Crime and Courts Bill [HL]

Lord Ahmad of Wimbledon Excerpts

Tuesday 4th December 2012 Lords Chamber

Moved by

[Lord Ahmad of Wimbledon]

79: After Clause 17, insert the following new Clause—
“Youth courts to have jurisdiction to grant gang-related injunctions
(1) Part 4 of the Policing and Crime Act 2009 (injunctions to prevent gang-related violence) is amended as follows.
(2) In section 49(1) (interpretation of Part 4) for the definition of “court” substitute—
““court” (except in Schedule 5A)—
(a) in the case of a respondent aged under 18, means a youth court, and(b) in any other case, means the High Court or the county court,but this is subject to any provision in rules of court that is or could be made under section 48(4);”.
(3) In section 43(7) (judge before whom person arrested on suspicion of breaching injunction under Part 4 is to be brought) for the words from “means” to the end substitute “means a judge of the court that granted the injunction, except that where—
(a) the respondent is aged 18 or over, but(b) the injunction was granted by a youth court,it means a judge of the county court.”(4) In section 48 (rules of court in relation to injunctions under Part 4) after subsection (3) insert—
“(4) In relation to a respondent attaining the age of 18 after the commencement of proceedings under this Part, rules of court may—
(a) provide for the transfer of the proceedings from a youth court to the High Court or the county court; (b) prescribe circumstances in which the proceedings may or must remain in a youth court.” (5) Schedule (Gang-related injunctions: further amendments) (which makes consequential and related amendments in the Policing and Crime Act 2009) has effect.
(6) Nothing in any provision of this section or of that Schedule affects proceedings in relation to applications made before the coming into force of that provision.”

[Lord Ahmad of Wimbledon]

My Lords, the amendments in this group will make a change to how the court system deals with gang injunction applications for those under 18 years of age. It will transfer the jurisdiction of gang injunction applications from the county court or High Court to the youth courts, sitting in their civil capacity.

As noble Lords may be aware, gang injunctions are a civil injunction introduced in the Policing and Crime Act 2009. They were subsequently extended to 14 to 17 year-olds in the Crime and Security Act 2010. Gang injunctions allow the police or local authority to apply for an injunction to prevent gang members engaging in, or to protect them from, gang-related violence. Injunctions can both prohibit and require certain activities or actions.

When gang injunctions were originally established, it was felt that the civil courts were best placed to hear the applications due to their expertise in handling civil injunctions, and this remains the case for adults. However, following discussions with practitioners, we have come to the conclusion that the youth courts are best placed to deal with gang injunctions for 14 to 17 year-olds. It is our belief that youth courts have the appropriate facilities and expertise to deal with young people and that they will thus be able to handle these cases more efficiently and effectively for all those involved.

To facilitate this jurisdictional transfer, Amendments 79 and 82 also make a change to what can be done by the rules of court governing the injunction process, as well as making a small amendment which applies to all injunctions. I beg to move.

[Lord Beecham]

My Lords, we certainly commend the Government for this very sensible amendment. It is clearly right that defendants under the age of 18 who are members of gangs should be dealt with by the juvenile court in the normal way. It is some reassurance that 18 is the limit, so that, for example, the activities of the Bullingdon Club, should they get out of hand, would not be dealt with in a juvenile court but properly in the adult court. This is an amendment that we support.

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Moved by

[Lord Ahmad of Wimbledon]

82B: Clause 18, page 17, line 15, after “offices,” insert—
“Part 4A makes provision for the exercise of certain functions where the Master of the Rolls, the President of the Queen’s Bench Division, the President of the Family Division or the Chancellor of the High Court is incapable of exercising the functions or one of those offices is vacant,”

[Lord Ahmad of Wimbledon]

My Lords, this group of amendments makes a number of technical amendments to the judicial appointment and diversity provisions. I will touch only on those amendments which make a substantial change.

In Committee, the noble and learned Lord, Lord Falconer, highlighted that the drafting of the Bill would allow for the number of judicial appointments commissioners who are appointed by virtue of holding a judicial office to be equal to the number of other commissioners. Our intention was to retain the current position whereby the judicial members are in the minority on the commission, and Amendment 87 ensures that is the case. This will guard against any perception of judicial office holders appointing in their own image; it will not affect the current position, whereby commissioners appointed other than as a judicial member—for example, legal professional members—may also hold judicial office without counting towards the number of judicial members.

Amendment 89 transfers the power to appoint persons as magistrates from the Lord Chancellor to the Lord Chief Justice, although as with the current position the appointment will be made in the name of Her Majesty The Queen. This is entirely in line with other provisions in the Bill which transfer responsibility for approving Judicial Appointments Commission selections, and in some cases making appointments from the Lord Chancellor to the Lord Chief Justice for certain judicial offices below the level of the High Court. This proposal was not included in the Bill on introduction, as consultation with magistrates’ representatives was still taking place at that time.

