Justice and Security Bill [HL]

Lord Woolf Excerpts

Monday 23rd July 2012 Lords Chamber

[Lord Lester of Herne Hill]

My Lords, I am probably surplus to requirements, but I agree with each of the last four speeches and want to add a couple of obvious points. As the noble and learned Lord, Lord Goldsmith, emphasised—and I think he is the first to do so—what we are doing in Parliament now will be closely watched not only in the United States but throughout the common-law world. If the Bill goes through in its present form, I have no doubt that it will be cited as a model to be followed elsewhere, and there will be great pressure from across the Atlantic for this to happen. Therefore, we are the only safeguard to ensure that the legislation that is enacted complies with the principles of open justice, natural justice and equality of arms.

I know that the particular difficulty about intercept evidence—and I strongly support those who want to use it—is that the moment it comes to be seen by a claimant, very sensitive questions will be asked about sources and so on, and that would have to be handled with great care. However, my understanding is that in the United States intercept evidence is used, with proper safeguards. Is anything in this part of the Bill echoed in the United States in respect of intercept evidence? My understanding is that it is not, and that therefore these provisions, to which four Members of the House have objected, would not apply to equivalent United States legislation. If that is true, it is an even further argument in favour of these amendments.

[Lord Woolf]

My Lords, the submissions put before noble Lords by various Members of the House in favour of these amendments, given their source, require the very greatest attention. I make no cavil at all about the spirit in which they are put forward, but I suggest that the House needs to look at the amendments with regard to how judges operate in practice. The situations in which there are closed proceedings are very limited indeed. Here we are dealing with the use of closed material in civil proceedings, where it is even rarer for there to be the sort of closed proceedings that have been necessary in trials by jury in the criminal courts. A small minority of cases in civil proceedings are tried by a judge alone. Indeed, if there were a need for closed hearings, it would not be practical for what is envisaged here to be used in those very few cases where a jury might care because there is then a purpose in the closed proceedings. The jury could not be told of the evidence that would be the subject matter of the closed proceedings and therefore there could not be any purpose in the judge making a ruling that certain evidence should be heard in closed proceedings.

Having indicated, I hope, the context that we must look at, I find it extraordinary that it should be thought necessary for a judge, in this unusual situation when there is to be a closed hearing, to be told what he has to do to safeguard as far as possible the party which does not have access to the material. Any judge hearing these matters is going to find throughout the hearing that that is his primary responsibility. I would suggest that perhaps it is dangerous to be too specific in what he can do and what he must do because the whole of civil procedure has evolved so that a judge is put in charge of a case and he manages it in accordance with the overriding principle that is being relied on by those who wish to amend this legislation so as to achieve justice and fairness as far as possible. While I am very much in sympathy with all noble Lords who have supported these amendments, I question whether we are necessarily being constructive with regard to this issue.

What we have given as the justification for the closed procedure is that it will actually assist in achieving justice. In considering what justice is required, one must not look at the matter entirely from the point of view of one party alone. If the Government are the defendant in the proceedings, they have important responsibilities to put before the court to ensure that the rights of the citizen to be protected are not damaged inadvertently by what is proposed. We must remember that, in this very special area of national security other states are very sensitive that their material, which they regard as important for their purposes, should not come in to the public domain. It is in that situation that these procedures, as I understand them, are being proposed. As I have suggested, the judge would apply the ordinary principles with regard to weighing the material that he would apply in other proceedings, and also with regard to its admissibility. I look forward to hearing how the Advocate-General deals with the point that is now being taken with regard to the intercept evidence. That evidence is not normally admissible in proceedings, and it is not evidence that a judge can look at. I suggest that, if he were to hear it inadvertently, he would not be entitled to rely on it unless there was some reason that made it admissible.

Therefore, I hope that the Advocate-General will in due course explain why the normal rules, which I suggest must apply in so far as possible here, are not applicable also in the special circumstances of closed hearings.

[Lord Mackay of Clashfern]

My Lords, I think that this may be an opportunity for the Home Office, in particular, to reconsider the advice apparently previously to it by the holder of the office of Attorney-General. With this possibility, there may be a way of introducing more flexibility into the general role with regard to intercept evidence than seems to exist at present.

Justice and Security Bill [HL]

Lord Woolf Excerpts

Wednesday 11th July 2012 Lords Chamber

[Lord Woolf]

My Lords, I should perhaps begin by making certain disclosures. First, I have to confess that, together with the director of the Bingham Centre for the Rule of Law, I am among the editors of De Smith, which was referred to in argument as a book that deals with some subjects that are dealt with so admirably by the other book that has been referred to. Secondly, and perhaps more significantly, I should indicate not only that I was a judge who had to deal, as I did from time to time, with PII applications in both criminal and civil proceedings, but that for five years I was what was known as the Treasury Devil, one of whose tasks was normally to appear on behalf of the Government in cases where PII was being sought because of national security. I therefore have a certain degree of practical experience of the position as it arises, alive, within the court system.

