Judicial Review and Courts Bill

Debate between Lord Falconer of Thoroton and Lord Pannick

Committee stage
Thursday 24th February 2022 Lords Chamber

[Lord Pannick (CB)]

The Minister draws my attention to subsection (6), which allows a person to choose to do so by non-electronic means, but that is not easy to reconcile with the provision I have just referred to in Clause 19(1)(b). If the Minister can assure me that the person who is the litigant—either the claimant or the defendant—can always choose in all cases to have an oral hearing in the court, then I would be very pleased indeed to hear that.

When we debated provisions in very similar form in 2019 in Committee and, I think, on Report, the noble and learned Lord, Lord Keen, assured the House that the Government’s intention was to introduce online procedures only for civil money claims up to the value of £25,000. I ask the Minister whether that remains the intention of the Ministry of Justice. Does it have any plans to introduce these online procedures, including those covered by his Amendment 38, for any other civil proceedings?

[Lord Falconer of Thoroton (Lab)]

In relation to that point, it is absolutely plain that the wording of Section 19 applies to any sort of civil proceedings, including family proceedings. So it is plainly envisaged that this goes beyond simply money claims. Can the Minister describe the sorts of family proceedings that will be dealt with by the Online Procedure Rules and online processes? In particular, is it envisaged that this is to be restricted to the actual process, for example of getting a divorce or judicial separation, as opposed to proceedings that relate to the division of assets upon judicial separation or divorce, proceedings in relation to wilful neglect to maintain and any proceedings—in both private and public law—relating to children?

Secondly, and separately, I want to make a much more minor point. I understand that one of the things the Master of the Rolls has in mind in relation to Amendment 38 is that dispute resolution services must be used before, or as part of, the online process. The services envisaged by the amendment will themselves be online, so purveyors of online dispute resolution services will become quite significant players in the civil justice system, and perhaps in the family justice system as well. The rules may include a provision that the goodness or quality of those services can be

“certified by a particular person as complying with particular standards.”

To be helpful, in a way, the amendment says that

“‘particular person’ and ‘particular standards’ include, respectively, a person of a particular description and standards of a particular description.”

Can the Minister indicate who will determine whether the online dispute resolution services, which may become something that you as a litigant must engage with, meet an adequate standard? Will it be a judge, an official or some independent body? I would be interested to know what the Government’s intentions are in relation to that.

Judicial Review and Courts Bill

Debate between Lord Falconer of Thoroton and Lord Pannick

Committee stage
Monday 21st February 2022 Lords Chamber

[Lord Falconer of Thoroton (Lab)]

There is a fundamental misunderstanding there. Of course, Parliament can reverse a judicial review on its substance. If the courts conclude that some social security regulations do not meet a particular provision, they can change those regulations and come to the same result they wanted to all along, which is fine. I am talking about the fundamental role of the court in relation to determining whether the Government are acting lawfully. In relation to that, namely the ambit in which the court will operate Anisminic onwards, as it were, do not interfere with it. Let the courts determine that. Ultimately, the limits of that have to be set by the courts and not Parliament.

[Lord Pannick (CB)]

The noble and learned Lord has raised a number of very valid points in opposition to Clause 2. I offer another, in response to the noble Lord, Lord Faulks, who emphasises that there must be finality in litigation. The problem with that argument is that Clause 2 itself recognises the need for exceptions. New Section 11A(4) specifies exceptions, in particular for a

“fundamental breach of the principles of natural justice.”

In my Amendment 19, I suggest we need a further exception for where the Upper Tribunal has made a fundamental error of law. The noble and learned Lord, Lord Falconer, gave a number of examples where there may be important areas of law that raise fundamental issues that go to the safety of the individual who is going to be removed to a place where they may face persecution or torture. I for my part do not understand why a fundamentally unfair procedure is a greater mischief in this context than a fundamental error of law by the tribunal system. In each case, the Upper Tribunal and the Court of Appeal will have declined to intervene. If the judicial review route is nevertheless to remain open, as Clause 2 recognises, for fundamental procedural defects, surely it should remain open for fundamental substantive defects.

