Immigration Bill

Debate between Lord Pannick and Lord Lester of Herne Hill

Monday 12th May 2014 Lords Chamber

[Lord Pannick (CB)]

My Lords, I am grateful to the Minister, Lord Taylor, to the Immigration Minister, James Brokenshire, and to the Bill team, who have devoted an enormous amount of time to this difficult issue and have held meetings with noble Lords who are concerned about it. For reasons that I will seek to explain, I think that the Government have made a very substantial concession on this issue in Amendment 18A, following the success of the amendment that I moved on Report.

Before briefly explaining the reasons for taking that view, perhaps I may mention that the original unacceptable clause—it was unacceptable—has been improved only because of a coalition, if that is not now an unacceptable political term, of the Opposition, led by the noble Baroness, Lady Smith of Basildon, who has worked tirelessly and skilfully on this issue throughout the passage of the Bill through this House, with considerable support from the Cross Benches and a very substantial Liberal Democrat rebellion on Report. I would add that there was support from the noble and learned Lord, Lord Howe of Aberavon, who also voted for the amendment. As a result of that voting decision, the new paragraph added in the House of Commons very substantially reduces the risk of leaving an individual stateless, although I recognise that such an event is still possible if the Secretary of State’s assessment, although reasonable, turns out to be inaccurate for whatever reason.

I have written to the Minister giving him notice of a number of assurances that I seek and which I consider are important to the understanding of the protections which are contained in the new paragraph. The first is this. I understand that the reasonableness of the Secretary of State’s conclusion that another nationality is open to the individual will be open to challenge in the Special Immigration Appeals Commission, and that SIAC will have the power to determine whether the Secretary of State does have reasonable grounds for her belief that the individual is able to become a national of another country. I understand from the Minister’s opening remarks that he agrees with that.

The second assurance I seek is this. Does the Minister agree that the material which is relevant to the Secretary of State’s decision on this point—that is, the ability to acquire another nationality—would be very unlikely to be secret? The material would be provided to the applicant’s lawyers so that it could be fully debated in any appeal to SIAC. I would be grateful if he could confirm that.

Thirdly, am I correct in my understanding that the new provision means that the Secretary of State has no power to take away British citizenship if the matter depends on a discretionary judgment by the foreign state? I think that the words in the new paragraph, “able to become”, must mean that the matter is in the hands of the individual, who needs only to apply to the foreign state, pay the relevant fee, provide the relevant documents and show their entitlement. The paragraph does not say “able to apply”. There is good reason to interpret this provision narrowly: namely, to prevent deprivation of British citizenship where it would leave people in limbo, with the risk of statelessness if the foreign country decides not to exercise any discretion in favour of the applicant. I therefore think that this provision means that at the time of deprivation of British citizenship, the individual must have a right to citizenship under the law of the foreign country. Does the Minister agree?

I seek reassurance on a fourth point. I think that the word “able”, which is the word in the new paragraph, must mean that there is no practical impediment to obtaining the foreign citizenship. For example, if there is reason to think that the foreign state will not apply its own laws, or will not do so within a reasonable time, the Secretary of State simply could not remove British citizenship. Does the Minister agree?

Fifthly, the word “able”, as well as general principles of public law must mean that the Secretary of State could not exercise this new power to take away British citizenship where, although the person is entitled to acquire the foreign citizenship, there is good reason for their being unwilling to do so. An obvious example is where the individual is a member of a group that is persecuted in the country concerned. Does the Minister agree that it would be wholly wrong and unlawful for the Secretary of State, if she accepts that those are the facts, nevertheless to go ahead and deprive that person of British citizenship?

Sixthly and finally, I think that the word “able” and the general requirement that the Minister must exercise her power in a reasonable manner must mean that the courts would apply a “reasonable link” test. By that, I mean that the clause could not be applied by reference to an individual’s rights to acquire citizenship in a country with which he or she has no close link other than an entitlement to nationality. For example, surely the Secretary of State could not rely on the entitlement of a Jewish man or woman to citizenship of the state of Israel under the law of return if the individual has no other link with the state of Israel; or rely on a wife’s right to acquire the citizenship of her husband in a country that she has never visited. I have not thought up these examples. I take them from the judgment of Lord Wilson for the Supreme Court in the Al-Jedda case last October, at paragraph 23. Therefore, the sixth question is: does the Minister agree in principle that there must be a “reasonable link” test implicit in this paragraph, so that the clause could not be used in circumstances that would, in the absence of a reasonable link, be wholly unreasonable?