The position in criminal proceedings is different from that in civil proceedings, because the issues in criminal proceedings are different from those in civil proceedings. In criminal proceedings, the state is bringing the prosecution. It has the burden of producing the evidence that is to be relied upon. One of the criticisms that have understandably concerned special advocates is that, if the defendant in criminal proceedings does not know the case that is being made against him, it is very difficult for him to give instructions that may be highly relevant and which the special advocate would wish to have in order to do what he is obliged to do: represent the defendant.

In civil proceedings, on the other hand, the probabilities are that the claims for PII or closed proceedings will arise on the grounds of national security where the state is the defendant as opposed to the equivalent of a claimant in civil proceedings, and the person who is the claimant will have full knowledge of the case that he wants to present so as to get the relief that he is seeking. There may be civil proceedings—I put it only as “may be”—in which a special advocate who represents the interests of the claimant can do that more successfully than is possible in criminal proceedings. There may not necessarily be the same inherent unfairness that is always involved in the use of special advocates in criminal proceedings.

While I still stress that the claimant may be under a real disadvantage, and the proceedings may be inherently unfair in that respect, special advocates are certainly better than nothing so far as the party who is being represented by them is concerned. I apprehend that if one were to question special advocates, they would always concede that what they could do was better than their not being there. It is a contribution that must not be ignored, although obviously if one does not need to have secret proceedings and if one is able to disclose all the evidence, the best possible way for that to be done is for it to be done in public, as it should be done in normal civil or criminal proceedings. However, as I say, a special advocate being there is better than nothing.

That brings me to the approach that we are adopting in this legislation. I would say that it has been accepted that there is a need for a procedure that enables in the very few cases that involve national security for material not to be placed before the court in circumstances in which the judge can rely on it. That can be important to the claimant and to the Government because, if the evidence and material are not placed before the court in that situation, the judge may be aware of the material but cannot rely on it in coming to his conclusions, because it is part of his responsibility to determine cases on the evidence that is placed before him in court, whether it is placed before him in the normal way or in the special way that we are considering here.

Only in a small minority of cases is it necessary to resort to the special procedures that we are debating in the course of these proceedings. Certainly on the basis of my experience, usually you can find ways of squaring the circle—ways in which the evidence can be put forward so that it is valuable to the judge without having to risk causing damage to such interests as national security. Justice is done through the advocates involved co-operating, through agreements that certain things are to be redacted, and through the trust that usually exists between the advocates appearing in the proceedings on behalf of the Crown in matters of these sorts and the advocates appearing on behalf of the other parties.

As has been said in argument and as appears in the overriding principle set out in Part 1 of the CPR, the court is seeking to achieve justice, and that should always be the criterion that has to be applied. I would urge that flexibility is very important here. PII has been developed as a common law principle, and if it is accepted on all sides, as I believe it is, that PII in the present proceedings should remain, I question whether we need to reduce into statute that which the common law has developed. Of course, if the common law has developed it, it can continue to develop according to new circumstances that we may not anticipate in the course of the argument taking place in this debate.

I would also urge that it is highly undesirable that we should put the seeking of a PII and a closed hearing into separate watertight containers. If the judge hearing the matter is going to do justice, it is important that he should have before him the knowledge that PII is still available and he can say whether the best way to deal with the matter is through PII or the alternative—through a closed hearing.

The hearing itself might have to be conducted in an unusual way, or might have to be closed, to discuss these matters. However, on this sort of issue the special advocate can be of great assistance to the judge as to the best way of going about it. The advocate on behalf of the Crown will be before the judge and the special advocate can be before the judge, and the judge will take care to ensure that the best way of achieving justice in the situation before him is the one that is adopted.

Many of the amendments here set out principles that I find wholly admirable on the procedure to be adopted on PII. They could have been contained in a text-book; they do not have to be in a statute. So long as it is absolutely clear, as I believe it always has been, that PII is still available, I suggest that that is sufficient for legislation.

[Lord Lester of Herne Hill]

I respectfully agree with everything that the noble and learned Lord has said. Does he appreciate that the reason for this variety of amendments is to achieve precisely the position that he would advocate, and that to get rid of straitjackets seems to be present in the Bill as it stands?

[Lord Woolf]

I agree that there are dangers, in the way the Bill is drafted at present, of it being thought that there is a straitjacket, but there would be an equal danger of a straitjacket if we adopted either of the alternative forms of amendment that have been proposed so far, although I am bound to say that I prefer the option of the noble Lord, Lord Thomas, and the reasons he explained, to the reason previously put forward by the noble Lord, Lord Lester, and others. If you come second in line in putting forward amendments, you can usually do things marginally better than the previous attempt, and I think that has applied here.

