Police (Detention and Bail) Bill

Lord Pannick Excerpts

Tuesday 12th July 2011 Lords Chamber

[Lord Pannick]

My Lords, when the three political parties, Justice, Liberty and, of course, the House of Commons all agree that this Bill deserves support, I am not going to express a dissenting opinion. But I am going to express concerns about the constitutional issues raised by the way in which the Government have proceeded. Parliament is being asked to enact emergency legislation to overturn a decision of the High Court. High Court judges, no doubt regrettably, occasionally make decisions that are perceived to be of enormous detriment to the public interest. But in all previous cases where this happened, an appeal was brought in the hope and expectation that the Appellate Committee of your Lordships’ House, now the Supreme Court, would overturn the High Court judgment, and only if that legal remedy failed was emergency legislation brought forward.

There are good reasons why emergency legislation is contemplated only if the appeal process has been exhausted. First, if the appeal succeeds, the problem disappears and Parliament does not need to become involved. Secondly, if the appeal fails, the judgment of the Supreme Court provides a much more informed basis on which Ministers and Parliament can address all aspects of the issue. Thirdly, and not least, surely constitutional propriety requires that the law should be interpreted by judges, not by Parliament. I understand that to be the point of the interventions made by the noble Lord, Lord Thomas of Gresford. It is all very well to have Members of the House confidently asserting, as they did last week, that Mr Justice McCombe’s judgment was wrong and that the Bill merely returns the legal position to what it was. It is all very well to have the noble Baroness stating today that the Bill returns the law, as she put it, to the status quo ante, but I subscribe to the apparently old fashioned view that it is for the Supreme Court to determine what was the legal status quo. Indeed, this case is even more surprising, because we are engaged in this exercise notwithstanding the fact that there is an appeal; it is pending in the Supreme Court, listed to be heard on 25 July. I shall come back to the timetable in just a moment.

The Minister said this afternoon that the decision to legislate in advance of the outcome of that appeal raises no constitutional issue, because Parliament, of course, is sovereign and competent to legislate at any time. She made the same point in her very speedy response to the report of the Constitution Committee, of which I am a member. I am sure that all members of that committee will be extremely grateful to the Minister for the urgency and speed with which she addressed the issues that we raised; but is it really the Government’s position that no constitutional issue about the respective roles of the judiciary and Parliament is raised when emergency legislation is introduced to overturn a decision of a lower court which is pending appeal to the Supreme Court and when the emergency legislation is being brought forward on the basis that it simply restores the previous position, which has therefore, it is implicitly suggested, been misunderstood by the High Court judge?

Of course, I understand that we cannot now wait for 25 July, because the Supreme Court may, on 25 July or very soon thereafter, dismiss the appeal and by then Parliament will be in recess, but that does not remove my concern about what has happened in this case. The vice is that nobody asked the Supreme Court to hear and determine the appeal more speedily. Appeal courts regularly hear and determine appeals very speedily indeed when it is necessary to do so. The timetable in this case is as follows: Mr Justice McCombe gave his oral judgment as long ago as 19 May. He refused permission to appeal on 25 May and on the same day he certified a point of law which enabled an application to be made to the Supreme Court for leave to appeal. That is seven weeks ago. It was not until 21 June that an application was made to the Supreme Court by the Greater Manchester Police for permission to appeal. For reasons which I still do not understand, the Government appear to have been unaware of the crucial significance of this case until about 30 June, even though Professor Michael Zander published an article pointing out the concerns on 18 June—he must have been aware of the problem some days before that.

The Supreme Court granted permission to appeal and expedited the case so that it will be heard on 25 July, but I have made inquiries of the Supreme Court and been told that neither the Greater Manchester Police nor anyone else asked the Supreme Court to hear the appeal earlier than 25 July because of the urgency and the need for Parliament to consider emergency legislation if the appeal was not to be heard earlier than 25 July. I am also told by the Supreme Court that, if it had been asked, it would of course have considered trying to hear the case more speedily because of the need to do so. That is what should have happened in this case. As soon as the importance of the issues was understood and the possible need for emergency legislation was recognised, an application should have been made to the Supreme Court for it to hear the case last week or at the beginning of this week on the grounds that, if the appeal failed, then and only then would the Government need, or possibly need, to bring before Parliament emergency legislation. There would then have been time to consider the matter before the Summer Recess and after the appeal if it were unsuccessful.