On the basis of my understanding of this clause, this is a substantial and welcome concession by the Government. I hope that the Minister can reassure the House that my views are consistent with the Government’s interpretation, because it is what the Minister says that the courts may look at in future.

[Lord Lester of Herne Hill (LD)]

My Lords, I am a member of the Joint Committee on Human Rights and I should declare an interest because, like the noble Lord, Lord Pannick, I am a member of Blackstone Chambers, the same chambers as Professor Goodwin-Gill. As the House will understand, barristers are not like solicitors: we are not in a firm and are perfectly capable of taking completely different views from some of our colleagues. I have of course read Guy Goodwin-Gill’s opinion and his supplementary opinions but I do not think that they focus on the particular issues, practical and otherwise, with which we are concerned in this debate.

As the noble Lord, Lord Pannick, indicated, the Joint Committee on Human Rights welcomes the concession that has been made. I was one of the rebels—in the words of the noble Lord, Lord Pannick—and am personally satisfied, for the reasons that the noble Lord gave, that the concessions obtained in the other House ought to be acceptable and are in accordance both with international law and with the principles of our own constitutional system of government and law. However, I also agree with the noble Lord, Lord Pannick, that the questions that he has raised are the right ones, and my support for the Government’s position is dependent on satisfactory assurances being given. It is very important that they are given, because one of the advantages of the Pepper v Hart doctrine is that what is said by the Minister in reply will give guidance about how this important provision is to be interpreted.

I very much welcome the shift that has occurred and the fact that it has occurred because of pressure from across the whole House and not simply from one party. I do not agree with the position now being taken by Her Majesty’s Opposition—unless it is a probing position. If they were to press their difference of opinion to a vote, I would support the Government.

Anti-social Behaviour, Crime and Policing Bill

Debate between Lord Pannick and Lord Lester of Herne Hill

Monday 20th January 2014 Lords Chamber

[Lord Pannick (CB)]

My Lords, Amendments 93A to 93D are in my name and the names of the noble Lord, Lord Lester of Herne Hill, the noble Baroness, Lady Kennedy of The Shaws, and the noble and learned Lord, Lord Hope of Craighead. They concern the power to detain people at ports and airports and the power to copy and retain their personal electronic data, and propose that these powers should be exercisable only if the officer reasonably suspects that the person concerned is involved or has been involved in acts of terrorism. Your Lordships will know that the application of the existing powers is currently the subject of litigation in the David Miranda case concerning the detention of the partner of a journalist on the Guardian newspaper, but I do not want to address the circumstances of that case. I want to focus on the principles.

I have no quarrel with the Bill recognising that the power to stop, question and search at a port or airport should be exercisable whether or not there is any reasonable suspicion. However, I believe that the more intrusive powers of detention of persons and retention of their electronic data must be subject to greater safeguards. The Joint Committee on Human Rights has so recommended in its very helpful reports, most recently in its ninth report, published on 6 January. The Terrorism Act 2000, which Schedule 8 to this Bill would amend, allows for detention without any need for the officer to have any suspicion, reasonable or otherwise. The Bill would allow for detention for questioning for up to six hours—a very substantial interference, on any view, with individual liberty.

The independent reviewer of terrorism legislation, Mr David Anderson QC, has stated that there should be greater protection for individuals before they are detained or their electronic data are copied. In his evidence to the Joint Committee, at paragraph 28 of the ninth report, Mr Anderson said:

“It is hard to think of any other circumstances in which such a strong power may be exercised on a no-suspicion basis”.

Indeed, the Joint Committee noted that the Government were unable to give any other examples of such intrusive powers being exercisable without a requirement of some kind for suspicion.

Mr Anderson concluded that the threshold should be subjective suspicion on the part of a senior officer. The Government have not brought forward an amendment to introduce even that limited test, but, in any event, I do not think that such a control would be adequate in the context of the detention of persons and the copying and retention of personal electronic data. As the Joint Committee concluded, a subjective suspicion threshold is no safeguard whatever. Simply to require that an officer in fact suspects provides no independent scrutiny of the officer’s reasoning. The development of administrative law over the past 40 years confirms that subjectively worded powers are simply incompatible with effective legal control.

