Justice and Security Bill [HL]

Debate between Lord Woolf and Lord Thomas of Gresford

Tuesday 26th March 2013 Lords Chamber

[Lord Thomas of Gresford]

I have certainly been up the front stairs to see many a judge in chambers. The noble and learned Baroness must know that we see the judge in private on many occasions, particularly when public interest immunity claims are being used.

The second principle of open justice is that the acts of public servants must be open to scrutiny and accountability by the public and by Parliament. It is for the judge to determine whether, as a last resort, open justice must give way to national security in the circumstances of the particular case. Everybody who has spoken here this evening has said that judges are perfectly capable of making that judgment, of carrying out that balancing exercise. However, that does not mean that secrets will be disclosed. We are talking about civil cases, about means whereby secret information will be withheld, and many mechanisms for achieving that have been referred to.

I draw your Lordships’ attention to a civil case last December which challenged the Defence Secretary’s practice of handing over detainees who had been captured in Afghanistan to the Afghan security forces. There was evidence to suggest that torture would be inflicted upon those people by those forces. The case came to court and the Defence Secretary claimed public interest immunity for a number of documents. Lord Justice Moses held that there was no objection in principle to the disclosure of material that was the subject of that claim into a lawyer-only confidentiality ring. That procedure is well known in the commercial courts of this country, and I believe that it is used in the United States of America. Is it not interesting that, while we are changing our law, we have not heard any suggestion from the United States, which is faced by the problems with which we are grappling, that it proposes to change its law or constitution in any way at all?

As I have said, these principles are core principles of liberalism and democracy, and I hope that your Lordships will support these amendments in the light of these principles.

[Lord Woolf]

My Lords, I propose to say only very little because to some extent I anticipated what I might say, both in the previous debates on this matter and in the letter that has been referred to. However, when you hear Members of this House, with the experience that they undoubtedly possess, expressing concerns on this subject in relation to this Bill, I say that we have to give those concerns the utmost care and consideration, because their importance is very great indeed. We must be very careful that we do not fall into the trap of changing our traditions when that change will cause more harm than good.

Despite the arguments that have been advanced to the contrary, I remain firmly convinced that the Bill that we are now considering is radically better than the one that we were considering before, and the Government must be entitled to credit for that. As I understand it, what we really are considering, despite the oratory that we have heard, is very much a matter of degree. The only question to consider now is whether two further precautions should be inserted into the Bill in respect of what the Government have already done, which is to be welcomed on all sides.

Of course I accept the importance of open justice. You do not need to have that set out in a Bill for judges or ex-judges to say it. We have heard clear evidence of that in a recent decision of our Supreme Court, where the president of the Supreme Court was dealing with a procedure that is akin to the procedure now being proposed. The president of the Supreme Court, the noble and learned Lord, Lord Neuberger, made the clarion call—and I am delighted that he made the statement—that all should recognise that we are dealing with a situation that involves an intrusion into the principle of open justice. If there was any doubt about the ability of judges to protect that principle, I suggest that the noble and learned Lord, Lord Neuberger, made it clear that judges will protect it. After all, a judge makes a judgment, but his judgment is then subject to appeal. I urge the House to conclude that what we want is a situation where the judiciary, which has the fundamental responsibility of doing justice, has a discretion that is wide enough to do justice in the particular case that comes before it. I suggest that this Bill, without the proposed amendments, has to be judged on whether it enables the judge to do that.

The noble Baroness, Lady Berridge, suggested that this Bill might enable judges to do things that would reflect adversely on them. I accept that that is the inevitable consequence of judges exercising their responsibility to protect national security. If giving a judgment that is right and in the interests of effective and fair justice will reflect adversely on a judge, he or she must do their duty, give that judgment and not be concerned by the reputational consequence for them of giving that judgment. It is my belief that that is just what our judges do. They would put that out of their minds. Those are political considerations, which they should not be concerned with.