I accept of course, as again the noble Lord, Lord Faulks, emphasised, that there will be claimants with no legitimate point who seek to argue that they fall within the exception, but that is equally true of an exception for fundamental procedural defects. In any event, the answer to that concern is to ensure that any application for judicial review, whether of substance or procedure, is looked at and addressed by the judge on the papers and within a very brief time period.

Police, Crime, Sentencing and Courts Bill

Debate between Lord Falconer of Thoroton and Lord Pannick

Lords Hansard - part one & Committee stage
Monday 22nd November 2021 Lords Chamber

[Lord Falconer of Thoroton (Lab)]

The reason I did not tell noble Lords why I strongly supported all these amendments was because I made a mistake and did not realise that they were in the same group until the noble Lord, Lord Thomas, mentioned it. I apologise to the Committee for that error.

May I just go through them? I have done Amendment 268, which concerns Section 28 of the Youth Justice and Criminal Evidence Act. The next is Amendment 286, which proposes to insert a new clause into the Youth Justice and Criminal Evidence Act 1999 and would exclude the admission in evidence, whether by the prosecution or the defence, of any sexual behaviour of the complainant with a third party, for the purpose of showing consent or lack of consent, while leaving evidence of sexual behaviour with a third party admissible if it is relevant to any other issue in the case.

In addition, it sets out a further requirement that, where such evidence is sought to be introduced in relation to an issue other than consent, that material must be more probative than prejudicial, and it sets out the considerations the judge must have regard to in considering that extra requirement. The purpose of this amendment is to give the clearest possible signal that evidence of any sexual behaviour of the complainant with a third party—that is, not the defendant—should be regarded as completely inadmissible on the issue of consent. This is important because it is intended to mark a change from the past, where all too often such evidence is admissible in circumstances where it is of very limited probative value, and the ability of that evidence to be admitted makes people—complainants—incredibly wary of coming forward and making complaints. This is the legislature giving a clear signal that it wants a change in relation to that. That is why it is there.

[Lord Pannick (CB)]

I am sorry to interrupt the noble and learned Lord, but would his amendment mean that if the complainant says, “I would never, ever consent to sexual behaviour” of a particular description, it would not be open to the defence to adduce evidence that that was precisely what the complainant had done with a third party?

[Lord Falconer of Thoroton (Lab)]

It would exclude such evidence; there is no doubt about that, and rightly so, because what the noble Lord is referring to is evidence where the defence says, “Well, you say this in relation to this case, but what about this?” and then refers to another instance of sexual connection and says, “Look what you did there.” The purpose of the provision is to do exactly what the noble Lord, Lord Pannick, says.

[Lord Pannick (CB)]

I would like to test this proposition, because it strikes me as rather surprising. If a complainant says to the court, “Not in relation to this particular person, but I would never ever contemplate” doing something, and there is evidence, otherwise admissible, that she has done so in the past, that seems to be highly relevant to the jury’s assessment.

[Lord Falconer of Thoroton (Lab)]

What I am saying in putting forward this provision is that you want to send a clear signal that a certain sort of evidence is not admissible. In order to make it easier for people to come forward, you need to have much clearer lines than we have had previously. There has been a whole variety of evidence that English law has said is not admissible, even though many people would think it was probative, because it is the safest way overall to deal with trials—it is the safest way to ensure that an appropriate balance is struck between complainant and defendant.

--- Later in debate ---

[Lord Pannick (CB)]

My Lords, I intervened earlier on Amendment 286 because of my concern about an absolute rule in this area. My concern is increased by the practical experience of the noble and learned Lord, Lord Judge, in this matter. I am also concerned about Amendment 289 regarding the complainant’s right of representation in relation to an application and whether there should be evidence concerning sexual conduct, not merely for the reason the noble and learned Lord gave, with which I agree: that the prosecution are ministers of justice and are there to deal with such matters. I am also concerned that this is a recipe for delay. If it is really to be said that the victim is to be separately represented and able to make an application, presumably after notice has been given, and there is to be a right of appeal to the Court of Appeal, that is inevitably going to delay further trials that are already far too long delayed.