It is true that Mr Anderson was not persuaded that an objective test of reasonable suspicion was appropriate in this context. Mr Anderson’s concern is that this would impose too great an interference with policing powers, especially having regard to the difficulty in identifying wrongdoers and the appalling devastation that terrorists can cause. Despite the genuine respect which I have for Mr Anderson, I think his conclusions on this subject are wrong. The concerns to which Mr Anderson rightly draws attention—the difficulties of detection and appalling consequences of failing to identify wrongdoers—are well understood by the courts. Such factors would inevitably and properly be given great weight by the courts when deciding whether there was reasonable suspicion to justify the detention.

The noble and learned Lord, Lord Hope of Craighead, spoke for the Appellate Committee of this House in addressing what a reasonable suspicion test means in the case of O’Hara v the Chief Constable of the RUC, 1997 Appeal Cases at 286. That was a case concerned with the police power to arrest a person who the officer has reasonable grounds for suspecting to be a terrorist. The noble and learned Lord, Lord Hope, emphasised that such a test required the court only to assess the information in the mind of the arresting officer at the time, whether based on his own observations or what he had been told by others, and whether or not the information he had in his mind at the time later turned out to be false.

If it is truly the case that the detention is not reasonable on the basis of what was known to the officer at the time of the detention, having regard to the difficulties in identifying terrorism and the appalling consequences of letting a terrorist go through, then detention should simply not occur.

When this matter was discussed in Committee, the noble Baroness, Lady Smith of Basildon, speaking from the Opposition Front Bench, referred to the difficulty in finding an appropriate balance in this context. I recognise the difficulty, but the House needs to confront it. Without a reasonable suspicion test the powers conferred by the Bill involve no balance at all. The powers provide inadequate protection for the citizen, inadequate encouragement to officers to maintain high standards and inadequate assurance to the public to promote the support on which effective policing depends, especially when we all know that these powers are used against black and ethnic minority individuals to a disproportionate extent compared with their numbers in the population.

[Lord Lester of Herne Hill (LD)]

My Lords, when I was young at the Bar, there was a High Court judge who used to make a habit when he was giving judgment of simply saying, “I agree”. Having heard the noble Lord, Lord Pannick, I am tempted just to say, “I agree”. However, I wish to add a few points which he has not made and which it may be appropriate for me to make at this stage.

First, perhaps I may record, as a member of the Joint Committee on Human Rights, our misfortune at having lost the noble Lord, Lord Faulks, as a recent powerful and distinguished member, and the good fortune of the Government in having him—now in a sedentary position, unfortunately—on the Front Bench.

Secondly, the Joint Committee on Human Rights recorded in its earlier report its welcome of the government amendments that the Minister has described. I simply echo our appreciation of the amendments that are before us now.

Thirdly, I do not wish to say anything about the pending Miranda case but I do not see that its outcome will in any way affect the Government’s decision on whether to accept this amendment as it is not the function of the court in that case to decide on a future scheme that better protects liberty.

Fourthly, there is another case pending in the European Court of Human Rights—the case of Malik—to which the Joint Committee referred in paragraph 108 of its fourth report. What we are now saying today will be read by the Strasbourg court in disposing of that case. One of the reasons I am adding to the speech of the noble Lord, Lord Pannick, is that I hope that the way in which the Government and the Official Opposition reply to this will be helpful to the Strasbourg court.

In the Malik case, there is a root and branch attack on the compatibility of the schedule with the European Convention on Human Rights. The Joint Committee on Human Rights has said that it has little doubt that that challenge will fail. There is nothing inherently incompatible between the schedule and the European Convention on Human Rights. However, as many lawyers will remember, there have been a whole series of cases in Strasbourg with names such as Klass against Germany and Malone against the United Kingdom where the Strasbourg court has said that it is necessary that there are adequate safeguards against the abuse of powers, including police powers. This amendment addresses the need for more adequate safeguards.