What is being done here is something that the Government say will contribute to justice, not the other way round. It is being done because, as must be recognised, it is the only real alternative that the judges do not already have. With great respect to the noble and learned Lord, Lord Goldsmith, I found his submissions difficult to follow, because redaction does not need this Bill; it is something that judges use regularly. The judge’s ability to take sensible precautions to protect national security is used with a degree of frequency, but this Bill does not affect those cases. It affects only those cases when the judge is satisfied that better justice will be done because of the Bill than would be done without the Bill. The amendments are to be criticised for the reasons identified by the Minister in opening the debate. It is right that you cannot have the judge using what is proposed here as a last resort, because that would undermine the Bill’s purpose.

Does the Bill give the judge the discretion that he or she needs? I remind noble Lords of the terms of Clause 6(2), which says:

“The court must keep the declaration under review, and may at any time revoke it if it considers that the declaration is no longer in the interests of the fair and effective administration of justice in the proceedings”.

Those are very wide terms, which give the judge what he needs. Clause 6(3) provides:

“The court must undertake a formal review of the declaration once the pre-trial disclosure exercise in the proceedings has been completed, and must revoke it if it considers that the declaration is no longer in the interests of the fair and effective administration of justice in the proceedings”.

Those provisions put the judge in the driving seat, which is exactly where the judge should be as a result of this Bill.

Although we have to examine the arguments to the contrary with great care and appreciate just how important are the principles at stake, we should come to the conclusion that this is a Bill of which we can now approve.

Legal Aid, Sentencing and Punishment of Offenders Bill

Debate between Lord Woolf and Lord Thomas of Gresford

Monday 23rd April 2012 Lords Chamber

[Lord Thomas of Gresford]

I regret that I have to disagree with the noble and learned Lord, Lord Woolf—I very rarely do. However, there is a statement of principle in Clause 1: it is that the Lord Chancellor must secure that legal aid is made available in accordance with this part. That is a very simple, short statement which would cause no judge any difficulty whatever in interpreting the provisions of the Bill. I said in Committee that the amendment then proposed was meaningless and added nothing to the Bill. I say precisely the same of the amendment as redrafted.

The amendment adds nothing, except this. I could be a very devious lawyer, and I might have a case for which I thought some funding was needed. So I might apply to the director of legal aid for special funding, knowing well that the case for which I am requesting funding is outside the legal aid scheme. The director of legal aid might say, “There is nothing special about this; I am refusing it”. I might then make an application by way of judicial review to the court, and I would get legal aid for that: judicial review carries legal aid. So I would get my money by making an application to the court for judicial review to say, “Look at this provision which the noble Lord, Lord Pannick, argues for: it is broad; it is wide; the circumstances of the country have improved; it is only reasonable that the director of legal aid should now grant me the funding that I need, or that the category of law with which I am now concerned should be brought within scope”. That is just one case. Other cases could then be brought forward in the same way.

[Lord Woolf]

Will the noble Lord explain how the risk to which he has just referred would be any greater than that which already exists in the words of Clause 1(1)—that the Lord Chancellor must secure that legal aid is made available in accordance with this part?

[Lord Thomas of Gresford]

It says in terms that it must be in accordance with this part. As the Minister has explained, the Bill as drafted says what is in scope. The Access to Justice Act 1999 set out what was not in scope.

Legal Aid, Sentencing and Punishment of Offenders Bill

Debate between Lord Woolf and Lord Thomas of Gresford

Tuesday 7th February 2012 Lords Chamber

[Lord Woolf]

I apologise—I should have given the Deputy Chairman that opportunity. Perhaps I may continue with what I was saying about the possible misinterpretation of the amendment. If I understood the noble Baroness correctly, she said that one of the shortcomings of the present draft is that it does not take into account the situation of the victim, who must of course consent before he can take part. The whole core of the first subsection of the amendment is to give the victim the opportunity—I emphasise that word—to participate. It is absolutely of the essence of the amendment that the victim must consent.