[Lord Falconer of Thoroton (Lab)]

On the points made by the noble and learned Lord, Lord Judge, about the criminal procedure rules, I agree with him. There is no need for the Secretary of State to intervene, and I accept that completely. Secondly, I also completely accept his point that the Secretary of State should not be making that determination; that is my drafting error.

I utterly repudiate the point made by the noble Lord, Lord Pannick, about delay and non-representation, a position which the noble and learned Lord, Lord Judge, also adopted to some extent. It is really important that the complainant have, and feel that they have, a voice in the process of what is going to happen to them at the trial. The point about delay could be dealt with by ensuring that these applications are all dealt with before the trial. If there is to be an appeal and the complainant says, “It is unfair that my past is being raked over in this way, I want to appeal”, then there may be occasional cases where there are delays, but their rights should be recognised. The fact that they have a voice is really important.

The noble and learned Lord, Lord Judge, said that the prosecution is there to look after them. My experience is that the prosecution will try as much as possible to look after them but that they should have a separate voice. They will frequently feel—not because the prosecution is in any sense not doing his or her duty, but because they feel their voice is not adequately represented—that they should have a separate voice because they have separate concerns from those of the prosecution, which has to look at the situation not just from the point of view of the complainant but in a wider context. So I accept two out of the three points made by the noble and learned Lord, Lord Judge, but none of those made by the noble Lord, Lord Pannick.

On the first point made by the noble and learned Lord, Lord Judge, regarding cases where it is vital to know what the position is—he gave the example of a trial he had heard—I am keen to draw a line so that people know where they stand, just as, in relation to the rules of evidence over many centuries, English law has said that some evidence is admissible and some is not, even though from time to time, it has been obvious that the inadmissible evidence might have been very compelling, but for reasons of bigger policy it was inadmissible.

Police, Crime, Sentencing and Courts Bill

Debate between Lord Falconer of Thoroton and Lord Pannick

Lords Hansard - part one & Committee stage
Wednesday 3rd November 2021 Lords Chamber

[Lord Wolfson of Tredegar (Con)]

My Lords, my noble friend Lord Attlee indicated that I should come along quietly. I am not going to do that; however, I hope that I will come along realistically and clearly in setting out the Government’s position. There is no dispute in this Committee that the behaviour we are talking about is absolutely abominable and indefensible. I therefore appreciate why a proposed new clause on this distressing subject of breastfeeding voyeurism has been tabled for debate. I start by expressing my unequivocal support for the mothers who have experienced this sort of appalling behaviour.

As the noble and learned Lord, Lord Falconer, said, we have heard a number of really outstanding speeches, some of which were very personal in terms of people’s history and families. I respectfully endorse the point made by the noble Baronesses, Lady Hayman and Lady Brinton, that this is not just a matter of protecting privacy or preventing distress; it is also important because we want to promote the very real benefits of breastfeeding. I take all the points made in that regard on board; I also take on board the point made by the noble Baroness, Lady Jolly, on the bonding time—the quiet time, if I can put it that way—that breastfeeding provides. On whether breastfeeding also benefits fathers because we do not have to get up at night, on that I will—if, as a Minister in a UK Government, I am allowed to dip into a foreign legal system for a moment—plead the fifth amendment.

To pick up a point made by the noble Baroness, Lady Hayman, I assure the Committee that, depending on the specific circumstances, it may be possible—I underline “may” because I accept that it will not be possible in all circumstances—to capture this sort of disgusting behaviour under some existing offences, including public order offences and offences dealing with harassment and stalking, along with the common-law offence of outraging public decency. However, this is not a complete answer; I do not put it forward as such. We recognise that the law in this area is not always clear, and that consideration should be given to improving it. That is why we asked the Law Commission to review the law around the taking, making and sharing of intimate images without consent, to identify whether there are any gaps—or, rather, what the gaps are—in the scope of protection already offered to victims. The review looked specifically at voyeurism offences and non-consensual photography in public places, including whether the recording and sharing of images of breastfeeding should be included in the scope of “intimate” images for the purposes of any reformed criminal law.