My view is the same as that of the noble Lord, Lord Pannick—indeed, I look forward to the speeches of the noble Baroness, Lady Kennedy, and the noble and learned Lord, Lord Hope of Craighead—and probably all of us agree that there is a need for more effective safeguards against the possibility of abuse. An objective, reasonable standard seems to be the minimum that is now required. The Joint Committee has considered this twice—once in its original report and once in its most recent report—and came to the firm view that these safeguards are necessary. If the Government were to reject that opinion today, all I can say is that if I were in Strasbourg arguing for the Crown I would find myself in some difficulty because I am convinced that the Strasbourg court will scrutinise the reasons the Minister will give in deciding whether there are adequate safeguards. In other words, I think Mr Malik will lose but it would be a pyrrhic victory for the Government unless they were able to convince that court that there were adequate safeguards. I would rather avoid that today by putting the adequate safeguards into the Bill instead of waiting for another defeat in Strasbourg, in effect, and having to do it on a further occasion.

Marriage (Same Sex Couples) Bill

Debate between Lord Pannick and Lord Lester of Herne Hill

Wednesday 10th July 2013 Lords Chamber

[Lord Lester of Herne Hill]

My Lords, some of the amendments moved in the course of our debates have been eccentric. However, respectfully, I should say that Amendment 85 is among the most eccentric, not least because of its very distinguished authors—a former Cabinet Secretary, a Lord Chancellor and my noble friend Lady Williams of Crosby, whose deeply held religious convictions as a Catholic I fully respect.

Leaving aside its extraordinary length and detail, Amendment 85 is moved in the face of the overwhelming and decisive decisions made by the House on Monday to reject similar attempts to classify and separate opposite-sex and same-sex marriages. In paragraph (a), the amendment declares that,

“there shall no difference or distinction be made between lawful marriage of same sex couples and lawful marriage between a man and a woman, save as provided for in this Act”.

If the amendment stopped there, it would be completely unobjectionable although also completely unnecessary, but it does not stop there. It continues by making an exception,

“as required to give effect to any difference or distinction which is made necessary by reason of physiological or biological differences of gender or consequences thereof”.

It is probably my fault, but I do not understand what that is meant to mean. Most men and most women are biologically different and sexual intercourse between a man and woman, a man and a man and a woman and a woman may reflect those differences of biology and anatomy, but how do those differences require future or existing law regulating or relating to marriage to treat traditional, conjugal and new consensual marriage differently? We are beyond the watershed for children, and I shall be grateful for an explanation of what this has to do with the law rather than the Kama Sutra.

Paragraph (b) seeks to separate the two forms of marriage using about 100 words instead of a bracket. We have already firmly rejected that attempt; I respectfully ask what the point is of rehearsing the arguments again and again.

Paragraph (c) is unnecessary because it goes, or should go, without saying, that existing legislation will continue in effect in relation to opposite-sex marriages except as amended by the Bill. As to paragraph (d), given the vague obscurity of the earlier parts of the amendment, its meaning and effect would puzzle Henry VIII and his Lord Chancellor as well as the current holder of that high office. If the noble Lord tests the opinion of the House, I hope that the amendment will be rejected.

[Lord Pannick]

My Lords, I agree with the noble Lord, Lord Lester of Herne Hill, though possibly not in relation to the Kama Sutra. The point being made by the noble Lord, Lord Armstrong of Ilminster, as I understood it, was that provision should be made in this Bill to confer power to address problems that may arise in consequence of this Bill when enacted. Of course, Clause 15(2) already does that. It says:

“The Secretary of State or Lord Chancellor may, by order, make such provision as the Secretary of State or Lord Chancellor considers appropriate in consequence of this Act”.

For the avoidance of doubt, Clause 15(3) states that any such provision that may be made,

“includes provision amending UK legislation”.

That would seem to me amply to address any concerns.

Crime and Courts Bill [HL]

Debate between Lord Pannick and Lord Lester of Herne Hill

Monday 10th December 2012 Lords Chamber

[Lord Lester of Herne Hill]

My Lords, I am not a criminal lawyer and have none of the experience that the noble Baroness, Lady Kennedy of The Shaws, has, but I sat as a criminal judge—grotesque though that may seem—in the days when I was a recorder. I cannot claim much greater experience than that, but I support the amendment as a member of the Joint Committee on Human Rights.

