Courts and Tribunals (Online Procedure) Bill [HL]

Debate between Lord Mackay of Clashfern and Lord Pannick

Report stage (Hansard): House of Lords
Monday 24th June 2019 Lords Chamber

[Lord Mackay of Clashfern (Con)]

My Lords, I took some part in previous discussions of these matters in relation to the powers of the Lord Chief Justice and the fact that he—or she, if it happens to be so—is now the head of the judiciary and the Lord Chancellor is not. I am inclined to remember—I may be wrong, and I hope that my noble and learned friend will correct me if I am—that a provision of exactly this type was made in relation to the other procedural committees that currently exist. It is a considerable time since that provision was made, and as far as I know, no trouble has emerged. That is because I would expect the Minister to exercise great care in this matter. I think I am right in saying that that was not altered in the Constitutional Reform Act, as it is called, which changed the responsibility of head of the judiciary.

I am therefore inclined to want to hear a bit more about this before we come to a decision. When so much agreement has been reached, it is a pity if we fall from agreement at the last minute, particularly if to do so would produce a very strange anomaly between the existing law relating to either of the other procedural committees and this rather more technical committee.

I do not think Clause 9 has to do with the procedure rules. It has to do with the possible obstruction to those rules which may exist in legislation already passed as part of our law. The Lord Chancellor is entitled to make regulations to amend the Acts of Parliament which interfere with the proposals being accepted as Online Procedure Rules. The rules may well have an impact on old statutory provisions—for example, those which have an impact on whether or not you can have online procedures—most of which, I imagine, did not envisage that. It may be that they can be interpreted to include considerations of that kind, but that is the nature of the problem in relation to Clause 9.

After thinking this through as best I can, I would not care for the Lord Chief Justice to have to be involved in the regulation-making aspect of this business. If regulations are required, they should be made by the person with the appropriate political responsibility. I therefore have doubts about the relevance of the rules in relation to Clause 9.

As to Clause 8, as far as I know, existing law was left unchanged by the Constitutional Reform Act. As to Clause 9, I wonder whether it is appropriate for the Lord Chief Justice to get himself involved in the nitty-gritty of political regulation.

[Lord Pannick]

The noble and learned Lord says that it is not appropriate for the Lord Chief Justice to be involved in Clause 9 matters—that he is not relevant to that—but the clause makes him involved. It gives him a role because he has to be consulted, so he is not irrelevant at all.

[Lord Mackay of Clashfern]

Exactly. He is doing exactly what I think is required. If the person who has the responsibility finds out that it is okay with the Lord Chief Justice—at least that is what I hope would happen—that person then goes on and does it. Therefore, consultation is probably the right balance at that stage. I am rather against the idea of involving the Lord Chief Justice in any form of political work. I thought the Constitutional Reform Act sought to achieve separation between the judiciary and the legislature, so that the acting judiciary were no longer part of the legislature.

Courts and Tribunals (Online Procedure) Bill [HL]

Debate between Lord Mackay of Clashfern and Lord Pannick

Committee: 1st sitting (Hansard): House of Lords
Monday 10th June 2019 Lords Chamber

[Lord Pannick]

My Lords, like the noble Lord, Lord Beith, I have added my name to the amendment tabled by my noble and learned friend Lord Judge to ensure that the powers which are being conferred on the Lord Chancellor can be exercised only with the concurrence of the Lord Chief Justice. My reason for doing so is essentially the same as that of the noble Lord, Lord Beith, and my noble and learned friend Lord Judge: the powers conferred by the Bill are exceptionally broad and there need to be adequate controls.

The Minister’s response before this afternoon essentially amount to, “Don’t worry—there are sufficient means through committees that will ensure that these powers are never used inappropriately, far less abused”, but as my noble and learned friend Lord Judge mentioned, the Lord Chancellor has the power to appoint the majority of the committee. The most effective means of ensuring that these powers are used only in an appropriate manner is to ensure that they may be exercised only with the concurrence of the Lord Chief Justice. As the Minister indicated during one of our earlier debates this afternoon, to amend the Bill in this way would considerably help to resolve many of the other defects in it which we have been debating.

My noble and learned friend Lord Judge made a point that is so important that it needs to be repeated: there is nothing novel about legislation requiring the concurrence of the Lord Chief Justice and the Lord Chancellor. This very Bill, at Clause 6(2), states that the Lord Chancellor’s powers to make regulations relating to the committee may be exercised only,

“with the concurrence of … the Lord Chief Justice and … the Senior President of Tribunals”.

Therefore, I suggest to the Committee that the question is not whether in principle ministerial powers should ever be constrained by a need to obtain the concurrence of the Lord Chief justice but whether that restriction is appropriate in relation to these powers. In my view, such is the breadth of the powers that we are conferring and so intimately do they address the fair administration of justice, which is after all the business of the Lord Chief Justice, that his or her agreement should be needed for their exercise.