However, a change in the law here will not be straightforward. I will explain why in a moment. With an amendment such as the one moved by the noble Baroness, there may be a variety of situations in which it is still not an offence to take a picture of a person breastfeeding. That is why the Law Commission’s review is looking into intent, the definition of “image” and other circumstances relevant to this issue. As the Committee is already aware, the Law Commission’s work has gone at some pace. It obviously has an important eye for detail; that is why it is there. It intends to publish its recommendations by the spring of next year, so we are certainly not trying to kick this ball into the long grass. We are proactively considering what more can be done to tackle this behaviour and protect mothers now, ahead of the Law Commission’s recommendations for reform of the law in this area.

However, I respectfully disagree with the noble Baroness, Lady Hayman, that this issue is clearly defined in her amendment. I want to pick up on the point made by the noble Lord, Lord Pannick, if I may; we have had the benefit of some discussions. A number of points look like drafting points but are not, because they really go to the question of the scope of the proposed amendment and what it is seeking to encompass. Let me give a couple of examples, without turning the Committee into a legislative drafting session. Here is example A; I will try to use the initials from the amendment. A takes a photo of his wife, partner or girlfriend on a beach in her bikini, intending to use that image for his own sexual gratification. Another woman, B, is on the same beach, breastfeeding her baby, and is unintentionally caught by A in the picture. I heard what the noble Lord, Lord Pannick, said, but I respectfully suggest that this would be caught by the proposed amendment. A would have no defence as, first, he intended the picture for sexual gratification and recorded the image for that purpose. Secondly, he would have no defence of consent by B because B did not consent. A would also not be able to have the second defence of reasonably believing that she was giving consent because he had no idea at all that she was in the picture.

That is one example, but this goes further than drafting. Let us say that A was aware that B was caught in the background of the photo but was not aware that she was breastfeeding. Again, A would not be able to say that B had consented or that he reasonably believed that she had consented. Further, would an image of someone breastfeeding that did not actually include the act of breastfeeding—for example, a photograph capturing only a breastfeeding mother’s face—be captured under this amendment? What parts of the body, if I can put it that way, would we require the image to capture? As the noble Baroness, Lady Brinton, explained, this is different from the upskirting offence because the law there condescends to particular parts of the body that must be captured in a photo. Would we wish to capture images taken of breastfeeding regardless of whether it is in a private, semi-private or public setting?

I underline to the Committee that I do not raise these matters as drafting points or to be difficult. On the contrary, it is because this issue is so important that we must get the nature, boundaries and scope of the offence absolutely correct.

[Lord Pannick (CB)]

Does the Minister accept that his second potential problem would easily be dealt with by a drafting amendment to make it clear that the offence relates to a photograph or video of a breast? It would not be difficult to draft that. In relation to his first concern, which, as I understood it, was that if someone takes a photo of their wife or girlfriend breastfeeding for the purpose of sexual gratification and there is some other woman in the background—oh, I am sorry, have I misunderstood?

[Lord Falconer of Thoroton (Lab)]

Before the Minister answers that question, does he not also agree that we have perhaps seven or eight weeks before we get to Report, so the pettifogging points he is making could plainly be dealt with if we all sat round a table and agreed a draft?

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

Debate between Lord Falconer of Thoroton and Lord Pannick

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

[Lord Falconer of Thoroton]

My Lords, I will speak very briefly because this amendment has little significance now that the House has decided to remove Clause 2.

Schedule 6 deals with detailed regulation-making power under Clause 2. We will put down an amendment at Third Reading to get rid of Schedule 6, so this does not matter. I tabled Amendment 10 simply to illustrate the width of the power that was being given under Clause 2 and, had we lost the argument on Clause 2, to indicate that we would seek to remove this power. The power in Clause 2(1)(b) allows the Executive by statutory instrument to create offences in connection with the introduction of a private international law treaty with a punishment of up to two years. That is wholly inappropriate, and it illustrates the danger of what was being proposed. But I will not press this amendment to a Division because Schedule 6 will go in any event.