I have not taken part in many of the debates, but I have the strong impression as I have listened to parts of debates—and a significant part of this one this afternoon and evening—that there is a danger that we are putting off everything until another time. We will find ourselves in exactly the same situation. If noble Lords wish to spend the time that the legislation deserves by examining it in detail, it is like a dash of cold water for amendment after amendment to be turned down when, for example, as far as drafting goes, the matters outstanding are well capable of amendment in a few minutes by a meeting with the Bill team.

There is a serious point at stake which goes to the heart of the legislative process. We have too much legislation but when legislation is introduced we must examine it with care. We must not lose the opportunity, by delaying tactics, of making amendments that can properly be made. I beg to move.

[Lord Thomas of Gresford]

I support the noble and learned Lord. I was surprised to hear the Minister say that it is very important that the victim should consent. Amendment 177DAA states that,

“the court may remand the case in order that the victim shall be offered the opportunity to participate”.

It does not say in any sense that this will be imposed on the defendant.

[Baroness Northover]

I refer noble Lords back to the concluding remarks that I made. I fully understand that amendments may not be phrased quite as we might wish but I hope that I addressed the principles. We are very supportive of restorative justice. I gave reasons why we feel that we want to take this further forward and see it in practice before building it into statute. My noble friend Lord Carlile anticipated that I might say something like that, and I expect that the opposition Front Bench thought likewise. We can continue to discuss this. We accept the principles and wish to take it further forward. Whether that means that it will go into statute is another matter. I hope that on that basis the noble and learned Lord will withdraw his amendment.

Legal Aid, Sentencing and Punishment of Offenders Bill

Debate between Lord Woolf and Lord Thomas of Gresford

Tuesday 10th January 2012 Lords Chamber

[Lord Thomas of Gresford]

My Lords, I wish to speak to Amendment 96 in my name. We take the view that the appeal to the First-tier Tribunal against a refusal of legal aid is a little excessive. However, we take the point that was made by the noble Lord, Lord Bach, a moment ago that the European convention requires that there should be an appeal process. We note that in Clause 11, headed “Determinations”, there is a provision in subsection (5) that regulations,

“must make provision establishing procedures for the review of determinations … and of the withdrawal of such determinations”.

That is fine, but we do not think that the review should be carried out by someone else within that executive agency about which I was talking a moment ago. We believe that an appeal should be made to an independent panel.

Your Lordships will recall that on Second Reading or on the first day of Committee I was involved in a clash over who had the longest involvement in legal aid. I recall that legal aid applications and appeals were very well dealt with by an independent panel of local solicitors within the area. It was all devolved. You did not have to come to London or attend a First-tier Tribunal in whatever building that tribunal sat. The matter was dealt with locally by people who understood the locality and probably knew the solicitor who was appearing before them to make an appeal, and had some idea how far they could trust that individual and how experienced he was.

[Lord Woolf]

As someone who was a member of such a committee, I should say that it also included members of the Bar. In view of what is happening to legal aid, members of the Bar may well be interested in performing this function.

[Lord Thomas of Gresford]

These events occurred long ago when I was in my solicitor phase. I was called “Mr” in those days. It was only when I became a barrister that I became “Esquire”, and later I became “learned”. These are the progressions one makes within the profession. Looking back to my early days, I think that the noble and learned Lord, Lord Woolf, is quite right: barristers were members of the panel that considered these applications. It was a perfectly satisfactory method of appeal, which was independent of the Government who were providing the funds. I envisage an independent panel to review the director’s decision, not an in-house person but people who could be referred to more cheaply than the First-tier Tribunal to which the noble Lord, Lord Bach, referred. I commend that process as opposed to the one put forward by Her Majesty’s Opposition.

Parliamentary Voting System and Constituencies Bill

Debate between Lord Woolf and Lord Thomas of Gresford

Tuesday 8th February 2011 Lords Chamber

[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.