Whether it was a blandishment or otherwise, I was very pleased earlier to hear the Minister give a commitment to consider this issue actively before Report. I very much hope that, on Report, the Minister will feel able to table an amendment or amendments to address this issue or, at the very least, to support amendments in the name of my noble and learned friend Lord Judge.

[Lord Mackay of Clashfern]

Having had the honour of holding the office of Lord Chancellor when the Lord Chancellor was the head of the judiciary, I think it is right for me to say a word or two about the present position.

It is very important to remember that our constitution recognises three arms: the legislature, the Executive and the judiciary. The judiciary is a distinct arm from the Executive. The Executive have responsibilities in relation to the judiciary, and of course the judiciary has responsibilities in relation to the people of this country in a way that is unique. If somebody else is entitled to say, without getting the ultimate agreement of the Lord Chief Justice, “We’re going to alter your procedures in the court. We’ll tell you about it and we’ll consult you but, if you don’t like it, we’ll do it all the same”, that seems to subvert the idea that the Lord Chief Justice is the head of the judiciary. The judiciary must act according to procedures and, if you alter the rules or procedures without his agreement, it seems to me that you subvert his position as the head of the judiciary as distinct from the Executive and the legislature.

Incidentally, I cannot help remarking at this stage that the judiciary has been silenced from having any part in the legislature. I regard that as an extraordinarily retrograde step. I hope that some day it will be put right by a responsible Government and that we will have the very great advantage of hearing in the House of Lords not just all past Lord Chief Justices but the present one as well.

The Lord Chief Justice’s agreement seems to me absolutely essential. Indeed, I would like to feel that he would be the initiator of changes in procedure as a result of committee recommendations. His responsibilities will be encroached upon if these procedures do not work.

My only other remark is that the reference to the Secretary of State in Clause 6(2) is probably to the Secretary of States for Wales, the language of Wales being important in this connection.

Business of the House

Debate between Lord Mackay of Clashfern and Lord Pannick

Thursday 4th April 2019 Lords Chamber

[Lord Mackay of Clashfern]

That is what it says, but why should we accept that? It is supposed to be a negotiation. If we wanted an alternative arrangement, I should have thought that the position should be us saying what that alternative is. I have heard, “We don’t know what the UK wants”, again and again. A specific amendment to the agreement might well be subject to further consideration.

[Lord Pannick (CB)]

My Lords, the House of Commons sent us a Bill that its Members consider urgent. We should get on and consider its merits and demerits. Forty-nine noble Lords have put their names down for Second Reading, including the noble Lord, Lord Forsyth. There will be ample time during Second Reading for all these points to be explored. I suggest that we get on and do it.

Privileges and Conduct

Debate between Lord Mackay of Clashfern and Lord Pannick

Thursday 15th November 2018 Lords Chamber

[Lord Pannick]

She did not conduct a cross-examination, and it is very difficult for the person making the decision to enter into the arena to do so. The experience of all distinguished inquiry chairmen, of whom there are many in the House—particularly the noble and learned Lord, Lord Woolf—is that when they are making a judgment in an inquisitorial inquiry on a question of fact which depends on credibility, they either allow the parties to cross-examine or they appoint counsel to the inquiry to conduct that process, which would also be entirely acceptable.

[Lord Mackay of Clashfern]

Is the noble Lord, Lord Pannick, suggesting that this lady, appointed by the House as a commissioner, did not have the necessary skills to probe the evidence on both sides? According to her, that is what she did and she had to form a view about it which she presented to the committee. I have no reason to suppose that she did not reach the correct conclusion.

[Lord Pannick]

I have no quarrel with the good faith of the commissioner. She did not conduct a cross-examination; she did not appoint someone to do it; nor did she allow the noble Lord, Lord Lester, through his counsel or his solicitor to do so. If the noble and learned Lord were to look in the Times today and see the letter from the solicitor to Ms Sanghera, he would see that he does not suggest that a cross-examination was carried out; his argument is that it was not necessary and fairness did not require it.

The noble Baroness, Lady Hussein-Ece, expressed concern about how we are perceived outside this House and said that we must be careful not to deter complaints. I do not accept that for us to follow a fair procedure that applies in all other contexts would either deter genuine complainants or damage our public reputation. On the contrary, we would be recognising and applying standards of fairness that are universally recognised in all other contexts.

European Union (Withdrawal) Bill

Debate between Lord Mackay of Clashfern and Lord Pannick

Wednesday 21st March 2018 Lords Chamber

[Lord Mackay of Clashfern (Con)]

My Lords, I strongly support the amendment. It is essential that the status of retained EU law in our law should be determined by Parliament as part of this Bill. I supported an amendment that the noble Lord, Lord Pannick, moved earlier to say that retained EU law should be treated as primary legislation. It is so treated by the Bill for the purposes of the Human Rights Act. It is highly desirable that this should be fixed definitely as part of the arrangements and not left to be decided, as it were, ad hoc from time to time by the use of the power to which the noble Lord, Lord Bassam of Brighton, has drawn attention.