[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.

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

Debate between Lord Falconer of Thoroton and Lord Pannick

Committee stage & Committee: 1st sitting (Hansard) & Committee: 1st sitting (Hansard): House of Lords
Wednesday 13th May 2020 Lords Chamber

[Lord Falconer of Thoroton (Lab)]

My Lords, the effect of the three amendments in this group—Amendments 1, 4 and 5—is that the power in Clause 2 which allows a Minister by regulations to change the law of the United Kingdom to reflect an international treaty on private international law that the country has entered into would be restricted to the Lugano convention only.

It is perhaps sensible if, in addressing the three amendments in this first group, I set out the context, in effect, of most of my amendments in Committee. Clause 1 introduces into the domestic law of the UK the content of three private international law treaties: one dealing with the abduction of children from one country to another; one dealing with the enforcement of child support and family maintenance orders; and one dealing with commercial agreements where a choice of court clause is specified in the agreement. The effect of bringing these three conventions into UK law is that the terms of those conventions become part of our domestic law and are what our courts then give effect to as part of the law. For example, the Hague abduction treaty means that where a couple bring up a child in one country, where there is custody with one parent, and that child is abducted by the other parent to another country—for example, the UK—then, according to that convention, the UK courts, as a matter of domestic law, should return the child to its normal place of residence and should refuse to do so only if there is fear for the child’s safety.

These private international law agreements change the law of the country as a result of agreements that the Executive have entered into. We on these Benches have no objection to those three treaties being brought into domestic law—this is a piece of primary legislation—but we have very considerable objections to Clause 2, and our primary position is that it should not stand part of the Bill. It allows the Government to change the law of the country by delegated legislation, even by changing primary legislation, to give effect to agreements that they have entered into in private international law.

Our objections are, in effect, threefold. First, as a matter of constitutional propriety, this is wrong. It is wrong that there should be such little accountability by Parliament in respect of potentially very significant changes in the law. In support of that principled constitutional objection, I have the support of the Constitution Committee, which is chaired by my noble friend Lady Taylor, the Delegated Powers Committee, which is chaired by the noble Lord, Lord Blencathra, and the chair of the Treaties Sub-Committee, my noble and learned friend Lord Goldsmith. All see this as a matter of constitutional impropriety.

In the face of that unanimity of view about what is a constitutionally improper thing to do, what is the Government’s justification for doing this? I have scanned carefully the two speeches by the noble and learned Lord the Advocate-General for Scotland, Lord Keen of Elie, at Second Reading about why this move is justifiable. He gave no general explanation in either speech. He acknowledged in his opening speech that there might be an issue about the Lugano convention, which deals with the jurisdiction and enforcement of judgments between, among other things, members of the European Union. He said that we might end up in a situation where we want to join the Lugano convention, that we have to do it before the end of the transition period, and that we would negotiate it only at the very end of the period. He said that because of those exceptional circumstances there should be power to join the Lugano convention by delegated legislation.

For that reason—and that is the only example given —we have tabled, by way of probing amendments, Amendments 1, 4 and 5, which restrict the power to the Lugano Convention because of those special circumstances. There is a live debate about whether the UK should join the Lugano Convention, and in his speech at Second Reading the noble and learned Lord, Lord Mance, set out the shortcomings of the convention.

My preference is that we delete Clause 2 altogether and that, if the Government of the day join an international convention that has effects on our domestic law, that should be approved only by primary legislation. It is said that private international law is a “narrow” and “specialist” topic. The complex rules surrounding it can be both narrow and technical, but they deal with hugely important issues that affect everybody, such as family life, consumer, personal injury and international trade issues. That the law is complex does not mean that the issues covered are not of real significance.

I invite noble Lords to consider whether they wish to restrict Clause 2 only to the Lugano Convention, but that is in the wider context of urging them not to allow the Government this wholly inappropriate power, never used previously and for which no proper justification has been given. I beg to move.