Amendments 86 and 94 allow the regulations setting out the appointment process for Supreme Court and other judicial offices to set aside, for limited purposes, the usual arrangements for when the office of Lord Chief Justice is vacant or the post holder is incapacitated. Section 16 of the Constitutional Reform Act provides for the senior head of division to carry out the functions of the Lord Chief Justice in these circumstances. However, in relation to the functions of the Lord Chief Justice as a member of a selection commission and selection panel, or his functions in nominating other members of such commissions or panels, it may not always be appropriate for the senior head of division to assume such functions. For example if the appointment in question is to fill a vacancy in one of the offices of head of division, it may not be appropriate for a head of division to be given a role on the selection panel. The Constitutional Reform Act currently recognises this by allowing for a Supreme Court judge to deputise for the Lord Chief Justice in these circumstances. These amendments ensure that the regulations will be able to make similar provisions in future.

Amendment 95 requires the Lord Chancellor to secure the concurrence of the Lord Chief Justice before issuing any guidance to the Judicial Appointments Commission under Section 65 of the Constitutional Reform Act 2005. This reflects the increased partnership role that the Lord Chief Justice and Lord Chancellor have in the appointment process. It is also consistent with the approach that we have taken in relation to requiring the Lord Chief Justice’s agreement to our new regulations on the appointment process.

Amendments 82B and 103A provide a new power enabling the Lord Chief Justice, with the concurrence of the Lord Chancellor, to temporarily appoint a judge of the senior courts to carry out the statutory functions of a head of division when that head of division is either incapacitated or the office is vacant. The heads of division—namely, the Master of the Rolls, the president of the Queen’s Bench Division, the president of the Family Division and the Chancellor of the High Court—have a range of statutory powers and functions, but there is no corresponding power enabling the exercise of such functions when the relevant head of division is incapacitated or the office is vacant. This has proved problematic operationally, as it has meant that important decisions cannot be taken if the incumbent is unwell or the office is vacant and a new head of division has yet to be appointed.

These amendments will ensure that we can maintain business continuity and that courts can operate effectively in such circumstances. In addition to these amendments, a number of drafting and technical amendments have also been made. Noble Lords will also be aware that the Bill provides for various detailed elements of the appointment process to be removed from primary legislation and provides for new regulation-making powers in these areas. I should use this opportunity to draw noble Lords’ attention to the three sets of draft regulations that I have recently shared with Parliament. These have been produced in order to inform our debates. However, I would like to stress that these drafts are indicative and will be subject to change, but I hope that they are helpful in providing greater information to the House about our intentions in this area. I beg to move.

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Moved by

[Lord Ahmad of Wimbledon]

106: Clause 20, page 17, line 44, at end insert—
“(1A) In section 20 of the Tribunals, Courts and Enforcement Act 2007 (transfer from the Court of Session to the Upper Tribunal)—
(a) in subsection (1)— (i) in paragraph (a), for “, 2 and 4 are met” substitute “and 2 are met, and”,(ii) omit paragraph (aa) (including the “and” following it), and(iii) in paragraph (b), for “, 3 and 4” substitute “and 3”, and(b) omit subsections (5) and (5A).(1B) In section 25A of the Judicature (Northern Ireland) Act 1978 (transfer from the High Court to the Upper Tribunal)—
(a) in subsection (2), for “, 3 and 4” substitute “and 3”,(b) omit subsection (2A),(c) in subsection (3), for “, 2 and 4” substitute “and 2”, and(d) omit subsections (7) and (8).”

[Lord Ahmad of Wimbledon]

My Lords, Amendments 106 and 107 will remove current restrictions to enable applications for judicial reviews in immigration, asylum and nationality cases, made either to the Court of Session in Scotland or the High Court of Northern Ireland, to be transferred to the Upper Tribunal.

As noble Lords may recall, the House has already considered this issue in relation to England and Wales in Committee when what is now Clause 20 was added to the Bill. I believe that it is fair to say that the Committee welcomed those provisions. Having discussed the matter further with the judiciary and the devolved Administrations in Northern Ireland and Scotland, we are now moving to replicate this provision across the United Kingdom.

The effect of these amendments would be to allow more judicial reviews on immigration, asylum and nationality matters to be heard by Upper Tribunal judges with specialist immigration knowledge and would free up judges in the Court of Session and the High Court in Northern Ireland to deal with other complex civil and criminal work.