As the noble Baroness, Lady Kennedy, has said, this amendment was drafted by the committee so it is a JCHR amendment, and our report deals with our reasons in detail. In paragraph 60, our conclusion says:

“We do not see the justification for the width of the order-making power in clause 23(1) of the Bill, which, as it stands, authorises the filming and broadcasting of witnesses, parties, crime victims, jurors and defendants in court proceedings. We urge a much more cautious approach. Before any extension of this power we recommend that the Government conduct a much more comprehensive public consultation, carry out a more detailed impact assessment in the light of that consultation and conduct a review of the operation of the power after an elapse of years. In the meantime, we recommend that the Bill be amended to confine the scope of the power to the filming and broadcasting of judges and advocates in appellate proceedings, as the Government currently intends”.

I am also cautiously conservative on this issue because I do not believe that criminal trials are best conducted in televised goldfish bowl.

[Lord Pannick]

My Lords, I do not share the concerns expressed by the two previous speakers. The broadcasting of court proceedings will enhance public understanding of our justice system, which in general works efficiently and fairly. There is also the possibility that allowing in the cameras may illuminate those areas of the law that are much in need of reform, a result that I would have thought law reformers as distinguished as the noble Baroness, Lady Kennedy of The Shaws, and the noble Lord, Lord Lester of Herne Hill, would welcome.

So what if broadcasters focus on sensational cases? That is what print journalists do and we do not exclude them from the courtroom. Amendment 113 would confine broadcasting to appellate proceedings but, if the Lord Chief Justice thinks it appropriate, why not allow the broadcasting of a judicial review application that raises issues of importance? Such applications normally involve no witness evidence and often raise issues of law of considerable constitutional importance. Of course there should be no broadcasting of the evidence of witnesses, and jurors’ faces should not be shown, but I cannot understand why there should be no possibility of the broadcasting of the judge’s sentencing remarks at the end of a criminal trial. There are many cases where, at the end of the criminal trial, the judge is speaking not only to the defendant or other persons in court but is seeking to communicate to the public at large. The judge should be assisted to do so.

The noble Baroness, Lady Kennedy of The Shaws, made what I respectfully submit was a quite extraordinary suggestion that judges need to be protected because their words may be misrepresented. She also suggested that judges need anonymity in the community at large. I doubt very much whether there are many judges—or, indeed, many noble Lords—who think that our judges need or deserve such protection.

In any event, Amendment 113 is entirely unnecessary because your Lordships will see that Clause 23 will not come into effect without the agreement of the Lord Chief Justice, who no doubt will carefully consider the details of any scheme to allow broadcasting of court proceedings. For the same reason, Amendments 113ZA and 113ZB in this group are also unnecessary in seeking to impose conditions on the broadcasting of court proceedings. I am content to proceed on the basis set out in Clause 23, that the broadcasting provision would come into force only,

“with the concurrence of the Lord Chief Justice”.

It would be far better to let him—or possibly, after next October, her—decide on the detail of the broadcasting scheme.

For the same reason, Amendment 120B, requiring a resolution from both Houses, is unnecessary. The noble Baroness, Lady Kennedy of The Shaws, and the noble Lord, Lord Lester of Herne Hill—for both of whom I have the highest regard—are the 21st century equivalents of the 18th century Scottish judge Lord Eskgrove. When a court reporter wrote down the terms of one of his judgments being delivered in court, Lord Eskgrove complained:

“The fellow takes down my very words”.

--- Later in debate ---

[Lord Lester of Herne Hill]

Would the noble Lord address the points raised by the Joint Committee on Human Rights, rather than referring to me as an 18th century gentleman?

[Lord Pannick]

My Lords, I have made such points as I think may assist the House in answer to the arguments brought forward in this debate and the arguments presented by the Joint Committee.

--- Later in debate ---

[Lord Pannick]

My Lords, this amendment seeks to abolish the crime of scandalising the judiciary in England and Wales. I am delighted that the Minister has added his name to this amendment. The amendment is also signed by the noble Lord, Lord Lester of Herne Hill, who has played a leading role in arguing for reform of this area of the law. The amendment is also in the names of the noble and learned Lord, Lord Carswell—a former Lord Chief Justice of Northern Ireland—and the noble Lord, Lord Bew.