As the noble Lord, Lord Pannick, rightly pointed out, the Bill as it is at present is not as clear as it should be. It is very difficult to express it in a more satisfactory way than has been expressed already, but it could be done and I am sure that if the matter is reconsidered it will be possible to make the situation clear beyond peradventure. I would urge that this approach is adopted.

I should also make it clear that I think that the noble Lord, Lord Carlile, is right in saying that in most situations that are covered by the Bill the result will be preferable to both sides if the closed hearing procedure is adopted rather than PII, because PII has the very unfortunate effect that you cannot rely on the material that is in issue, whereas both the claimant and the Government may want to rely on that material. That is a good reason for having the closed-hearing procedure.

[Baroness Berridge]

My Lords, I had planned to speak to Amendments 39 and 40 but what I am about to say relates to what is now being described as the overriding objective of this group of amendments. Whichever it is, it is important that the name “public interest immunity” is retained as, even when we are dealing with national security-sensitive information, it is not government immunity, although it is often claimed by the Government as a party. When it is, it is done on behalf of and for the benefit of the public and not the Government.

--- Later in debate ---

[Lord Falconer of Thoroton]

I hope that the noble and learned Lord, Lord Wallace of Tankerness, takes the same view of this Bill. I am grateful for what the noble Lord, Lord Lester, said and one can recognise that view around the House. I am not yet persuaded of the need for it, but it could be that the noble and learned Lord will persuade me. If there is a need for it, the question is then: what is the right course? In my respectful submission, neither the Government’s proposals nor the amendment quite get there.

With the greatest respect to the noble and learned Lord, Lord Woolf, who I agree with in relation to flexibility, in the light of the decision in the Al Rawi case I do not think it is possible simply to leave the position for the common law to develop. As I understand the Al Rawi decision, it is effectively saying, “You cannot have a closed material procedure unless the parties agree; and even then we are not sure”.

[Lord Woolf]

I was saying that PII should be left flexible. I was not suggesting that you could do without legislation.

Parliamentary Voting System and Constituencies Bill

Lord Woolf Excerpts

Tuesday 8th February 2011 Lords Chamber

[Lord Falconer of Thoroton]

I have considerable sympathy with that view. If the Bill had said, “Let there be public inquiries and let the chair or the deputy chair of the Boundary Commission determine the right course and whether or not there should be a public inquiry”, I anticipate and understand that the Government would have been concerned about the delay that that might cause to the timing of the boundary review. We are prepared to enter into a scheme, whose structure is in effect proposed by the Government, that does its level best to ensure that the process will be over by 30 October 2013, in accordance with the fresh proposals now being made, so that the Government’s timescale would be met. That is why the Government have taken this approach.

In an attempt to reach a conclusion, the Government’s amendment, as amended by ours, would do what your Lordships’ House does very well—namely, improve the Bill in a way which is both a sensible solution and a product of compromise and good sense. I beg to move.

[Lord Woolf]

My Lords, the Government have moved a long way but, in my view, they have not moved far enough. Indeed, some of what they propose is not constructive in the way they intend. The Government’s proposals, if coupled with those put forward by the noble and learned Lord, Lord Falconer, would produce a much better result. This is very important for the public because the scale of the changes involved means that the public should have a proper hearing.

I am not surprised that the noble and learned Lord, Lord Lloyd of Berwick, asked what is the difference between a public hearing and a public inquiry. Normally a proper hearing involves the kind of matters to which the noble and learned Lord, Lord Falconer, referred. It is no use having a hearing if it does not serve its purpose. The great defect in the Government’s proposals is that they arrange a hearing following which the person who has to make the decision will not have an opportunity of having any more than a record of what has occurred in the hearing.

In times out of number within our legal system—whether it be in the form of a planning or any other inquiry—a hearing has resulted in an opportunity to be heard, which is then reported upon by a neutral and independent person, normally someone with skill and experience in the area in question. Here it is quite clear that, in the end, the Boundary Commission will have to make the decision and, on both proposals, its decision will be coloured by what has happened at the public hearing. However, on the Government’s case, the Boundary Commission will have only a written record. What is the purpose of having an oral hearing if there is going to be no more than that?

What should happen—I submit that this is what is intended to happen in the amendment of the noble and learned Lord, Lord Falconer—is that there should be included in the matters that go before the Boundary Commission the views of the person who is chairing the hearing. That does not mean, as was thought by the noble Lord, Lord Thomas—I say this with great respect—that there would be two decisions; there will be only one decision. The chairman will take great care to do no more than assist the Boundary Commission to reach its decision.

Those who have had the task of looking at many inspectors’ reports will know how a decision that is to be made by the Secretary of State is assisted by an inspector’s report. I anticipate that the chairman will say, “So and so was contended on behalf of X, but Y said so and so, which the Boundary Commission may think is the stronger argument”. The chairman might say, “The Boundary Commission may submit that this point or that point was not properly considered by X in giving his evidence”.