Amendment 108 also aims to ensure consistency in the justice systems across the United Kingdom by reintroducing the second-tier appeals test for applications to the Court of Session to appeal against a decision of the Upper Tribunal. The rule of court which introduced this test in Scotland was found to be ultra vires in a decision of the Inner House and, as a result, the rule was revoked by the Lord President. The test requires that, in order for the Court of Session to grant permission to appeal, it should be satisfied that the proposed appeal raises an important point of principle or practice, or that there is some other compelling reason to hear the appeal.

My noble friend Lord Avebury has tabled two amendments seeking to limit or remove the second-tier appeal test in nationality and immigration cases. I do not wish to prejudge what my noble friend has to say and I will, of course, respond in due course, when we come to the next group. However, as Amendment 108 suggests, the Government fully support a second-tier appeals test throughout the United Kingdom.

In summary, the Government believe that where an appeal has been heard and determined by both the First-tier Tribunal and the Upper Tribunal, it seems entirely appropriate that the test to take the matter to a third judicial body should be high. Furthermore, the test is designed to manage effectively the flow of cases to the Court of Appeal and ensure that the court’s attention is focused on the most important cases.

As I have indicated, Amendments 106, 107 and 108 will ensure that there is a consistent framework across the United Kingdom and will remove the spectre of forum shopping between jurisdictions. I therefore beg to move.

[Lord Avebury]

My Lords, can my noble friend confirm that these provisions concerning Scotland will be the subject of a debate on a Sewel motion in the Scottish Parliament? Your Lordships may recall that when we debated the Bill that became the Borders, Citizen and Immigration Act 2009 in your Lordships' House, the Court of Session stated very clearly in its response to the government consultation, Immigration Appeals: Fair decisions, Faster justice, that it regarded the proposed transfer as premature. The Scottish Government had expressed similar concerns and had asked the UK Government not to proceed with the change at that time. I would be most grateful if my noble friend could respond to that point.

[Lord Ahmad of Wimbledon]

My Lords, Amendments 106 and 107 would not in themselves lead to any cases being transferred from the Court of Session or the High Court of Northern Ireland to the Upper Tribunal. It is simply an enabling power. In Scotland, an act of sederunt would need to be made by the Lord President, with the agreement of the Lord Chancellor, before any class of judicial reviews could be transferred from the Court of Session to the Upper Tribunal. The Court of Session will continue to have the discretion to transfer other applications for judicial reviews relating to reserved matters not specified in the act of sederunt by order.

I say to my noble friend that the same is true for Northern Ireland. Before the transfer of a class of judicial review cases from the Northern Ireland High Court to the Upper Tribunal, a direction would be made. As such, a legislative consent motion would not be required.

Amendment 106 agreed.

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[Lord Ahmad of Wimbledon]

My Lords, as my noble friend Lord Avebury has explained, his Amendments 108ZA and 108A also relate to the second-tier appeals test. These amendments seek to remove immigration and nationality appeals, or alternatively those relating to the Refugee Convention or the European Convention on Human Rights, from the scope of the second-tier appeals test. We debated similar proposals in Committee on 4 July.

As my noble friend Lady Northover said at that time, the Government fully appreciate the serious nature of these kinds of appeals, as do the courts. In fact, the immigration and asylum chambers in the First-tier Tribunal and Upper Tribunal were created expressly to deal with these matters and are composed of judges who are experts in this particular area. The Government remain satisfied that they provide the expert rigorous scrutiny that is required in appeals of this kind.

It is therefore the Government’s view that it is neither necessary nor desirable to make it easier for appeals to continue on to a third judicial hearing, unless there is a very good reason for doing so. The test which is applied at present is either that the proposed appeal would raise some important point of principle or practice, or that there is some other compelling reason for the relevant appellate court to hear the appeal.

Removing the test in these cases could see the Court of Appeal in receipt of a high volume of cases which would not have been granted permission under the second-tier appeals test and which may further slow down decisions on some of the most important cases heard there. The test allows judges to determine which cases have a compelling reason to reach the Court of Appeal, a situation which the Government are keen to see continue.

My noble friend also raised the issue that the Court of Appeal in PR (Sri Lanka) ruled that the second-tier appeals test did not allow permission to appeal for individuals facing torture or death on their return to their country of origin. The judgment in this particular case upheld the current system and the suitability of the Upper Tribunal to make decisions on matters of this nature. The judgment specifically states that:

“The two tiers of the Tribunal system are, and are plainly to be regarded as, competent to determine matters of this kind”.

It then goes on to say:

“In short, there is no case for contending that the nature of an asylum-seeker’s case which has failed twice in the Tribunal system is a compelling reason for giving permission for a further appeal”.

These cases have already been heard in the most appropriate part of the system and the second-tier appeals test allows sufficient discretion for judges to grant permission to appeal where they see that there is a compelling reason to do so.

