Lord Judge debates involving the Scotland Office during the 2017-2019 Parliament

Wed 7th Mar 2018
European Union (Withdrawal) Bill
Lords Chamber

Committee: 5th sitting (Hansard): House of Lords
Wed 28th Feb 2018
European Union (Withdrawal) Bill
Lords Chamber

Committee: 3rd sitting (Hansard): House of Lords

European Union (Withdrawal) Bill

Lord Judge Excerpts
Lord Hope of Craighead Portrait Lord Hope of Craighead
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I am very grateful to the noble Lord and I apologise for not having paid due regard to that formula because the wording is exactly what I am looking for, but I am trying to fit it into the opening words of Clause 6(2). However, it is certainly right; I respectfully suggest that “may” is the right word to use. It is better to add in the bit about,

“where it considers it relevant”,

which is what comes from the noble Lord, Lord Pannick. So one is putting together bits and pieces of thought from various attempts to produce a formula.

Perhaps I may read out again for Hansard’s benefit how I suggest the provision might run: “A court or tribunal need not have regard to a judgment or decision given by the European Court on or after exit day, but it may have regard to it where it considers this relevant for the proper interpretation of retained EU law”. If “may” is used—although the noble Lord, Lord Pannick, will correct me—proposed new subsection (2C) in Amendment 56 will no longer be relevant. I say nothing about subsection (2B) which may have force and value if the court requires guidance as to what to do with the agreement between the United Kingdom and the EU.

I hope that that contribution will give the Minister something else to think about. I think that we all hope that on Report he may be able to come back with a formula which we can all endorse.

Lord Judge Portrait Lord Judge (CB)
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My Lords, perhaps I may add a few words, simply because of the devoted affection in the Bill for the word “appropriate”. It is larded through the document. Its inappropriateness in this particular context needs to be underlined—I shall come back to it at a later stage under different clauses. It is terribly simple: if something is relevant to a court’s decision, it is likely to be appropriate that the court should look at it. If something is irrelevant to the court’s decision, it cannot possibly be appropriate for the court to look at it. So the term “appropriate” should go.

European Union (Withdrawal) Bill

Lord Judge Excerpts
Lord Judge Portrait Lord Judge (CB)
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May I just have a few moments?

None Portrait Noble Lords
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Hear, hear.

Lord Judge Portrait Lord Judge
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Well, noble Lords may not want to hear what I am going to say. I have had a sense developing over the last 40 minutes that we are well ahead of ourselves. We should be discussing these issues when we come to decide the very important question of whether retained EU law is to be treated as primary legislation, subordinate legislation or a bit of both. We will then have a debate on Clause 7, which entirely addresses this issue of subordinate legislation and Henry VIII powers, and we will come again to it when we debate Clause 9.

I just make two points. First, no Parliament can bind its successor. We do not know what a future Parliament will think about all these various matters raised in proposed new subsection (6) in Amendment 21; they are very important issues, but we cannot bind anybody. Secondly, in relation to the exercise of any Henry VIII powers—and there will of course have to be careful thought given to it—I am fascinated by the proposal in proposed new subsection (2) in Amendment 21 that a schedule should list,

“technical provisions in retained EU law that may be amended by subordinate legislation”.

When we come to look at Henry VIII powers, do we not have to take a rather more revolutionary look at them? Should we not be saying to ourselves that the Government of the day—whatever Government it may happen to be—should, at the very least, in the proposal for subordinate legislation, set out which terms of primary legislation are being repealed, amended or affected by the secondary legislation? That is some food for thought.

Lord Keen of Elie Portrait Lord Keen of Elie
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My Lords, as may have been observed during the passage of the Investigatory Powers Bill, the Government are always listening. I am most obliged to the noble and learned Lord, Lord Judge, for his observations, because they go to the very heart of the point I want to make. We are, in a sense, having the wrong debate in the wrong place, but I am also relieved to hear from my friend the noble Lord, Lord Pannick, that he does not understand paragraph 3 of Schedule 8, because I was rather concerned about his earlier interpretation of it under reference to the opinion of Pushpinder Saini, QC—I will come back to that in a moment, if I may.

The areas that these amendments seek to protect, such as employment rights and environmental standards, are issues that are important to every Government, and in particular this Government. Of course, we are anxious to ensure that rights and standards such as these are maintained—indeed, where possible, increased —after we leave the EU. It might be observed that UK protections in many of these areas—for example, parental leave—in fact go beyond the level of protection provided for in EU law, so let us keep this in context.

It is important, however, that we are able to address deficiencies to ensure that the protection of these rights and the standards that they reflect continue to function effectively and that the Government are able to amend legislation in line with our history of leading in these areas of protection. When people voted to bring back power to our Parliament and to bring back control of our laws, they did not vote to put them in the deep freeze for any number of years. We have to see this in context: we are talking about thousands of regulations—somewhere in the order of 12,000 regulations —which were of course not the subject of parliamentary scrutiny; and we are talking about thousands of SIs implementing directives, which were of course not the subject of parliamentary scrutiny, which have come into our law and will be part of our law on exit day, because they will form part of the area of retained EU law.

The noble Baroness, in her amendment, proposes a schedule of “technical provisions” in an area where we are dealing with enormous quantities of law, by way of regulation and by way of implemented directives. The first point that would arise is: where is the line to be drawn between what is a technical and a non-technical provision? The noble and learned Lord, Lord Falconer, alluded to this as one of the three criteria he had in mind. You have to be able to define these criteria, otherwise you immediately run into a further issue. That is in itself a very real challenge: how would we define or class a technical issue in the context of seeking to update retained EU law?