[Lord Pannick (CB)]

My Lords, I support the observations so powerfully made by the noble and learned Lord, Lord Falconer of Thoroton. I too am concerned about the width of Clause 2. My concern arises from the discussions and conclusions of your Lordships’ Constitution Committee, of which I am a member, serving under the distinguished chairmanship of the noble Baroness, Lady Taylor of Bolton.

As the noble and learned Lord, Lord Falconer, said, the committee concluded that Clause 2 raises matters of considerable constitutional concern. The concern is that, with the exception of EU law—from which we are in the process of extracting ourselves—it is a fundamental principle of our constitution that international agreements can change the content of our domestic law only if and when they are given force by an Act of Parliament. The Constitution Committee saw no justification for the change that Clause 2 would introduce—that is, to confer on Ministers a power to achieve such a result by statutory instrument.

We recognise that many of the international agreements to which Clause 2 would apply are technical in nature and that their text cannot be changed after negotiations have concluded; nevertheless, we think there is no justification for allowing our law to be changed by statutory instrument without the need for full parliamentary debate. Clause 2 will allow not just for the implementation of the text of the international agreement but for “consequential, supplementary, incidental” provisions. It will allow Ministers to create new criminal offences by statutory instrument. These are matters requiring detailed scrutiny of a Bill through the various stages of the parliamentary process, during which amendments can be debated and, if necessary, divided on. Members of the Constitution Committee are concerned to maintain ministerial accountability to Parliament. This is not emergency legislation; it is a proposal for a permanent shift in power to the Executive.

--- Later in debate ---

[Lord Falconer of Thoroton]

My Lords, I believe that Clause 2 should not stand part of the Bill. We have discussed these matters at considerable length today. I simply make the point that it will be constitutionally unprecedented if we end up in a situation where the Government have complete power in relation to private international law agreements in the future, not only to implement the changes to domestic law that are required by secondary legislation but to make regulations that relate to those agreements or connect with them, which goes very much wider than the terms of the agreement itself.

We have discussed considerably today the justification for this unprecedented power and it has been demonstrated —mainly on the question about timely implementation—not to withstand any degree of examination. I feel strongly that the House should reject Clause 2; we cannot do it in this Committee but, when the time comes, we should vote to remove it from the Bill. I think it is a separate debate as to whether there should be a special power in relation to Lugano, but this provision gives unlimited power for an unlimited time to introduce the consequences of international agreements into our domestic law with no primary legislation.

One final point, which has been made by the Constitution Committee, is that the consequence of doing this by secondary legislation is that it can be challenged in the courts and set aside by the courts on the grounds of judicial review. So not only is it constitutionally inappropriate, not only will it damage the quality of our private international law, but it will lead to legal uncertainty. Actions will be brought in court but set aside. I will invite the House on Report not to allow this provision to stand part. There is unanimity in this Committee with the exception—the plucky exception—of the Minister in that respect.

[Lord Pannick]

My Lords, I agree with the observations of the noble and learned Lord, Lord Falconer of Thoroton. I gave my reasons earlier for thinking that Clause 2 should not stand part and I shall not repeat them. I shall add just one further point. There has been discussion this afternoon, particularly from the noble Lords, Lord Adonis and Lord Foulkes of Cumnock, about the disadvantages of Virtual Proceedings, disadvantages notwithstanding the exceptional efforts made by the clerks and the staff, for which we are all very grateful, to ensure that these Virtual Proceedings can take place. The additional disadvantage that I want to mention—additional to those who have already been identified—arises from the correct observation of the noble and learned Lord that the Minister stands alone on this subject; all other speakers have explained why Clause 2 is objectionable.

The point is that if we were on the Floor of the House, the Minister would not just hear and see those who are speaking; he would see and hear expressions of disapproval from all around the House, including from his own Benches; he would sense the degree of concern that there undoubtedly is about the constitutional implications of Clause 2. This debate has highlighted those concerns, but I hope the Minister will understand that there is a very widespread concern around the House, not just from those who have spoken today but from those who would be present in Committee were normal proceedings to apply. By their presence and their body language, other Members of the Committee would indicate their profound concern. I hope he will take all that into account before Report.