the wording. It seeks to provide advice and assistance to the independent reviewer. Why and for what purpose? Then we look at what the regulations are to contain. They may include provision about,

“particular things that the board may or must do”.

This lack of clarification about the purpose of the clause is reflected in the amendments tabled by the noble Baroness, Lady Smith, and my noble friend Lady Hamwee.

I was quite interested in Amendment 118F because it contains provisions which I think would have shocked to the core the Home Secretary in the previous Government—the thought that these wide-sounding provisions should be given to a board. On the other hand, my noble friend stresses that this should be about privacy and civil liberty concerns. I think that if it were about privacy and civil liberty concerns, we would understand a little more about it. However, as it is, the lack of clarity about what it is for means that we are about to have the anvil dropped from a large height by the noble Lords, Lord Pannick and Lord Carlile. I trust that we will hear a little more in clarification from the noble Lord in reply.

[Lord Pannick]

From a modest height, I am very concerned that Clause 36 will undermine the essential role of the independent reviewer. The current holder of the post, David Anderson, and his predecessor, the noble Lord, Lord Carlile of Berriew, have achieved a remarkable degree of success. They have commanded the confidence of the public and of the NGOs that have expertise in this area. They have also commanded the confidence of the intelligence services and the Government. To command the confidence and, indeed, the respect of all these different constituencies is a deeply impressive achievement. However, that confidence and respect have necessarily depended on the personal independence, integrity and judgment of those who have performed this role. The job cannot be done by a committee. The clause is silent on whether the independent reviewer will share all the secret information with the board. If so, there is a real danger that he will not, in practice, be given such free access to confidential information in the future. If he is not to share the information with the board, I cannot see how it can do much to advise and assist him.

My other concern is that Mr Anderson, as has already been mentioned, has limited time to devote to the primary task of reviewing counterterrorism legislation. The very last thing that he needs is a committee structure that will inevitably use up his finite time which would be far better spent on the front line on essential activities of reviewing the operation of the relevant legislation. For all the reasons that have already been given and for these reasons, Clause 36, certainly in its current form, is a very bad idea. I hope that the Government will fundamentally reconsider it in the limited time before Report next Wednesday.

Counter-Terrorism and Security Bill

Debate between Lord Thomas of Gresford and Lord Pannick

Tuesday 20th January 2015 Lords Chamber

[Lord Pannick]

My Lords, in relation to the amendment of the noble Baroness, Lady Hamwee, concerned with the giving of reasons, and in relation to the concern of the noble Lord, Lord Harris, I suggest that the answer is the one given by the Joint Committee on Human Rights, from paragraphs 230 to 233. The obligation in the Bill should surely be that there is a duty to give the gist of the reasons. No one would suggest that all detailed reasons must be given, but if someone is told that their passport is being taken away they should be told the essence of the reasons why if this power is to be acceptable and not criticised as obviously unfair. It may be necessary to write in an exception. There may be security reasons why not even the gist can be given. It is fundamental that if you exercise a power of this sort you give the gist of the reasons for doing so.

[Lord Thomas of Gresford]

I wonder if the Minister could consider a concrete and perhaps not too remote example. Let us suppose the authorities in the United States were to send an e-mail to the authorities in this country, saying that X should be stopped; he is passing in transit through the UK and going to Ukraine— for instance—for terrorism purposes. Would that be reasonable grounds for stopping him and removing his passport? I would like the Minister to consider that. There would be no evidence or intelligence in the hands of the British authorities. A reason given to the passenger could, I suppose, be that their country says that their passport must be taken away; but would that be reasonable grounds? Could that possibly be the basis of the decision by the policeman or immigration officer?

Justice and Security Bill [HL]

Debate between Lord Thomas of Gresford and Lord Pannick

Monday 23rd July 2012 Lords Chamber

[Lord Thomas of Gresford]

My Lords, I shall speak to Amendment 69ZC in my name and those of my noble friend Lord Marks of Henley-on-Thames and the noble Lord, Lord Pannick. This Bill says nothing about the trial judge’s approach to the material that has been disclosed to him once the Section 6 proceedings have been completed. The word “material” is used throughout Sections 6 and 7, and Section 6(3) implies that the judge should consider intercept material: that is, material that would not be admissible in open proceedings under Section 17(1) of the Regulation of Investigatory Powers Act 2000. I remind your Lordships very briefly of what it says:

“(1) Subject to section 18, no evidence shall be adduced, question asked, assertion or disclosure made or other thing done in, for the purposes of or in connection with any legal proceedings [or Inquiries Act proceedings] which (in any manner)—

(a) discloses, in circumstances from which its origin in anything falling within subsection (2) may be inferred, any of the contents of an intercepted communication or any related communications data”.

Perhaps your Lordships will be only too aware of the campaign that the noble and learned Lord, Lord Lloyd of Berwick, has carried out, with my support, for intercepted material to be allowed as evidence in court, but that has never been a position that the Government would take.