A multitude of situations could arise whereby that process could properly be dealt with by a report by the person who actually conducted the hearing. If that was allowed, you would avoid the frustration felt on the part of those appearing before the chairman that their words are apparently disappearing into the ether with no conclusion being given on them. I strongly urge the Government to think again objectively about what is proposed to avoid that situation, especially if they are concerned about delay.

The Boundary Commission can be given the task of reaching its final decision within a specific time. If, as the noble Lord, Lord Campbell of Alloway, suggested, it is given the power to control the chairman, it can ensure that there will be no undue delay, which would have the undesirable results on which the Government speculate. An important point is that there are provisions in the Government’s proposal for questions to be asked of those making oral statements to the hearing—I refer to paragraph 8 of new Schedule 2A, proposed in Amendment 39, where that is made clear. That comes very close to the procedure which would normally take place before someone such as the chairman at a public hearing, as that is normally known. Therefore, you have questioning only under the control of the chairman. Answers are given and you have—and should have—the views of the chairman on what has occurred. If that is not done, a very strange animal indeed will be produced.

[Lord Thomas of Gresford]

Is the noble and learned Lord suggesting that the chairman should have a power to comment, or is he suggesting that the chairman should recommend, which is really where the issue lies?

[Lord Woolf]

It would be a preliminary recommendation to be considered by the Boundary Commission, which would make the final recommendation. The only other alternative is that the hearing should take place before the Boundary Commission and that is obviously not a practical proposition. I am sorry that I have obviously not persuaded the noble Lord, Lord Thomas, on this.

[Lord Thomas of Gresford]

I have been at Boundary Commission hearings, although I do not recall a judicial review. Does not the noble and learned Lord’s suggestion mean that the recommendations of the chairman would be open to judicial review? Is that not one of the things that we are trying to avoid?

[Lord Woolf]

I certainly cannot say that in no circumstances could the chairman’s recommendations be the subject of judicial review, but there is a greater risk of judicial review if you do not allow the chairman to put before the Boundary Commission the information that it will need to make a decision. I cannot anticipate what a judge would say on an application for judicial review in all cases, but, in the majority of cases, I think that the possibility of judicial review at that stage would be very slim.

As the noble Lord knows well from his experience of judicial review, what is normally judicially reviewed is the final recommendation. A preliminary recommendation made by the chairman would not be the subject of judicial review, because if it was criticised, as it would have to be, as not being in accordance of the legal requirements, the answer would be, “Well, what are you worrying about? The Boundary Commission will put that right, and, if they don’t, you can come back to us then”. You do not come, at this first stage, to seek judicial review of what is no more than a preliminary recommendation. I think that that is the trite law which the noble Lord would expect the court to follow on applications for judicial review.

Let us have sensible provisions; let us give the widest possible discretion to the Boundary Commission; let us have the ability to go that one step further than the Government’s proposals so far and enable the person who chairs the hearing to make a preliminary recommendation. Of course, he may decide not to make a recommendation, but he should not be prevented from doing so. He may think that the situation is sufficient. I would therefore urge flexibility.

In that regard, could I also urge the Government to reconsider the requirement that there should be at least two public hearings? There may be situations where to have public hearings will serve no real purpose. That should be a matter of which the Boundary Commission is again in charge.

[Lord Campbell of Alloway]

I am grateful to the noble and learned Lord for his helpful clarification, but how can judicial review, which is of general application, have any specific relationship with this particular question? Acceptance of judicial review is a matter always for the discretion of the court. You have no right to it, unless the court accepts your application.

[Lord Woolf]

The noble Lord, Lord Campbell, is of course absolutely right that the matter is in the hands of the judge who hears the application, but he will forgive me if I do not from these Benches seek to give my opinion as to what a judge can do and should do other than in the most cautious of terms. I have tried to assist the House by indicating that, from my experience, it is unlikely that the fears expressed by the noble Lord, Lord Thomas, would have any basis in reality.

Crime: Rape

Lord Woolf Excerpts

Wednesday 16th June 2010 Lords Chamber

[Lord Woolf]

My Lords, I congratulate the noble and learned Lord on his new office. In the consideration which is being given to this very delicate and difficult issue of rape, will attention be given to the age at which an offender can properly be prosecuted for this offence?

[Lord Wallace of Tankerness]

I thank the noble and learned Lord for his kind remarks. I had much pleasure working with him on your Lordships’ Constitution Committee over the past 18 months. I understand his point and perhaps the implied reference to a recent case. We have indicated that the most immediate issue we are considering relates to anonymity. However, rape is never far away from the consideration of both Houses of Parliament. I have no doubt that the point about age, to which the noble and learned Lord referred, will recur in our debates.