I can explain the reasons for this amendment very briefly. It is no longer necessary to maintain as part of our law of contempt of court a criminal offence of insulting judges by statements or publications out of court. The judiciary has no need for such protection. As the noble and learned Lord, Lord Carswell, explained in Committee, the wise judge—and he, if I may say so, was a very wise judge—normally ignores insults out of court. The noble and learned Lord, Lord Brown of Eaton-under-Heywood, made a similar point in a case he decided, as he may recollect. Judges, of course, are as entitled as anyone else to bring proceedings for libel, and some have done so.

The law of scandalising the judiciary could have been left in the moribund state in which it has rested for many years. However, the Attorney-General for Northern Ireland unwisely chose earlier this year to seek to breathe life into it by bringing a prosecution, later dropped, against Peter Hain MP for some critical comments he had made in his autobiography concerning a Northern Ireland judge. That prosecution had two main consequences. First, it substantially increased the sales of Mr Hain’s book and, secondly, it led to this amendment.

When we debated this subject in Committee on 2 July, the Minister gave a cautious welcome to the amendment but said, very properly, that the Government wished to consult on the matter. As a result of the debate in this House, the Law Commission expedited the publication of a consultation paper on 10 August in which it proposed that the offence of scandalising the judiciary should indeed be abolished.

I emphasise that the amendment will not affect other aspects of the law of contempt of court and in particular the powers of the judge to deal with any disruptions during court proceedings. I also emphasise that the amendment is not designed to encourage criticism of the judiciary. Much of the criticism to which judges are subjected is ill informed and unsubstantiated. However, even where criticism is unjustified, it should not be a criminal offence.

The amendment will not affect the law in Northern Ireland or Scotland, in the latter of which the offence is known as “murmuring judges”. I understand that in Northern Ireland more consultation is required. It is ironic that the impetus for this amendment came from the Peter Hain case in Northern Ireland, and now the anachronistic law that led to that case is to be abolished in England and Wales but not in Northern Ireland. I hope that the Minister can give us an indication of when consultations with Northern Ireland will be completed and a decision reached.

Meanwhile, I am delighted by the historic decision which I hope that this House will take tonight to approve an amendment abolishing the offence of scandalising the judiciary in England and Wales. As Justice Albie Sachs said on this subject in a judgment in the Constitutional Court of South Africa in 2001, respect for the courts will be all the stronger,

“to the degree that it is earned, rather than to the extent that it is commanded”.

I beg to move.

[Lord Lester of Herne Hill]

My Lords—

Justice and Security Bill [HL]

Debate between Lord Pannick and Lord Lester of Herne Hill

Monday 23rd July 2012 Lords Chamber

[Lord Pannick]

My Lords, I share the concerns that have led to these amendments. The views of the Committee and the other place on whether the Bill contains an adequate balance between justice and security will depend on the scope of the Bill and on the scope of the concept of relevant civil proceedings. The wider the scope of the Bill, the less willing Parliament will inevitably be to approve Part 2; and the wider the scope the more willing Parliament must be to include amendments that provide safeguards in respect of the closed procedures.

Given that we are debating this Bill on the basis of the current scope that it contains, it seems fundamentally wrong in principle to give the Secretary of State a power thereafter to expand the Bill’s scope in a manner that when that proposal comes before Parliament will prevent us proposing any amendments that would introduce necessary safeguards that Parliament might think are required in the light of the expanded scope of the Bill.

With the Committee’s permission, I shall return—I have checked the facts—to a matter raised by the noble Baroness, Lady Stowell, in her response to the previous group of amendments. She told the Committee, as I understood her, and as the noble and learned Lord, Lord Falconer of Thoroton, understood her, that the Government may envisage that an application for a closed material procedure may be made in secret, without notification to anyone. My understanding, which I have confirmed, is that under the old control order procedure and the existing TPIM procedure, the application for a closed hearing is always made in public. Indeed, it has to be made publicly because the whole point of the special advocate procedure is that the special advocate before the closed procedure starts can talk to the litigants concerned and obtain information from them.

Furthermore, once a judgment is given, there is always an open judgment, which always refers to the closed judgment—if there is a closed judgment—without of course disclosing the confidential material that is in the closed judgment.

Like the noble and learned Lord, Lord Falconer of Thoroton, I would be very grateful if there could be clarification as soon as possible as to whether it is really the Government’s intention, in relation to the closed material procedure, that applications could be made in secret, entirely differently from how the control order and TPIM regime works.