As noble Lords will know, the Attorney-General may intervene in any court proceedings to protect the public interest. The Secretary of State does not appear to have asked the Attorney-General to apply to the Supreme Court to hear the case more urgently. If such a request was made, it certainly was not acted upon. I should emphasise that, although the Supreme Court has very helpfully given me the information that I have recounted to noble Lords—I am very grateful to Jenny Rowe, the chief executive, for that—the views that I express on these matters are mine alone.

My concern is that this Bill is a most unfortunate constitutional anomaly. Parliament should not normally be asked to consider emergency legislation to overturn a High Court judgment when there is a pending appeal on the very issue which is before the highest court in the land. That should not happen unless every effort has been made to persuade the Supreme Court to hear an even more urgent appeal.

There is simply no precedent that I am aware of, and understandably so, for what we are doing today—reversing a judgment of the High Court with retrospective effect on the basis that we are satisfied that we are restoring a status quo, even though a Supreme Court hearing is pending and no application has been made for it to hear the matter more speedily.

I have four questions for the Minister. First, is she aware of any previous occasion when emergency legislation has been brought forward to repeal the effect of a High Court decision without first appealing to the Appellate Committee, now the Supreme Court, and asking that court to hear the matter with considerable expedition? Secondly, can she explain why, before coming to Parliament, the Secretary of State apparently did not ask the Attorney-General to apply to the Supreme Court to hear this appeal with considerable expedition so that it could it take place early in July and so that, if it were dismissed, we would still have time if necessary to consider emergency legislation? Thirdly, what steps has the Secretary of State now taken to ensure that all police authorities—indeed, all other public authorities—know that if the High Court gives a judgment on a matter of public interest which causes general concern it is vital that it is communicated to central government without delay so that steps can urgently be taken, if appropriate, to ensure that an appeal is heard with great expedition? I ask that question—I do not attribute blame—because there appears to have been considerable delays in this case in communicating concerns from Greater Manchester through to Whitehall.

My fourth and final question is this: what is going to happen if the Supreme Court hears this appeal on 25 July and if the appeal succeeds? Will the Government then bring forward in the autumn a short Bill—even shorter than this one—to repeal this emergency legislation as entirely unnecessary and to remove from the statute book a most unfortunate constitutional anomaly?

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[Baroness Browning]

My Lords, this has been a constructive debate. I welcome the support for the Bill from the opposition Front Bench. I am particularly grateful to the noble Lord, Lord Hunt of Kings Heath, for his remarks in his opening speech. He raised some issues that I shall touch on since they were also picked up by other Members of your Lordships’ House.

I shall reiterate something about the scope of the review of bail. This was raised not only by the noble Lord, Lord Hunt, but by the noble Lords, Lord Thomas of Gresford, Lord Clinton-Davis and Lord Dear, and the right reverend Prelate the Bishop of Chester. When we look at pre-charge bail later this year, it will be to consider the issues raised today, including the overall time limit. However, we will need to ground that review in evidence. At the moment, much of what we have heard is anecdotal. Therefore, any and all input to that review in advance of its terms of reference being drawn up will be welcome. I can tell your Lordships’ House and the wider community today that, further to the point raised by the noble Lord, Lord Hunt, about members of the public, there is a wide community of interest in this whole area. We would welcome, even before the autumn, any written submissions that will help us to set the terms of reference for that review, which will be wide and far-reaching. I hope it is of help to the House to know that.

I was asked about what legislation might follow. I say to the noble Lord, Lord Rosser, that it is a bit premature for me to identify any legislation that may come from the review. There might well be something, but until we see the terms of reference, have gathered that information and can see how to take the matter forward, it would be premature for me to say today what legislation might be needed.

