Crime and Courts Bill [HL]

Debate between Lord Woolf and Lord Lester of Herne Hill

Tuesday 18th December 2012 Lords Chamber

[Lord Lester of Herne Hill]

My Lords, I strongly supported, as did my party, the separation of the traditional branch from the legislative branch. At the time, I disagreed with the noble and learned Lord, Lord Lloyd of Berwick, as my party does today, about the need for it. We thought—and think—that perceptions mattered very much, and it was a great embarrassment when we travelled around the world to discover that the rest of the world could not understand how judges could take part in or vote in our debates and that the Lord Chancellor could sit in politically sensitive cases. Therefore, we strongly supported the reform process, as I do and as my noble friend Lord Goodhart does.

I disagree with my noble friend Lord Goodhart for the reason given many years ago by the noble and learned Lord, Lord Browne-Wilkinson, when he gave a notable lecture about the independence of the judiciary and warned about the way in which questions of resources and management from the Treasury could encroach on judicial independence. It was a very enlightened and courageous lecture. I agree with the noble and learned Lord, Lord Phillips, and the noble Lord, Lord Pannick, about the function of the chief executive, especially when the Lord Chancellor is not an old-fashioned, legally qualified Lord Chancellor, who, from his experience, would instinctively understand the need for judicial independence. In my view, it is all the more important that the chief executive should be accountable to the president of the Supreme Court of the United Kingdom and not to a non-legally qualified Minister. For that reason, and because we do not have a written constitution that spells out the separation of powers but only an Act of Parliament, I believe it is particularly important that the law should be clear on this in our legislation. Therefore, I support the amendment.

[Lord Woolf]

My Lords, I add my voice to those who support this amendment. I do so with diffidence, because it may appear to the House that perhaps everything that could be said on the subject has already been said; but I hope that I will be forgiven for two reasons. The first is that, as was stated a few moments ago by the noble and learned Lord, Lord Goldsmith, it was my responsibility, as Lord Chief Justice at the relevant time, to be the spokesman for the judiciary. I had very many conversations with the person who became Lord Chancellor after the noble and learned Lord, Lord Irvine, when we strove to find the right answer to various activities which took place within the court system and which would take place in the relationship between the courts and government after the changes that the Constitutional Reform Act was going to bring about. I am afraid that I must have nodded on this point because I did not realise its significance at the time; I certainly do so now.

Secondly, in relation to the intervention of the noble Lord, Lord Goodhart, I suspect that he is influenced—as I would have been influenced, perhaps, not to attach the importance that I should have done to this point—by the fact that there was a great tradition within the Lord Chancellor’s Department, as in the judiciary, that the civil servants who supported the court system could do so without undermining the independence of the judiciary. Throughout my judicial career, I worked very closely with senior civil servants and civil servants at all levels, and there was never a problem. The Permanent Secretary at the department fully understood what the independence of the judiciary required. The unfortunate fact is that in those days there was a tradition in the Ministry of Justice of civil servants and, indeed, Ministers spending substantial time in the Ministry of Justice—or, as it was then called, the Lord Chancellor’s Department—and if they did not know at the outset the complexities of that very special relationship within a very short time of being there, they came to understand it because the whole ethos of the Lord Chancellor’s Department was that they must focus at all times on protecting the independence of the judiciary. I believe that, so far as the courts are concerned, that continues to be the position.

Justice and Security Bill [HL]

Debate between Lord Woolf and Lord Lester of Herne Hill

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.

Justice and Security Bill [HL]

Debate between Lord Woolf and Lord Lester of Herne Hill

Wednesday 11th July 2012 Lords Chamber

[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.

Public Bodies Bill [HL]

Debate between Lord Woolf and Lord Lester of Herne Hill

Tuesday 11th January 2011 Lords Chamber

[Lord Woolf]

My Lords, it is a while since I first addressed the House with regard to this Bill. I start my present remarks by saying that I acknowledge that the Government have made a significant improvement to the Bill in the action that they have taken. I congratulate the Minister and his team on the attention that they have given, particularly to the bodies associated with the courts that had been in Schedule 7. I feel much more comfortable with the Bill in consequence of the changes that have been made. However, I have to say that this Bill, which is sometimes referred to as achieving a bonfire of quangos, would in my view be further improved if there was to be a bonfire of Schedule 7. I hope that the further consideration of the Bill, which I believe is still continuing, will bring about that result.

I listened with great care to what the noble Lord, Lord Hunt, said about the provisions that are the subject of his amendments. I do not think that I can usefully add anything to that, apart from saying that when the boards were introduced—I was Lord Chief Justice at the time—arrangements were made for a senior judge, one no less distinguished than the present Lord Chief Justice, to serve on that board to express the views of the judiciary. However, I think that things have moved on since then, so the topic is much more debatable than it would have been some time ago. The arrangements for consultation between the judiciary and the departments with which they are particularly concerned are in general working smoothly, so the boards are no longer as important as they were in the early days of the unified criminal justice system.