My noble friend Lord Avebury is someone who I personally regard as a great champion of human rights and he is someone who has stood firm in ensuring that, where there is torture across the world, people who come to this country are fully protected. I totally align myself with the sentiments that he has expressed. However, the position of the Government is clear. Finally, I would add that the courts have been clear that there is no reason to believe that the United Kingdom would be in breach of any international obligation if appeals from the Upper Tribunal are available only under the second-tier appeals test.

I would therefore urge my noble friend to withdraw his amendment.

[Lord Avebury]

My Lords, I am most reluctant to withdraw the amendment, but I can see that at this point in the Bill it would be purposeless to press the matter to a Division. I can say only that I am really disappointed in the reply that I have had from my noble friend. I am sure that I am not going to be the only one to feel that emotion. I know that the Immigration Law Practitioners’ Association has submitted a detailed argument on this matter to the Government as well to your Lordships who are likely to take part in this debate. I do not feel that adequate justice has been done to the force of its arguments. But, as I say, I do not see any reason why I should press this to a Division this evening. I therefore beg leave to withdraw the amendment.

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[Baroness Deech]

My Lords, I rise to speak to Amendments 108AA and 122AA.

In brief, these amendments seeks to transfer the jurisdiction for appeals by barristers—or in some cases the Bar Standards Board—against certain disciplinary matters from the visitors to the Inns of Court to the High Court. The transfer of the visitors’ jurisdiction is something that the senior judiciary and the Bar Standards Board have been working towards for a number of years. We welcome an opportunity to get this into the law. I trust that the Government will accept these amendments.

The background is that judges have long exercised an appellate jurisdiction in relation to the regulation of barristers. Since 1873, judges of the High Court have been exercising this function as part of their so-called extraordinary functions in their capacity as visitors to the Inns of Court. In exercising this jurisdiction, the law being applied is derived from the constitution of the General Council of the Bar and the Inns of Court to which all barristers subscribe.

For some time, the Bar Standards Board has been in discussions with the judiciary about transferring the jurisdiction formally to the High Court. The current system is anachronistic and there is general agreement that it should be updated. As these appeals are already heard by High Court judges, the main impact of the change would be to enable these cases to be dealt with in the usual manner via the normal list in the Administrative Court. This is consistent with the disciplinary arrangements for solicitors and would save time and administrative burden for the courts service.

The clause was previously included in the draft Civil Law Reform Bill in the previous Parliament, but it was unable to be proceeded with for lack of time. This is why I hope the Government will now accept it. I beg to move.

[Lord Ahmad of Wimbledon]

My Lords, as the noble Baroness, Lady Deech, has explained this new clause abolishes the jurisdiction for High Court judges to sit as visitors to the Inns of Court and confers on the Bar Council and the Inns of Court the power to confer rights of appeal to the High Court in relation to the matters that were covered by the visitors’ jurisdiction.

The Government agree with the noble Baroness that the practice of High Court judges sitting as visitors to the Inns of Court is inappropriate. The new clause does not itself abolish appeals to visitors or automatically create a right of appeal to the High Court; it is for the Bar Council, the Inns of Court and their regulatory bodies to determine any new arrangements in this respect. However, once the clause is commenced, the practice of High Court judges sitting as visitors in exercise of their extraordinary functions as judges would cease. This is achieved by repealing Section 44 of the Senior Courts Act 1981 in so far as it confers jurisdiction on High Court judges to sit as visitors to the Inns of Court and enabling instead a right of appeal to be conferred to the High Court for barristers and those wishing to become barristers.

The role of judges as visitors is long-standing but somewhat opaque. Repealing the current jurisdiction and conferring express powers to create rights of appeal in respect of the relevant decisions is preferable because it promotes clarity and certainty, which are rightly the aims of modern law.

As the noble Baroness, Lady Deech, has proposed, the power to confer rights of appeal to the High Court would be available in relation to all matters in respect of which the visitors currently have jurisdiction. Under the current regulatory arrangements of the Bar Council, the visitors’ jurisdiction includes disciplinary decisions of the Council of the Inns of Court and decisions taken by the Bar Council’s Qualifications Committee. It would also include disputes between Inns and their members, or those wishing to become members, in recognition that historically the visitors’ jurisdiction extended to appeals from all decisions relating to the conduct of an Inn’s affairs. Abolishing the role of judges sitting as visitors is supported by the Lord Chief Justice, the Bar Standards Board, the General Council of the Bar and the Inns of Court. Enabling appeal to the High Court instead will improve administrative efficiency and transparency, and at the same time make the appeal arrangements for barristers more consistent with those for solicitors. I am therefore grateful to the noble Baroness for bringing this matter before the House and the Government are happy to support the amendment.

Amendment 108AA agreed.