The word “material”, which appears in Sections 6 and 7, is not evidence upon which the court may act. The amendments that have just been outlined by the noble Lords, Lord Hodgson of Astley Abbotts and Lord Dubs, spell out examples of such excluded evidence: evidence obtained by torture, inexpert opinion, or hearsay that cannot be admitted in the usual way by a notice to the other party. However, the amendment from the noble Lord, Lord Hodgson of Astley Abbotts, does not include the product of intercept.

It would be quite unacceptable for the trial judge to take into consideration, in determining the issues between the parties, anything that not only is never disclosed to the claimant but that would not be admissible in evidence if it were disclosed. The claimant would be doubly prejudiced: there would be evidence given against him in secret that was not admissible, if the judge were to take it into account.

The whole purpose of the civil rules of procedure is to ensure that the cards are on the table. Pleadings are followed by disclosure, and it is at that stage in particular that the parties take important decisions about preparations for trial, the nature and extent of the evidence they wish to call, including witnesses or documents and acceptance of offers, settlement of the case, payments into court and so on. That is why we have the system that we do: so that the cards are on the table before we ever get anywhere near a trial. In this Bill, the Government seem to want to deal from the bottom of the pack and, just for the purpose of saving the cost of settlement in a particular case, disregard the violation of centuries of open and accountable justice. Is it the unstated purpose of this Bill to reveal intercept and similar other inadmissible material to the trial judge in the hope that it will produce a judgment that is favourable to the Government? I hope that that is not the purpose of the Bill, but the way it is progressing leads me to believe that it might be.

My amendment has the merit of setting out in the Bill the parameters which the judge at trial will follow after he has concluded these Section 6 proceedings. He will exclude from his consideration anything that would be inadmissible if disclosed to him as material in closed proceedings. He will dismiss that when he comes to consider the issues in open proceedings.

[Lord Pannick]

My Lords, I support what has been said by the noble Lord, Lord Thomas of Gresford. I added my name to Amendment 69ZC because I was concerned to hear the noble and learned Lord the Advocate-General for Scotland say last Tuesday night, at col. 220, that the Bill would allow the judge to look at intercept evidence in closed proceedings. I had not previously understood that this was the purpose and effect of paragraph 9 of Schedule 2, and that is my fault. However, as a matter of principle it is surely one thing for the Bill to allow the judge in a secret procedure to look at material that is admissible in court but which the state is unwilling to have looked at in open court because of its sensitivity. One understands the purpose of those provisions. It is quite another thing for the state to be allowed to rely in the closed hearing on material that is, in any event, inadmissible in open court.

I had understood the Government’s defence of the closed material procedure to be that the state should not be in a worse position because the evidence on which it wishes to rely cannot be adduced in open court. To allow the state to rely on intercept evidence in the closed procedure—evidence that is inadmissible in open court—would put the state in a better position in a closed material procedure than in an open proceeding, and that cannot be right. Nor can it be a defence of such an arrangement for the Minister to argue, as he did briefly last Tuesday night when we touched on this important issue, that this is what happens in other closed material proceedings. I do not recall the House giving any consideration to this important issue on those occasions. We are now being asked to expand the scope of closed material proceedings very substantially, and I hope that we can now address the issue of principle.

Justice and Security Bill [HL]

Debate between Lord Thomas of Gresford and Lord Pannick

Tuesday 17th July 2012 Lords Chamber

[Lord Pannick]

My Lords, would the noble Lord clarify whether the court accepted the argument that it was outside the duties of the intelligence services because they were not themselves being sued?

[Lord Thomas of Gresford]

As I understand it, the court did not accept the argument.

--- Later in debate ---

[Lord Pannick]

My Lords, my answer to the point made by the noble Baroness, Lady Williams of Crosby, is that regrettably Clause 8(4) is wholly accurate because the nature of the special advocates and the task that they are required to perform is that they are not responsible to the individual in whose case they are appearing. They are not responsible because they cannot tell the person concerned the information that is known to them, as the lawyer in the case. They cannot ask the individual to comment on that information or to give instructions to them on that information. If they speak to the individual concerned, what the individual tells them—the special advocate—may be wholly irrelevant to the case, unknown to the client.

Although the special advocate system is made available as being better than no representation at all, it is inherently and fundamentally unfair in that the individual concerned does not know the nature of the case against them; and nothing that the special advocate does, however competent and industrious they are, can affect that. I therefore think that there is no advantage in seeking to supply in the Bill what would be a fig leaf to conceal the reality of the situation; and the reality of the situation is precisely as it is put in Clause 8(4).

[Lord Thomas of Gresford]

My Lords, it also raises a very interesting question about which all lawyers will be concerned: who pays? When the special advocate is appointed in civil proceedings, does the losing party pay? Does the person who made the application—namely, the state—pay, win or lose? Where do costs lie in an event like that? When you have a provision in the Bill such as Clause 8(4) here, which states that the,

“special advocate is not responsible”,

to the claimant, how can the claimant possibly be responsible for his costs?

--- Later in debate ---

[Lord Thomas of Gresford]

I speak to Amendment 58 in my name and that of my noble friend Lady Hamwee. Clause 7(1) contains five paragraphs of which (a), (b), (d) and (e) are largely procedural. But paragraph (c), which 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”,

goes to the heart of the issue. Does the judge have any function when he is considering an application? Can he carry out a balancing exercise in which he can weigh the interests of not disclosing material against the interests of justice?