A lot has been said about the Home Office and timeframe involved by several noble Lords, including the noble Lords, Lord Hunt of Kings Heath and Lord Pannick. I hope the House will bear with me but it might be helpful, since a lot of attention has been paid to this, if I read out for the record of the House the situation as regards the timeline. To set that in context, the wider consequences of the ruling could not be considered until the judge issued his written ruling, setting out the reasons for his decision. That judgment was issued on Friday 17 June. Most importantly, even at that stage, its wider consequences were not readily apparent. The judge himself reiterated his belief that the consequences would not be as severe as might be feared in impeding police investigations in the vast majority of cases. It was only as the complex ruling was examined early the following week by ACPO, the CPS and Home Office officials that the full consequences became apparent. However, I will, for the record of the House, read out the points in this whole process and those at which the Home Office—both officials and Ministers—was involved.

[Lord Pannick]

Can the noble Baroness explain why the Home Office was unable to understand the implications and importance of this decision on 17 June, when Professor Michael Zander was able to publish an article on this subject on 18 June and must, therefore, have understood the implications some time before that?

[Baroness Browning]

If the noble Lord will bear with me, I shall begin at the beginning and work my way through the timeline. Because we have had such a short debate, it is very important to put this on the record so that noble Lords have the full information. I will read it slowly because a lot of dates are involved.

On 5 April 2011, the district judge refused the Greater Manchester Police’s application for an extension to a warrant of further detention in the Hookway case. On 19 May, in a judicial review, Mr Justice McCombe, sitting alone at the Divisional Court in Manchester, upheld the district judge’s ruling in an oral judgment. I should point out that he sat alone because an early hearing was requested, but only one judge was available to sit; so the request was made—a point referred to by the noble Lord, Lord Rosser. On 25 May, the Greater Manchester Police sought initial views from Ann Whyte QC, who stated that the judgment may relate only to specific cases or warrants of further detention. Yet again, the legal advice was that this might have quite a discrete interpretation in terms of its wider implementation. The following day, 26 May, the Greater Manchester Police invited Home Office officials to become an interested party in an effort to seek leave to appeal to the Supreme Court and forwarded papers for consideration. The written judgment was not of course available at that point—26 May.

As I am reading this, I realise that it is all right for me—I have a piece of paper in front of me. For the purposes of clarity, when I have read this into the record I will also place it in the Library of the House.

On 17 June, the Greater Manchester Police, as we have heard, received the written judgment from the High Court and forwarded a copy to the Home Office on that day. That was a Friday. On Monday 20 June, the Greater Manchester Police and Home Office officials studied the written judgment, and the broad scope of the problems presented by the judgment first started to become apparent. Until that point, there had been some consideration—not only because of the QC’s opinion but because of the wording of the judge in his oral judgment—that this matter was not going to be as far reaching as it has subsequently proved.

It was on 20 June that the GMP and Home Office officials started to consider the written judgment. The next day, 21 June, the GMP invited ACPO representatives and the Home Office officials to meet to discuss the implications. Home Office officials agreed with ACPO to convene an urgent meeting to discuss the implications, which took place the following day. ACPO, the CPS and the Home Office officials met at the CPS’s headquarters. The full magnitude of potential difficulties then became quite apparent. The following day—we are talking about one day following the other—ACPO alerted the CPS chief executive, and ACPO issued notification of judgment to all chief constables. On 24 June, the ACPO lead met with the CPS director-general, and Home Office Ministers were informed at that point. ACPO commissioned advice from Clare Montgomery QC, and ACPO issued interim guidance to all chief constables. That was a Friday.

