Criminal Justice and Courts Bill

Lord Judge Excerpts

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.

[Lord Mackay of Clashfern]

My Lords, so far all noble Lords have spoken in the one sense in relation to this clause. Obviously, in the interests of balance, it is important to consider whether there is anything to be said in favour of the clause. So far as I am concerned, there has been a considerable growth in the number of interventions over recent years. I would like the Government to indicate to us—at some later point if they do not have the information now—exactly how many interventions there have been in the supreme courts. I use that term in its old form, because I think it is extraordinary that we now have senior courts and the Supreme Court. It is high time that the Supreme Court was regarded as the supreme court of the United Kingdom, while the High Court of Justice, the Crown Court and the Court of Appeal were the supreme courts of England and Wales. I hope that, after September, all being well, that may be corrected.

I am not aware that judgments have considerably improved in quality in recent years as a result of interventions, although there may be some way of estimating that. It is always a little difficult, but somebody may be able to do that for us and show the tremendous amount that the interventions have done. I know that the noble and learned Baroness, Lady Hale, for whom I have the highest possible regard for a number of reasons, has said that they are often helpful. I am sure that that is true. Everybody wants help; at least most people with any degree of humility are glad to get help, from whatever quarter it comes.

The noble Lord, Lord Marks, referred to an aspect of this which I think has to be taken into account. Some of the interveners are campaigning organisations, which are campaigning for a particular result. You may take it that they had a good shot at trying to persuade Parliament to go along with them and that, having failed at that, the campaign is continued once the law is passed. These are not conclusive arguments one way or the other, but I personally find this clause too prescriptive in any event. If there is a real point to be considered, the clause needs some revamping, possibly in the light of the amendments that have been proposed. At the moment, I am anxious to see just why there has been a huge increase—as I think there has been—in the number of interventions in recent years. The first intervention that really came to my notice to any substantial extent was an intervention in this House in a case that became rather important for a number of reasons.