My amendment is simple. I note that my noble friend Lord Lester and the noble Lord, Lord Pannick, have a similar one to follow. I will not weary your Lordships with the argument for any length of time. It introduces the instruction to the judge that he must balance his decision and not simply follow a rubric that is laid out for him by the statute as currently drafted.

[Lord Pannick]

My Lords, I am certainly not the heavy artillery to which the noble Lord, Lord Hodgson, referred, but I will offer him some small arms fire in support. Amendment 59 is in my name and that of the noble Lord, Lord Lester of Herne Hill. As with all the amendments in this group, and as indicated by the noble Lord, Lord Hodgson, it is a further attempt to address the core problem with which the Committee has been concerned in relation to Part 2 of the Bill: that is, the need to ensure that the court is given power to order a CMP in the exceptional cases in which such a need arises, but only where there is no other fair and proper means of balancing justice and security.

Amendment 59, as the noble Lord, Lord Thomas of Gresford, said, is in similar terms to his Amendment 58. It would ensure that the rules of court would require the judge to ask whether the damage that the disclosure would do to national security would outweigh the public interest in the fair and open administration of justice. The Bill as drafted, as I understand it, would enable a CMP to be imposed even if the judge concludes that the damage done by not moving to a CMP was minimal, and even if the damage to fairness by denying open justice was substantial on the facts of the individual case. That cannot be right, especially when, as we have previously debated, a decision by a judge not to adopt a CMP would impose no obligation on the Secretary of State to disclose the material, because they would have the option of not continuing to defend the proceedings.

Amendment 59 is designed to implement the objective that was stated by the independent reviewer of terrorism, Mr David Anderson QC, in his oral evidence of 19 June to the Joint Committee on Human Rights. He said:

“The closed material procedure is a weapon that could usefully be added to a judge’s armoury, but it should be for the judge to decide on the fairest way to dispose of a case”.

At present, Clause 7 prevents that desirable objective from being achieved.

I will speak also to Amendments 60 and 62 in the group, to which I have added my name. Amendment 60 would require the judge, if ordering a CMP, not just to “consider requiring” a summary of the closed material to be provided to the other parties—it would require that such a summary of the closed material be provided.

Amendment 62 would require the court to ensure that the summary of the closed material contained sufficient information to enable the excluded party to give effective instructions to his legal representatives and to the special advocate. It would require the summary to satisfy that test even if it would impinge on national security. The reasoning behind Amendment 62 is that it sets out the bare minimum necessary to ensure a fair hearing. It is based on the criteria that were stated by the Appellate Committee of this House in the AF case in 2009 in relation to control order cases. Sufficient information was required by the Appellate Committee in a control order case to enable the subject to give effective instructions, even if such disclosure would have damaged national security. I declare an interest: I was counsel to AF in that case.

Justice and Security Bill [HL]

Debate between Lord Thomas of Gresford and Lord Pannick

Tuesday 17th July 2012 Lords Chamber

[Lord Pannick]

My Lords, I sympathise with the objectives of the amendment and I agree with much that was said by the noble Lords, Lord Thomas of Gresford and Lord Marks of Henley-on-Thames. However, I have this concern about the amendment: in practice it will be very difficult indeed for judges to determine whether to move into a closed material procedure as an abstract preliminary question. We are far more likely to get a sensible result from a judge on whether it is necessary to move into a closed procedure, and a far more sensible result on the balance of competing interests, if the judge is fully aware of all the detail of the case and has heard the opening from the parties concerned on both sides with the open material. The judge will then be able to take a far more informed and sensible view on whether this exceptional procedure is really required.

I am very concerned that if these matters are addressed as a preliminary question, we may well find that judges—very properly, to protect national security—are going to authorise far more closed material procedures than would actually be necessary if the judge were fully aware of all the details of the case and had heard at least the opening statements on an open basis.

[Lord Thomas of Gresford]

Would not the problem then arise that disclosure is a preliminary part of the procedure in ordinary civil proceedings? It is upon disclosure and the pleadings that very important decisions are made: for example, for payments in and settlement of a case, and so on. As I understand the noble Lord, he is saying, “Well, leave it until the trial has begun and both sides, or at least the plaintiff, have opened their case. Only then should issues of disclosure take place”. Now, suppose the trial has started, the expense has been incurred, and something very significant appears as a result of a disclosure application which makes months of work completely unnecessary. Is that not the danger of his course?

[Lord Pannick]

The noble Lord is of course correct; that is a danger. However, very often, highly sensitive questions of disclosure that raise issues of PII are not dealt with as abstract, preliminary questions, but on the basis that in civil litigation, one needs to see precisely how the case is going to be argued, how material is going to be deployed, and what the issues are. I suggest to the noble Lord that it is going to be very difficult indeed, particularly in this exceptionally sensitive area, for a judge hearing matters on a preliminary basis to form an accurate and informed assessment of what we all agree are going to be exceptional categories of cases where closed procedures are appropriate, on this preliminary basis. That is my concern. It is a difficult issue.