Originally, the amendment that the noble Lord, Lord Pannick, proposed covered the whole of this law. I am inclined to think that the Clause 2 provisions, which are already in our law, have the status given by our law already. Some of them are statutes and some are subordinate legislation. Having considered this a little further since we discussed this some long time ago, I am inclined to think it might be wise to restrict the provision that this should be regarded as primary legislation to the Clause 3 provisions.

[Lord Pannick]

My Lords, in the previous debate the Committee deliberated on the vice of Clause 17(1). The amendment proposed by the noble Lord, Lord Bassam of Brighton, identifies a specific reason why Clause 17 (1) is so objectionable. When the Constitution Committee put to Ministers our concern, to which the noble and learned Lord, Lord Mackay of Clashfern, has just referred, that the Bill should identify the legal status of retained EU law, the answer from Ministers was that if necessary or appropriate they could use the powers conferred by Clause 17(1) to designate what legal status retained EU law would have, and designate different parts of retained EU law for different purposes. The Constitution Committee made its view very clear in paragraph 69 of its report:

“It is constitutionally unacceptable for Ministers to have the power to determine something as fundamental as whether a part of our law should be treated as primary or secondary legislation”.


We debated what legal status should be given to retained EU law earlier in Committee. I respectfully agree with the observations made just now by the noble and learned Lord, Lord Mackay of Clashfern. I emphasise, however, that it is the width of Clause 17 (1) that is so objectionable as it enables Ministers to assert that they could use it to make changes of such constitutional enormity to our legislation. I agree, therefore, with the concerns that the noble Lord, Lord Bassam of Brighton, has expressed.

European Union (Withdrawal) Bill

Debate between Lord Mackay of Clashfern and Lord Pannick

Committee: 4th sitting (Hansard - continued): House of Lords
Monday 5th March 2018 Lords Chamber

[Lord Pannick]

I do not think that the courts have accepted that proportionality can be a challenge by way of judicial review where you are not raising an issue of EU law or convention law—but we have come a very long way towards recognising proportionality as a principle of the common law. That is one reason why I am asking this very important question. I simply do not know whether you can challenge retained EU law after exit day by reference to traditional common law principles.

One reason why this matters is that the Supreme Court, in the HS2 case, suggested that this might be possible under existing law. As was raised in the debate last Monday, we should also bear in mind that, under Clause 2, retained EU law includes statutory instruments that do not owe their legal basis to the European Communities Act. They include statutory instruments enacted through other mechanisms, albeit that they are linked to EU law. At present, one can challenge those instruments by reference to traditional common law principles. Therefore, if Clause 1(1) were intended to prevent such a challenge after exit day, it would be a significant change in the law.

[Lord Mackay of Clashfern (Con)]

Are these questions affected by the proposal to make this particular branch of law statutory? In that case, certain principles of our constitution might cause some difficulty.

[Lord Pannick]

The noble and learned Lord is absolutely right. If retained EU law were to be categorised as primary legislation, such challenges could not be brought. But the Minister resisted that suggestion in our earlier debate. I am concerned with the Bill as it is at the moment. What is the Government’s intention in this respect?

Civil Procedure (Amendment) Rules 2017

Debate between Lord Mackay of Clashfern and Lord Pannick

Wednesday 13th September 2017 Lords Chamber

[Lord Mackay of Clashfern (Con)]

My Lords, I want to say one thing about this statutory instrument. It deals with a particular class of judicial review relating to the environment. It is special in this way: there are limitations of cost already in the system—of £5,000 where the claimant is claiming only as an individual, not as or on behalf of a business or other legal person, and £10,000 in all other cases. For a defendant, the amount is £35,000. In the previous arrangements that was fixed. It is certainly easy to think that, for a claimant, £5,000 might be a substantial amount in relation to his or her environmental interest.

These rules allow the court jurisdiction and discretion to alter these figures either up or down. It is important that the discretion is limited by this phrase:

“The court may vary such an amount or remove such a limit only if satisfied that … to do so would not make the costs of the proceedings prohibitively expensive for the claimant”—


that is the rule from the convention—and,

“in the case of a variation which would reduce a claimant’s maximum costs liability or increase that of a defendant, without the variation the costs of the proceedings would be prohibitively expensive for the claimant”.

The protection for the claimant is the jurisdiction and discretion of the court within the limits that that sets out. Is not in any way a damaging type of jurisdiction or discretion, but one that can help people who have a need for that. That must be taken into account in considering this instrument.

[Lord Pannick (CB)]

My Lords, my response to the noble and learned Lord is that these rules remove the certainty that potential claimants previously enjoyed. That is the vice as I see it. It is essential in these cases that a person considering starting proceedings knows at the outset the maximum liability they will incur. It is no answer to them, when they are thinking of bringing proceedings, that the cap may be reduced as well as increased. They want to know. If they do not know at the outset when considering bringing these proceedings what the maximum is, the likelihood is that many of them will be deterred from bringing these proceedings. That is the damage to access to justice.