Criminal Justice and Courts Bill

Debate between Lord Goldsmith and Lord Judge

Wednesday 30th July 2014 Lords Chamber

[Lord Goldsmith]

I utterly support everything that has been said in opposition to this clause but I want to deal with it from a slightly different perspective—from a government perspective. When I was in office I was responsible for many of the judicial reviews that were taken against the Government, either dealing with them myself or supervising and watching other advocates deal with them. I also from time to time made interventions, a subject to which the noble and learned Lord, Lord Woolf, referred. I hope that the Minister will take on board the important point that the noble and learned Lord has just made and take it back to his colleagues. This is public law and an area where the decision will affect many others. I often found, in cases where there was an intervention, that it was because of the intervener that the real issue emerged. That was often because it was the noble Lord, Lord Pannick, who was making the intervention—my heart often sank when he came up because I knew we were in for a tough fight. However, I knew that the real issue would be there and that, as the noble and learned Lord, Lord Woolf, said, the implications for third parties would be properly brought forward and understood. That is critically important when a court is making a decision.

The noble Baroness, Lady Lister, said that the Government are in listening mode, and I hope that they will listen on this. As a young barrister, I recall being told by a senior official from the Treasury Solicitor’s office when I said, “I hope we win this case”, that the Crown “neither wins nor loses cases; we simply clarify the law”. As an ambitious young barrister, that was not my approach to things, but it is not actually a bad approach. The Government should care that the law is clarified and that it is clarified in the best possible way. That will often require interveners, who will make sure that the right issues and the proper arguments are brought forward and that the full implications are understood. I cannot see any reason for this clause being there other than to chill such interventions. That would be a very bad thing for the course of justice and I hope that the Government will think again.

[Lord Judge (CB)]

My Lords, I endorse, from the point of view of England and Wales, what my noble and learned friend Lord Carswell said about his experience at first instance and in the Court of Appeal in Northern Ireland. On one view of the clause, the Supreme Court is being discriminated in favour of. The Supreme Court consists of five, seven or nine of the brightest legal minds in the country—in the whole country. One judge sitting alone at first instance, or three judges sitting in the Court of Appeal, do not have that same intellectual power. It is immensely helpful to the judge or to the Court of Appeal to have an intervention, leave for it having been granted by somebody who knows something about issues which might have been overlooked.