[Lord Thomas of Gresford]

This is a very useful dialogue. I hope other noble Lords are listening. Is it not the case that strike-out applications, for example, and all sorts of issues are tried on the pleadings? Donoghue and Stevenson was tried on the pleadings. Major cases are tried on the pleadings because, unlike criminal procedures where the defence statements are laughable, in civil proceedings the case must be set out very fully and considered by both sides, and all the evidence must be produced up front, well before the trial starts.

[Lord Pannick]

The noble Lord is correct and I accept, at least to an extent, that there may be Clause 6 cases where a discrete, fundamental issue can be identified at an early stage. However, I suggest that there will also be cases—the majority, I suspect—where the issues will not be formulated and clarified in this specific way on a preliminary strike-out basis. I am concerned that it is inevitable that there will also be cases where fresh evidence comes to light or where, as a result of the way the case is put in the trial, new Clause 6 issues arise. It seems impractical to require the trial judge, who has already started to hear the case, then to say, “I am going to stop”, whereupon the issue would go off to a disclosure judge. There are real issues here and I am far from convinced that the amendment, the purposes of which I entirely sympathise with, will result in fewer CMPs than the procedure that is in the Bill.

Justice and Security Bill [HL]

Debate between Lord Thomas of Gresford and Lord Pannick

Wednesday 11th July 2012 Lords Chamber

[Lord Pannick]

As a matter of principle, the claimant may believe that the secret material would exonerate him. PII would prevent the secret material from being disclosed to him because it concerns security information, but he is confident that he has done nothing wrong—there is no reason why he should not be given naturalisation or some other benefit. He just wants the judge to be able to look at it. The claimant might prefer the judge looking at it without the claimant seeing it to the judge not seeing it at all.

[Lord Thomas of Gresford]

It is more than the judge merely looking at it, though; the claimant might want the judge to take it into account through closed material procedures. That is the point. If I were acting for a claimant, knowing that the Secretary of State had a discretion over whether to go for a PII application that would exclude material or a closed material procedure that would include material, make it admissible and allow the judge to take into account, and the Secretary of State chose PII, I would think—and I am not a very suspicious person—that the Government were seeking to conceal something that the judge should have in mind in my favour. I might very well advise my client to take the risk.

In, I think, the case of Gillan the court suggested to the litigant, having looked at the material, that perhaps closed material procedures would assist him, but his counsel did not take the risk and he was stuck with that. So even though the material apparently assisted him, because he would not ask the closed material procedures —unfamiliar territory to most of us—that material, which might have been in his favour, could not be taken into account by the judge. The judge might know about it but he has to cast it to one side under PII.

That is why I say there is such litigation advantage in the way that the Bill is framed. PII applications can exclude stuff that might be favourable to the applicant. I hope that that answers the question that the noble and learned Lord, Lord Falconer, raised.

I suggest that Amendment 47 is a neater way than Amendments 39 and 40 of incorporating further safeguards. It would provide that the judge must not make the declaration that a closed material application be made to the court unless he considered that the material was inadmissible on the existing common-law public interest immunity principles and that it was strictly necessary in the interests of justice. These simple amendments of course infer, first, that the judge has considered the question of public interest immunity. It may not be necessary for him to go through the whole process; one recalls that in the Guantanamo case there were some 9,000 documents, so it was likely to take months for a judge to carry out the public interest immunity exercise if he had to do it first. He could look at the nature of the documents and realise that at least some of them would be inadmissible. However, it is the judge and not the Secretary of State who decides whether closed material procedures should be introduced, after the judge has considered whether PII would be a better approach. Secondly, it requires the judge to consider whether it is strictly necessary in the interest of justice. That amendment puts the judge firmly in control of case management. As the Bill is drafted, the Secretary of State not only has the litigation advantage to which I have already referred but actually controls the procedure to be followed.

Crime and Courts Bill [HL]

Debate between Lord Thomas of Gresford and Lord Pannick

Monday 2nd July 2012 Lords Chamber

[Lord Thomas of Gresford]

My Lords, I support my noble friend in the amendment that is also in my name. She referred to people using television for their own purposes. There has been an example of that recently in Norway, where your Lordships will recall that a defendant has made every use that he possibly could to carry his message to the public. Your Lordships may think that that is an example of the sort of thing that we wish to avoid.

The noble Baroness, Lady Kennedy of The Shaws, was somewhat caught today by the two back-to-back Statements and was due to preside over the important recognition of the anniversary of the 7/7 massacres. Consequently, she is not able to be here to promote her Amendment 147AA. She has no problem in relation to the higher courts and neither do I—there is no reason why the Court of Appeal or the Supreme Court should fear exposure to the cameras—but she is concerned, and I share her concern to a considerable degree, that the sentencing remarks can possibly lead to problems, as my noble friend Lady Hamwee has just pointed out.

I have no doubt that sentencing remarks would be used only in high-profile cases with salacious details or where celebrities were involved. It would not be long before there was pressure, when sentencing remarks were made, for the camera to show the face of the defendant as he received his sentence or, even worse, the faces of the victim or their families at that critical moment about which I spoke at Second Reading. I am very concerned about that. We must avoid the business of the court being made entertainment for people. Criminal court is a very serious matter and the parameters must be considerably restrained. I support the amendment in my name and that of the noble Baroness, Lady Kennedy.