The following Monday, 27 June, Clare Montgomery QC’s advice was received in conference by ACPO, the CPS and Home Office officials. ACPO issued further guidance to all chief constables. ACPO commissioned forces to provide real-life examples of the impact of the ruling to support the case for urgent legislation. On 29 June, ACPO commissioned further legal advice from Steven Kovats QC. The following day, ACPO received that advice from the barrister and presented its case for urgent legislation to Home Office Ministers. On the same day, the Minister for Policing and Criminal Justice made an Oral Statement to the House of Commons on the need for urgent legislation. To pray in aid the words of ACPO lead Jim Barker-McCardle:

“It was only when ACPO received the written judgment on 17 June, and a number of senior people were able to spend some significant time considering the issue, that the seriousness of this became apparent. As the ACPO lead on this issue, I was not going to advise Ministers that the police service needed, in exceptional circumstances, fast-track legislation until I had satisfied myself first that the legislation was necessary and that the police service could not operate effectively in light of this judgment, beyond the very short term”.

I hope that that is helpful to the House and I am sorry if it is lengthy and detailed.

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[Baroness Browning]

My Lords, I do not doubt that for one moment. I shall cite him as often as possible on behalf of the Home Office.

I turn to the noble Lord, Lord Pannick, who talked about there being no precedent for the fast-track legislation in front of us. There is a precedent for this. A High Court judgment in July 2002 in the case of Hwez and Khadir held that the practice of granting temporary release, subject to restrictions, to people detained under the Immigration Acts was unlawful. The Government legislated to overturn that judgment in Section 67 of the Nationality, Immigration and Asylum Act 2002. Subsection (3) provides:

“This section shall be treated as always having had effect”.

The purpose was to avoid a situation where people subject to immigration controls who do not have leave to remain but who cannot lawfully be detained were left at large without there being any way of keeping track of them. Retrospection avoided the need to reassess the cases of persons on temporary admission on an individual basis.

As a member of the Constitution Committee, the noble Lord, Lord Pannick, has raised issues that replicate some of those that the Constitution Committee raised. I notice that the Constitution Committee may return to the issue after the Bill is enacted and the Supreme Court has heard the appeal by Greater Manchester Police. We will, naturally, consider carefully any further report that comes forward from the committee.

The noble Lord also asked what steps are now taken to ensure that police and public authorities report judgments to central government as soon as possible. There is an assumption there that the Greater Manchester Police should have acted quicker in alerting the Home Office to that judgment. As I pointed out in explaining the timeframe, we were aware and officials were engaged, but under a set of circumstances that was perhaps not quite clear to the House under the legal advice at the time. I do not disagree with the principle of what the noble Lord said. Timeliness is very important; lessons can always be learnt. We need to look forward to see things coming over the hill and not just wait to see what happens, when it is too late. That is my understanding of his question. I hope that I have satisfied him by outlining the timeline, but the general principle of what he asked, which is about the timeliness of information-sharing between agencies and authorities, is important, especially in issues as serious as this. I take his point; I know that, in the Home Office, we will endeavour to ensure that it is not overlooked.

On the question of the Supreme Court, although Mr Justice McCombe gave his judgment orally in May and certified the point of law, it was not possible for police counsel to prepare the appeal papers until the written judgment available on 17 June. As I have explained, an early hearing was requested but 25 July was allocated by the Supreme Court. An early date having been allocated, neither the GMP nor the Home Office believed that there was any prospect of an even earlier date being allocated.

The noble Lord also asked why the Secretary of State did not ask the Attorney-General to hear the case earlier in the public interest. The Secretary of State was made aware that the GMP was appealing to the Supreme Court for an expedited hearing. Subsequently the police also requested that the court stay the effect of the Hookway judgment. The court gave an expedited hearing date of 25 July, which, as I have said, is earlier than the original date. The Home Secretary felt there was no reason to think that government intervention would make that hearing even earlier. That is the case and I do not think that I can add any more to that. Clearly the Home Secretary did not feel it appropriate to approach the Attorney-General because a concession had already been given with the date agreed for the hearing.

[Lord Pannick]

The noble Baroness is being very patient indeed. We do not have a Committee stage on this Bill, so I hope she will excuse me if I press her slightly on this. Does she agree in principle that it is highly desirable, before emergency legislation is brought before Parliament, that every step is taken to try to ensure that the Supreme Court is asked to hear a case with very considerable expedition so as to avoid emergency legislation if at all possible?

[Baroness Browning]

I certainly do not disagree with the noble Lord on the general principle, and I will take his point back with me.