[Lord Lester of Herne Hill]

My Lords, I have a couple of extra concerns to add to what has already been said. The first is political. As I understand it, this Bill has been introduced on the express understanding of both parts of the coalition that coroners’ inquests would be excluded. I see my noble and learned friend nodding in agreement to that. However, the power that is included here would enable a future Secretary of State to take that away, either during the coalition Government or when the coalition ends. That would be a breach of faith, and we should not now be legislating in a way that makes that possible. It seems to me to be a condition of this Bill that under no circumstances is it to apply to coroners’ inquests, for all the reasons that the Joint Committee and everyone else put forward.

My second problem is that these are civil proceedings, as we are constantly being reminded, so they affect the civil rights and obligations of the parties to those proceedings. When we were enacting the Equality Bills, the question frequently arose as to whether it would be fair and reasonable for a Government to take a power to amend the exceptions to that legislation, which is civil, in order to affect the rights and freedoms of the individual. In introducing both the Equality Act 2006 and 2010, the previous Government took powers to amend, but only by means of removing exceptions, not by anything that would affect the fundamental balance of civil proceedings.

What troubles me is that if this Bill goes through without adequate safeguards of the kind we are pressing for, the use of the powers conferred to amend—to add tribunals by delegated legislation—will not be able to add further safeguards; the question will only be whether a new, further tribunal may be added. That will fundamentally affect, anyhow, the rights and liabilities of the parties to that tribunal.

To take the example in the employment field referred to by the noble Baroness, Lady Turner, one can add a whole new set of restrictions that would apply, for example, to civil litigation in the employment field. That is not something that any previous Government would have contemplated. These powers are not simply Henry VIII in analogy, but maybe a later generation of kings under the Stuarts.

Justice and Security Bill [HL]

Debate between Lord Pannick and Lord Lester of Herne Hill

Monday 23rd July 2012 Lords Chamber

[Lord Pannick]

My Lords, I have added my name to this amendment. Nobody who has listened to or read our debates on Part 2 of this Bill over the past few weeks could doubt the importance or difficulties of the issues that we have been considering. Parliament may well decide that it is necessary to include these provisions in Part 2 but they undoubtedly are a departure from the fundamental principles of the common law. There is no doubt that they have a considerable novelty. It is essential that Parliament keeps these procedures under close review. Indeed, how these provisions are operating in practice will be vital to the balance between justice and security, which the noble and learned Lord the Advocate-General for Scotland has repeatedly and correctly in my view emphasised is the primary concern. An obligation on the Secretary of State to bring these matters back to Parliament for an extension of these provisions after a year will focus the mind of the Secretary of State and officials. It will give this House and the other place an opportunity to look at what has happened in practice. I hope that we will also then have the advantage—and it will be a real advantage—of seeing a report from the much respected independent reviewer of terrorism legislation, Mr David Anderson, on how these provisions have been applied.

I hope that I am not out of order in saying that I would very much hope that noble Lords might have the opportunity to hear directly from Mr Anderson, as we always benefited and still benefit from hearing his equally respected predecessor, the noble Lord, Lord Carlile of Berriew. The noble and learned Lord the Advocate-General for Scotland might want to suggest to his right honourable friend the Prime Minister that it would be most helpful to noble Lords if Mr Anderson were able to express views in this House as a noble Lord and participate in our debates. Whether we hear from Mr Anderson directly or indirectly I strongly support the amendment.

[Lord Lester of Herne Hill]

I am not sure that David Anderson QC can be made a Peer with sufficient speed to meet the wish of the noble Lord, Lord Pannick, but I can tell the Committee that the Joint Committee on Human Rights has asked him to give further evidence and we are anticipating preparing a report in time for Report stage that will include his views. That part of the amendment may be met through the committee system in an ordinary way.

--- Later in debate ---

[Lord Lester of Herne Hill]

My Lords, the noble Lord, Lord Campbell of Alloway, once gave me some very wise advice. It was a kind of rebuke. He said, “Never make a serious point after the dinner hour”. I am sure that that was indeed wise advice, but I am going to make a serious point nevertheless.