[Lord Pannick]

My Lords, I welcome Clause 22. Broadcasting will enhance the public understanding of our justice system, which in general works efficiently and fairly. It is important that members of the public are able to see that this is so through modern means of communication. As is often said, justice should be seen to be done.

There is also, of course, the possibility that allowing the cameras in may illuminate areas of court proceedings that are in need of reform. I entirely agree with what has already been said about the fundamental undesirability of cameras showing the evidence or, as the noble Lord, Lord Thomas of Gresford, said, the reactions of witnesses or victims at any stage of the court proceedings. I am sure that the Minister’s intention is to have regulations that would prohibit any of that, and I look forward to hearing what he says about why that matter should not be addressed in primary legislation.

I am a bit concerned by the final words of Amendment 147ZC, moved by the noble Lord, Lord Beecham, which say that filming would not be permitted if it would cause “undue prejudice” to any person involved in the proceedings. I can well understand that a defendant in a notorious case, in which there was a very strong argument for broadcasting the sentencing remarks, may say that to single him out for broadcasting would indeed involve prejudice. It would be most undesirable if people were able to present such an argument.

I am very concerned about Amendment 147A in the names of the noble Lord, Lord Thomas of Gresford, and the noble Baroness, Lady Hamwee. As I understand their amendment, it would prohibit the broadcasting of any part of the argument in, for example, the divisional court or the Court of Appeal, despite the fact that the issues raised may be of considerable public importance. If that is the noble Lords’ intention, that seems highly undesirable.

Crime and Courts Bill [HL]

Debate between Lord Thomas of Gresford and Lord Pannick

Wednesday 27th June 2012 Lords Chamber

[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.

[Lord Pannick]

I am grateful to the Minister, who says that he has been listening. I am sure that he has been, and I have listened to what he has said. I will certainly want to reflect, as I am sure the House will, on what the Minister described as a very important debate—and he is right. This goes to the heart of the relationship between the Executive and the judiciary. The Minister said that it is important to keep the Lord Chancellor in the process because the Lord Chancellor is responsible to Parliament and these are appointments at the very apex of the system. The Minister is right and no one disputes that the Lord Chancellor must have a role. The question is whether that role is best fulfilled as a member of the appointments commission.

The Minister and the noble Baroness, Lady Falkner of Margravine, emphasised that the veto is a nuclear option. There are two points to make about the Lord Chancellor’s existing powers. First, the fact that the veto is so difficult to exercise in political terms is highly material to the influence that the Lord Chancellor currently has. We need to be very careful about expanding the political role of the Lord Chancellor, or at least the political potential for involvement, through an appointments commission process. The second point, which has been made very forcefully by noble Lords who know how the system works, is that the Lord Chancellor at present does not just have a veto which is difficult to exercise. He can and does make his views known to the appointments commission during the process of consideration for appointment to these posts. There is nothing improper or secret about that. It is not a question of nudges and winks. It is called consultation. Plainly, the Lord Chancellor is entitled to be consulted by the special appointments commission that is going to appoint to these highly important posts. If the current system has defects, the alternative proposed by the Government is far worse, for all the reasons that have been pointed out, and no more transparent.

I will certainly reflect on this debate and I am sure the whole House will want to reflect on the matter and return to it on Report. I hope that the Government will reconsider this question over the summer and I am sure that if, as we have been told today for the first time, it is the Government’s intention that the Lord Chancellor will sit on the appointments commission, it is highly desirable that the Bill expressly makes that clear so that we all know what the Government intend on this matter of fundamental constitutional concern. For the moment, I beg leave to withdraw this amendment.

Legal Aid, Sentencing and Punishment of Offenders Bill

Debate between Lord Thomas of Gresford and Lord Pannick

Monday 23rd April 2012 Lords Chamber

[Lord Pannick]

My Lords, as your Lordships have heard, the amendment that noble Lords approved on Report by a majority of 45 votes would state the purpose of legal aid: to promote access to legal services within the financial resources that are made available by the Lord Chancellor and subject to the other provisions in Part 1 of the Bill. The amendment had its origins in a recommendation from your Lordships’ Constitution Committee, of which I am a member, and was tabled by noble Lords from all sides of the House—the noble and learned Lord, Lord Woolf, the noble Lord, Lord Hart of Chilton, who is also a member of the Constitution Committee, the noble Lord, Lord Faulks, from the government Benches and, of course, me.

The amendment echoes the wording of Section 4 of the Access to Justice Act 1999, which is the current statutory provision. It is similar to the statutory provisions that have been found in earlier legislation from 1949 onwards. The other place disagreed with this amendment after a debate that was restricted to 27 minutes—a point made by the noble Lord, Lord Higgins, a few moments ago. Those 27 minutes to which the other place was restricted concerned not just this amendment but two others approved in this House after Divisions and to which we will come. They concern the very important subjects of the independence of the director of legal aid and the mandatory telephone gateway, which we will discuss later this afternoon. All those subjects had to be dealt with in 27 minutes—hardly the thorough consideration that the Minister suggested in his opening remarks.

