Criminal Justice and Courts Bill

Lord Morris of Aberavon Excerpts

Tuesday 9th December 2014 Lords Chamber

My real worry about this whole series of returns, having won the argument, having had a significant majority, having been advised by some of the best legal brains in the country, and having had—if I may dare say so to the noble Lord opposite—the support of large numbers of Conservatives and Liberal Democrats and almost every Cross-Bencher, is that, after all that, I hope, had I been a Minister, I would have tried to find a way through that was as simple as the one that has been presented by the noble Lord, Lord Pannick. This is a very generous amendment; for me, it does not go far enough. However, I shall support it. I hope that real Conservatives will support it because it is about the rule of law—that is really why I objected to the way that the noble Lord opposite spoke—which all of us in this House, irrespective of our parties, should support. That is why we are here. If we do not defeat this and insist on the amendment we will not have done our duty.

[Lord Morris of Aberavon (Lab)]

My Lords, I will not detain the House for more than a few minutes. I listened carefully to the last debate on this issue. There was nothing to add to the wide experience, in more than one capacity, of the noble and learned Lord, Lord Woolf, and of the noble Lord, Lord Pannick. In my non-ministerial years while at the criminal Bar, dealing with murders, rapes and frauds, the opportunities of polishing my talent in judicial review applications were few and far between. Hence, I did not speak earlier. However, what I want to say—it is a fundamental point—is that what I find offensive is the fettering of judicial discretion in a constitution that does not have the protection of a Bill of Rights. That is important.

The only point that I want to make in this debate is to show and illustrate, from my own experience, how government departments respond to an adverse finding in a judicial review. The Attorney-General’s office, for which I was responsible, has never, to my knowledge—certainly not up to my time—been judicially reviewed. However, the Attorney-General is responsible in Parliament for the Director of Public Prosecutions and supervises that office. By Act of Parliament, the Attorney-General appoints the director. He or she would be seen week in and week out, when significant cases would be discussed, although it is the director alone who takes the decision whether or not to prosecute.

Three important cases of death in custody—nothing, to my mind, having had a constituency next to a prison, would cause greater concern than an issue of that kind—were judicially reviewed as to the director’s decision not to prosecute. The court criticised the Crown Prosecution Service severely. What did I do? I immediately set up a non-statutory inquiry under a senior retired circuit judge, His Honour the late Gerald Butler, whom I located late on a Sunday night in the serenity of Cornwall and seduced him to do some additional work. His published report was extremely critical. I knew immediately that lessons had to be learnt and supported the work that I had undertaken to review fundamentally the Crown Prosecution Service. This was important additional evidence and it was essential to avoid a recurrence. Firm and speedy action was necessary. I hope that that brief example illustrates how one government department responded immediately to the findings of the court. The result was a huge transformation in the operation of the Crown Prosecution Service.

I have no reason to believe that any other government department does not take the findings of judicial review equally seriously; hence my firm belief in the unfettered judicial curb on the Executive—to ensure legality, to ensure that Ministers believe and act legally—and in the continuation of the long-standing judicial discretion which is the bastion for the maintenance of the rule of law.