On the inspectorate, I would urge that the speech that we have just heard from the noble Lord, Lord Ramsbotham, who probably knows more about inspectorates than anybody else in the country, should be listened to with care. The inspectorate for the courts system was not, if my recollection is correct, a proposal about which the judiciary jumped with joy when it was first suggested. It was thought—I would say with good reason—that there could be insuperable problems over the independence of the courts system if an outside inspectorate was to look in at what the courts were doing. All that I can say is that, in practice, the inspectorate has worked remarkably well, as have all the inspectorates, of each of which I am a fan. The inspectorates make a significant contribution to the proper functioning of the administration in the areas in which they operate. I do not think that it was intended to be suggested—and if it was, I would not agree with the suggestion—that the inspectorate should act as a sort of court of appeal. If the inspectorate keeps to administration, it can perform a useful function. That function will still have to be performed even if the inspectorate does not exist and, if the inspectorate is abolished, proper arrangements will need to be made to ensure that that happens.

[Lord Lester of Herne Hill]

My Lords, I apologise to the noble Lord, Lord Hunt, that I was not able to be here to hear his speech. I was upstairs in the Joint Committee on Human Rights, which has authorised me to ask the Minister whether, as we were given to understand, we will receive the human rights memorandum from the Cabinet Office so that our committee can do its job properly. That memorandum has still not been received and we want to finalise our report by next Tuesday. I hope that the Minister can tell us in his reply that what was promised many weeks ago will happen.

My second point in general support of the amendments is that, although it is admirable that some bodies of a judicial nature may be removed from the schedules by other amendments, if Amendment 175 in my name and in the name of the noble Lord, Lord Pannick—a paving amendment for which was approved by the House on the first day in Committee—is accepted by the Government and not sought to be reversed in the other place, the provisions in Amendment 175 will be relevant to our discussions today and hereafter. It is unsatisfactory that we are having this debate without knowing whether Amendment 175 will stand. Importantly, Amendment 175 would apply not only to courts but to any body—whether a court or not—that performs a judicial function and it would deal with the issue of independence raised by the noble Lord, Lord Ramsbotham.

In a sense, we are putting the cart before the horse because a failure to insert into the Bill the criteria against which all these decisions can be measured means that we are having to proceed piecemeal, body by body, at enormous and appalling length in the Committee process. I respectfully urge the Government to accept these amendments for all the reasons that have been given so far but to deal with the system of the Bill as a whole by indicating at an early stage that Amendment 175 or a similar provision will bind Ministers when they exercise their delegated powers. That is the price that Ministers must pay if they are not to proceed by way of primary legislation. There need to be constitutional limits on the powers exercised by Ministers, as Committees of this House have indicated in the past.

Public Bodies Bill [HL]

Debate between Lord Woolf and Lord Lester of Herne Hill

Tuesday 23rd November 2010 Lords Chamber

[Lord Lester of Herne Hill]

My Lords, may I respectfully ask the noble and learned Lord a question? By implication, I think he is suggesting that I am slightly too moderate, which may be the case. But if one takes as an example the Judicial Appointments Commission and assumes that some minor but necessary changes need to be made to its structure or administration, one has the ironclad and objective safeguards of independence as well as the other safeguard written in of objective standards. One has also the safeguards of public consultation and the need for the Minister to come before each House to justify the order on the facts, with reasons given. Is the position of the noble and learned Lord that, even with all those safeguards, nothing can be done in relation to that body except by primary legislation? If that is his position, with great respect, it seems disproportionate.

[Lord Woolf]

My Lords, as always the noble Lord, Lord Lester, has made a good point. But the fact of the matter is this: is the procedure set out in this Bill the appropriate way of dealing with the minor amendments to which he has referred? He has taken as an example the body which, ironically, was designed to achieve the independence of the judiciary from the Executive by ensuring that the way in which judges are appointed is separated from the Executive. What the Bill will do is say that if we want to amend or abolish that body, we will go through a two-stage process. First, we will move it to another schedule, and possibly discuss that in this House. We will then go through another process to achieve the desired amendment. If it is wrong in principle, as I submit it is, to treat a body of this sort by placing it in Schedule 7, then the fact that one day some minor amendment might need to be made to that body does not justify the treatment being proposed. The Judicial Appointments Commission justifies proper consideration because even minor amendments can affect such a body in ways that caused this House to look so carefully, in the Constitutional Reform Act 2005, at how in the future we would appoint our judges.