The Minister in the other place, Mr Jonathan Djanogly, and the Minister today have made four main points. The first, which was emphasised in the other place but has not been mentioned today, is that financial privilege was applied to the amendment. Your Lordships will know that financial privilege in the other place does not prevent your Lordships asking the other place to think again about an amendment. Financial privilege simply requires that the amendment be varied in this House from the original amendment. That is why the amendment now before this House is not exactly the same as that which was approved on Report.

I do not want to make this a debate about financial privilege but I hope I may be excused for saying that I know that many noble Lords were as surprised as I was that financial privilege was applied to Amendment 1. The original amendment made it very clear that access to legal services would come within the resources made available by the Lord Chancellor and in accordance with the rest of Part 1, and therefore that amendment had no financial implications whatever.

Your Lordships may also be interested to note that when I made these points to the authorities in the other place and I asked for a brief explanation of the reason for financial privilege being attached to this amendment, because neither I nor the others responsible for tabling this amendment could understand the point, I was told that no reasons are given for the decision on financial privilege. Again, I doubt that I am the only noble Lord who finds it very regrettable that this House should be told that financial privilege controversially applies to an amendment but noble Lords are not told why that is so.

However, that is a side-show. In any event, the amendment now before your Lordships responds to financial privilege, and it does so by making it clear beyond any possible doubt that the question of what financial resources to make available is a matter for the discretion of the Lord Chancellor and the Lord Chancellor alone. That is what the amendment says beyond any question. It also makes it clear that its terms and effect are subject to the provisions of this part—in other words, subject to the restrictions in the Bill on what topics are within the scope of legal aid.

[Lord Thomas of Gresford]

Can the noble Lord explain what this amendment therefore adds to the provisions in the Bill? That is what puzzles me.

[Lord Pannick]

I was coming to that. If the noble Lord will have a little patience, that was the second point made in the other place. My first point, which I just want to complete, is that, with great respect, I do not accept that this amendment has any financial implications whatever.

The second point made by the Minister in the other place was that made just now by the noble Lord, Lord Thomas of Gresford. What is the point of this amendment? The view taken by noble Lords on Report was that now that legal aid is to be confined by this Bill, it is absolutely vital that we retain in the legislation a statement of principle that the purpose of legal aid is to promote access to justice within the available financial resources. That is important for this reason. The Government are proposing to limit legal aid by reason of current financial constraints and Parliament is accepting that. However, we all hope and expect that the economy will improve and, when it does, Clause 9(2) gives the Lord Chancellor a power to modify the substantive provisions of Part 1 to bring matters back within scope. When the economy improves, the case for relaxing the temporary limitations on legal aid should be considered by reference to principle, and the principle is that stated—I hope uncontroversially—in this amendment, which is to Clause 1 of the Bill. It is vital that this principle is not forgotten by reason of the temporary financial constraints under which we are all operating, and I can think of no better way of preserving the principle than setting it out at the beginning of the Bill. I happily give way to the noble Lord.

[Lord Thomas of Gresford]

But is not the effect of putting this at the beginning of the Bill precisely what the Minister said—that is, it leaves it open to lawyers to bring applications for judicial review and to ask judges to determine whether the financial situation has so improved that the provisions for legal aid should be extended? Is this not just making more work for lawyers?

Legal Aid, Sentencing and Punishment of Offenders Bill

Debate between Lord Thomas of Gresford and Lord Pannick

Tuesday 24th January 2012 Lords Chamber

[Lord Thomas of Gresford]

My Lords, the concept that employment tribunals are a cosy chat between an employee and his boss in front of a very receptive body of people is quite wrong these days. An impression of unfairness is created for the employee who is seeking his rights when he finds perhaps even a QC appearing on behalf of a wealthy employer. I have appeared many times for employers, sometimes for employees and sometimes on my own behalf.

The excuse, or the reasons, given by the Minister would be far more acceptable if he were to say, “Well, if a union is backing an employee, that is fair enough; they can pay for legal representation”. If he is there on his own, why not just have the boss—the person who did the sacking—in front of the tribunal, not lawyers who in many cases are overpaid when they are dealing with the individual appearing in front of them?

[Lord Pannick]

Before the Minister sits down completely, I have a question arising out of his emphasis on legal aid being available for equality claims. If I have understood this part correctly, paragraph 40 makes clear that legal aid will be available if your claim is in connection with a claim that is within scope. Is it right, therefore, that if I am a dismissed employee and I wish to be eligible for legal aid under the new regime, I should add a discrimination claim to my claim for unfair dismissal and then both of them would be within scope for legal aid? If that is correct, the consequence of excluding general employment claims from scope will simply be to encourage unmeritorious discrimination claims to be brought in order to ensure legal aid for unfair dismissal claims.