Perhaps the more important point, however, is that much of what has been said here anticipates the issues that we will debate in the context of Clause 5, on the classification of retained EU law, and, more particularly, Clause 7, in relation to the exercise of certain powers by government in dealing with the body of retained EU law. Again, it is important to try to put this in context. We have had references to the suggestion that the Government are taking untrammelled, unlimited powers to do virtually anything with the statute book. Let us not, even if we think we have a good case, overstate it because, in doing so, we rather spoil our argument. That is not at all what the Government seek to do. Clause 7 is concerned with how we deal with deficiencies arising from our withdrawal from the EU. It is therefore concerned, as it says, about the making of regulations which are,

“appropriate to prevent, remedy or mitigate—

(a) any failure of retained EU law to operate effectively”.

We are not talking about wholesale policy changes to our employment or environment laws, our standards for consumers or anything of that kind. The noble Lord, Lord Pannick, referred to—

CPS: Disclosure of Evidence

Lord Judge Excerpts
Monday 18th December 2017

(7 years ago)

Lords Chamber
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Lord Keen of Elie Portrait Lord Keen of Elie
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I am obliged to my noble friend. It is of course important that the defence has the opportunity and the means to consider what requests should be made of the prosecution in the context of disclosure. Indeed, in the context of the case alluded to earlier, that point will be addressed.

Lord Judge Portrait Lord Judge (CB)
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Could the review also look into this simple question? It is reported that it took 14 months for this young man to be charged, which means that he was on bail uncharged for 14 months. What on earth is the reason for that?

Lord Keen of Elie Portrait Lord Keen of Elie
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My Lords, I am not able to determine why the charge took as long as it did in that case. I appreciate that investigations take longer in some cases than they do in others, but I cannot—

Bach Commission: The Right to Justice

Lord Judge Excerpts
Thursday 14th December 2017

(7 years ago)

Lords Chamber
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Lord Judge Portrait Lord Judge (CB)
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My Lords, the provisions of LASPO in relation to legal aid were not wise. In truth, as the Public Accounts Committee discovered in 2015, they were ill considered. I will make just a few observations, having listened to the debate thus far.

Underpinning the invaluable report by the noble Lord, Lord Bach, a former colleague of mine on the Midlands circuit—we practised together and did cases against each other—and underpinning every single contribution by all noble Lords who have spoken is this: there are litigants with a genuine claim which merits the attention of a court but who cannot afford to litigate it, and there are litigants with a serious defence in law to a claim brought against them, which they cannot afford to litigate. If they do not or cannot afford to go to court to enforce their rights or to protect themselves, their choices are very stark, and they do nothing. They are uncounted, unknown victims of miscarriages of justice. Nobody knows how many there are because they do not turn up to be counted.

Alternatively, and with great courage, they bring or defend their own cases as litigants in person. I want to touch on one aspect that, although it has been addressed by some of your Lordships, has not been fully addressed: the impact of litigants in person on the administration of justice throughout the country, particularly in the county courts, where district judges do invaluable, hard work dealing with the day-to-day concerns of the ordinary citizen. They have to deal with many cases, but the problem of litigants in person goes all the way up to the Court of Appeal, where Lord and Lady Justices of Appeal are considering applications for leave to appeal by litigants in person.

These judges have to deal with such cases. No judge can possibly hope to ascertain the facts presented to him by a litigant in person without having to delve through mounds of uncounted and unnumbered papers, sometimes in confused or non-date order. This is not through any want of effort—often they are presented to you in beautiful files—but for want of expertise. They are presented by the litigant in person in an emotionally charged situation. This man or woman is in a place where he or she does not wish to be, and is frightened by the processes, even if helped by organisations such as Citizens Advice or the personal support units there are in many courts. It is emotionally charged for that reason, and because he or she feels that an injustice has been done or that justice is required. Trying to help that litigant in person to do the best for his or her case leaves the judge in a very difficult position, because the judge has to avoid the danger that the litigant on the other side will think, “Why is the judge helping my opponent? Why is the judge helping the person bringing the claim against me?”. So the judge is faced with an exceptionally tricky and delicate course. He has to remain neutral and be perceived to be neutral. Sometimes there are litigants in person on both sides, with the same vast bundle of papers, only in a completely different order because there has been no organisation by lawyers beforehand to present the judge with the few papers, the few documents, which actually matter.

Then off the judge goes, trying to find out what the law is. This is too serious a subject for jest, but I must allow myself this. In the Garden of Eden, there was one law: “Don’t eat the fruit of that apple tree”. Then we had 10 commandments. We produce 12,000 pages of laws every year—every year. The judge has to try to find out which bits of the law matter, because no judge anywhere in the world knows all the law. He has a qualified lawyer on both sides. He can say, “Mr so and so, where do I go now?”. “Section 22 of the Landlord and Tenant Act”. “Mr so and so, where do I go then?”. “My Lord, it is in the Social Security Act”.

What are the consequences—because there is a consequence beyond that of the unknown victim? The consequence is this. Cases take much longer than they did, at every level of the court. You may say that that does not matter, but it is a very strange economy: the judges are working harder but getting through fewer cases. The consequence to the administration of justice is this: lists of cases are reduced. A judge who could do 25 cases in the county court every day can now do only 15. You see the concertina effect. Gradually, more and more delays are being built into the system.

It is not just about the man or woman with a good case—although they are the prime victims—it is about every other litigant who suffers in consequence of this unwise legislation.