--- Later in debate ---

[Lord Thomas of Gresford]

I was a member of the Criminal Injury Compensation Board for seven or eight years and resigned when the noble Lord, Lord Howard, introduced his tariff scheme in 1993. Reverting to the Scottish theme, I recall sitting in Glasgow on one occasion with two very senior Scottish QCs next to me. I was the junior member. We had an applicant in front of us who addressed us in a language that I did not understand. At that time, I had been married to my late wife for some 30 years. She was from West Lothian, so I was pretty well attuned to the Scottish dialect of the central belt. However, I noticed that my learned friends on either side were nodding as though they understood, so I said to the chairman, “What’s he saying?”, and the chairman replied out of the side of his mouth, “I haven’t a clue”, so I said to the applicant, “Would you mind speaking more slowly please?”. He looked at me and said, “Eh?”. He could not understand me, so there was a certain confusion. I there realised the importance of having an advocate who could explain the case clearly to the tribunal. On the other hand, the members of the Criminal Injury Compensation Board were, I am sure the noble Lord, Lord Beecham, will acknowledge, a pretty experienced bunch of people, and we handled most claims without representation and without any difficulty, so if there are priorities to be chosen here, this would not be one of mine.

[Lord Pannick]

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

Legal Aid, Sentencing and Punishment of Offenders Bill

Debate between Lord Thomas of Gresford and Lord Pannick

Tuesday 20th December 2011 Lords Chamber

[Lord Pannick]

My Lords, this has been a lengthy debate that has touched on a large number of very important issues. In responding, perhaps I may briefly take the attention of the Committee back to what we are debating: the terms of Amendment 1. With all due respect to the Minister, I simply cannot understand his objection to the amendment. It is not a matter of legal complexity, it is not a matter of legal expertise, and it is certainly not a matter of philosophy. Surely the amendment identifies in terms that I hope are clear and uncontroversial the aims of the legal aid system in our society. It recognises that the provision of legal aid must be within available resources, so it does not cut across the Minister's understandable desire to save money. There is no question of the amendment requiring a “blank cheque”, which was his phrase in answering criticisms of the Bill. Surely a statement of constitutional principle such as this is absolutely vital at the start of a Bill of this nature.

I suggest to noble Lords that the Government's refusal, through the Minister, to recognise a simple, and I hope uncontroversial, statement of principle in Clause 1 is deeply troubling in what it tells the Committee and the world outside the House about the Government's approach to legal aid and to the more detailed provisions that we will come to debate in Committee.

[Lord Thomas of Gresford]

Perhaps the noble Lord would outline what is meant by,

“in accordance with this Part”.

[Lord Pannick]

I will come to the noble Lord's concern that the amendment does not go far enough. My point is that if the Government are not even prepared to recognise the principle that the Bill should seek to secure, within the resources available, individuals’ access to legal services that effectively meet their needs, why should the Committee support the detailed reductions in the scope of legal aid that we will come to debate?

[Lord Thomas of Gresford]

I do not think that the noble Lord grasped my point.

[Lord Pannick]

I will deal with the noble Lord’s point if he will be patient; I prefer to deal with it in the course of my remarks and not at this precise moment. The Minister said that the amendment was unnecessary. I say with respect that that ignores the need for a statement of constitutional principle to assist the Lord Chancellor, the director, the courts and the public. The Minister suggested that these matters were inherent in the role of the Lord Chancellor. What, then, is the objection to putting the statement in the Bill?

The Committee heard support for the amendment from all sides of the House, and I am grateful to all noble Lords who spoke. The only noble Lords who spoke against the amendment, apart from the Minister, were the noble Lords, Lord Phillips of Sudbury and Lord Thomas of Gresford. Each was concerned that the amendment did not go far enough: that it was either anodyne or positively dangerous in cutting down on the possible provision of legal aid. I say to each of those noble Lords, and in particular to the noble Lord, Lord Thomas of Gresford, that his comments, with respect, ignore the provision that has been on the statute book since 1999: Section 4(1) of the Access to Justice Act 1999, the terms of which are echoed in this amendment. Under all Governments since 1999, that has been the state of the law, and Section 4(1) refers both to “the resources made available” and to provision,

“in accordance with this Part”,

so I cannot understand the objection to including those same phrases in Amendment 1.

[Lord Thomas of Gresford]

I do not think the noble Lord has grasped what I was saying. The amendment states,

“in accordance with this Part”,

but we have not determined what this part will cover. As the noble Lord realises, I have put down many amendments to Part 1 in an attempt to rejig what will be in scope and what will not. He is inviting the Committee to accept,

“in accordance with this Part”,

at the very outset before we have decided what is going to be in it.

[Lord Pannick]

With great respect to the noble Lord, I am inviting the Committee to accept that whatever the Bill is at the end of proceedings in this House and in Parliament as a whole, it is vital to have at the outset a statement of constitutional principle. This amendment is entirely without prejudice to all the amendments that we will be debating, considering, and perhaps voting on, many of which I support, but that is an entirely distinct question from the issue that we are now debating, which is the constitutional principle about what goes into the Bill. I was particularly grateful to the noble and learned Lord, Lord Goldsmith, for his support on this point, and I respectfully agree with what he said.

I am not going to test the opinion of the House today—I am going to take the advice of the noble Lord, Lord Newton of Braintree—but I very much hope that the Minister will be able without a vote to recognise that the opinion of the House is very strongly in favour of this amendment for all the reasons that have been expressed in Committee today. I am sure that the Minister will recognise that if there is no movement on this issue—an issue that I and many other noble Lords regard as absolutely fundamental—the House will return to this matter on Report, and it is clear, I suggest, that the Minister and the Government will face a substantial rebellion on their own Benches. For the present, I beg leave to withdraw the amendment.

Police Reform and Social Responsibility Bill

Debate between Lord Thomas of Gresford and Lord Pannick

Thursday 14th July 2011 Lords Chamber

[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.

Police Reform and Social Responsibility Bill

Debate between Lord Thomas of Gresford and Lord Pannick

Thursday 16th June 2011 Lords Chamber

[Lord Pannick]

I am grateful to the noble Lord. It is of course the experience of all those who have held the sensitive and difficult office of Director of Public Prosecutions and Attorney-General—we are fortunate to have two former Attorney-Generals here—that they have to address these sensitive and difficult questions. There is nothing unusual about this area that singles it out from the problems that are faced, if not on a daily basis then I am sure on a weekly or monthly basis, by those who hold that office. I am sure that they will be able to assist the House regarding this matter.

My point is that the noble Lord’s amendment seeks to give an advisory role to the DPP in relation to a matter that the magistrate simply has no role under existing law to determine. I suggest with respect that that is not a sensible way to proceed, nor would it be sensible to confer on the magistrate a new role, which the magistrate has never had, of having to consider the criteria in the code for Crown prosecutors of whether there is a realistic prospect of conviction or whether the public interest justifies a decision being taken.

The other amendment, Amendment 245AA, would include in the legislation criteria that told the DPP how to exercise his discretion. It would be quite unprecedented for Parliament to tell the DPP what criteria to adopt in exercising his functions, nor do the courts do so. Indeed, it was highly controversial that the Appellate Committee of this House decided in July 2009 to require the DPP even to publish guidelines on whether he would prosecute for assisting a suicide. I declare an interest as counsel for Mrs Purdy in that case. Parliament and the courts have, for good reason, preferred to leave the DPP to develop his own criteria in the code for Crown prosecutors. Amendment 246 raises very different issues—

[Lord Thomas of Gresford]

Does the noble Lord agree that it would surely be right that the DPP should apply the same standards when he is considering one of these cases that come from abroad as he would for a person within the domestic jurisdiction?

[Lord Pannick]

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

Parliamentary Voting System and Constituencies Bill

Debate between Lord Thomas of Gresford and Lord Pannick

Tuesday 8th February 2011 Lords Chamber

[Lord Pannick]

As I understand it, that is the position. The opposition amendments will leave that to the discretion of the person who is hearing the representations, which seems to me right and proper. The proposal from the Government at the moment is a sort of legal interruptus in which the person hearing the material will end the process in a profoundly unsatisfactory way—unsatisfactory to the person who made the representations—because nothing arises from that other than communication to the decision-maker who has not actually heard what has been going on.

[Lord Thomas of Gresford]

Does the noble Lord not agree that the person to whom he refers, the person who would be aggrieved, would prefer that their contribution goes directly to the decision-maker and is not filtered in an intermediate stage by the chairman, who may have all sorts of views of his own and may colour the way in which that person wants his representations to be heard?

[Lord Pannick]

I would say to the noble Lord, Lord Thomas of Gresford, that in my experience it is most unusual indeed to arrange for oral representations, and let us not forget that this is what the Government are rightly proposing, in which the person hearing them then has no role, not even an advisory one. It is my experience in all areas of the law, and I hope that it is the experience of the noble Lord as well, that if you give people a fair hearing and then a reasoned conclusion at the end of it, even if it is only advisory in nature, they are normally—not always—prepared to accept the result, however disappointing it may be. The Government’s proposals, by contrast, will inevitably raise expectations which they cannot satisfy and which will inevitably frustrate and anger people, who will inevitably feel that this is a charade. On a matter as sensitive and important as constituency boundaries, it is vital for this House to maintain some genuine process of inquiry leading to a result, even if it is only advisory. Inquiries have contributed substantially to the confidence that all sections of the public now have in the process of boundary review.

--- Later in debate ---

[Lord Thomas of Gresford]

Would the noble Lord not agree that if the Boundary Commission failed to follow the recommendation of the first decision-maker— which may be provisional—that would inevitably trigger judicial review? That is the problem when you have double decision-making.

[Lord Pannick]

I am sorry, but I simply do not accept that. The noble Lord is very familiar with the general process of planning inquiries, when advice is regularly given that is not followed by the decision-maker. The courts are sophisticated enough to understand in this sensitive area that advice is not necessarily followed. The Boundary Commission is the decision-maker. If I were to go to the court tomorrow and rely on advice that the Boundary Commission had rejected, and if that were the basis of my judicial review, the case would not last very long, as I think the noble Lord knows.

[Lord Thomas of Gresford]

My Lords—

[Lord Pannick]

I have taken a number of interventions. This is Report, and I hope that the House will agree with me that it is appropriate that we proceed with this matter.

Even at this late stage, will the Minister and the Government please think again? They can make this process more efficient, but they should not abolish the inquiry, which is what they are in effect doing, as it serves a very valuable purpose.