The noble Lord, Lord Pannick, and I listened very carefully to the debate that took place on 11 July when the noble and learned Lord, Lord Wallace, indicated that he could not make a concession at that time about the principle of proportionality, but he would listen very carefully to what had been said by the noble and learned Lord, Lord Falconer of Thoroton, my noble friend Lord Thomas of Gresford and myself.

The principle of proportionality sounds foreign except to those who have had a proper classical education who will remember that the Greeks themselves and their philosophers developed the idea of the golden mean and a sense of proportion. That idea is rooted in our legal and political system and is as English as roast beef, Yorkshire pudding, and roast potatoes. It simply requires that the decision-taker should not use a sledgehammer to crack a nut.

Amendment 90 seeks to embody in the Bill principles which have to be taken into account by the Secretary of State and by the court in the way in which they interpret and apply the provisions of the Bill as a whole. It therefore requires that, in performing their functions under Part 2, the Minister and the court,

“must have regard, in particular … to the overriding objective of protecting the interests of justice and fairness, and … to the need to ensure that any interference with the principle of open justice is no more than is necessary to protect the interests of national security”.

Even though the Government may be unable to accept some of the other more prescriptive amendments, I very much hope that this amendment will find favour. I beg to move.

[Lord Pannick]

My Lords, I added my name to this amendment because, in light of the importance, the difficulty, the novelty, and the sensitivity of the issues that we have been debating, it is highly desirable that the Bill states on its face the objectives which the Secretary of State and the courts must seek to advance. The overriding objective of the courts is, indeed, to protect the interests of justice and fairness. That is what the Civil Procedure Rules state. Any interference with open justice must surely be confined to what is necessary, as the amendment says,

“to protect the interests of national security”.

Who could possibly object to that?

Justice and Security Bill [HL]

Debate between Lord Pannick and Lord Lester of Herne Hill

Tuesday 17th July 2012 Lords Chamber

[Lord Lester of Herne Hill]

My Lords, this amendment is perfectly understandable and very prescriptive. It might be to the benefit of the House if I explained that I asked the Government in a Question for Written Answer whether they would introduce measures to ensure that judgments made by courts and tribunals under the closed material procedures were made public when the reasons for maintaining their secrecy no longer obtained. This, of course, relates to a later amendment.

My noble friend Lord McNally gave a Written Answer on 10 July, which may make any comment unnecessary. He said:

“Closed judgments contain highly sensitive material. For this reason they are not suitable for publication by law reporting organisations which are not security cleared. Closed judgments are usually handed down in tandem with an open judgment, and most judges”—

I emphasise “most”—

“state in their open judgment that a closed judgment has also been handed down ... Judges will put as much of their reasoning into open as possible, including statements of legal principle that are most likely to have cross-case relevance. It is open to special advocates and counsel for the Government to make submissions about moving material from the closed judgment to the open judgment. If the court is persuaded that it would not harm the public interest to do so, then material will be moved to the open judgment”.—[Official Report, 10/7/12; col. WA243.]

It then refers to the code of practice under the Freedom of Information Act. I mention that Answer because it shows that an unsatisfactory situation will obtain with regard to these judgments. Whether this or a later amendment or some other approach is needed, I have no doubt that standards are needed so that we get common—in fact universal—practice as to what we can do to make sure that judgments whose secrecy has been lost over time or because of particular circumstances may be made public in accordance with the principle of open justice.

[Lord Pannick]

My Lords, I, too, support the amendment, and not just because in principle it is right that judgments should be closed for as limited a time as necessary. There is also a very real practical consideration that, despite what the noble Lord, Lord McNally, said in his Answer that the noble Lord, Lord Lester of Herne Hill, quoted, there have been examples of closed judgments that contained statements of principle that were not in open judgments or that contained statements relevant to other cases or potential cases. The difficulty is that those practising in this area who represent individual litigants do not have access to this body of jurisprudence. If we are to create this closed material procedure, we have to recognise that we are creating a body of case law that is not generally available. That is a very real problem for the rule of law. One way in which to address the problem is to minimise as far as we reasonably can the length of time for which a closed judgment is not generally available. For that reason, in addition to the reasons already given, I support the amendment.

Justice and Security Bill [HL]

Debate between Lord Pannick and Lord Lester of Herne Hill

Wednesday 11th July 2012 Lords Chamber

[Lord Lester of Herne Hill]

I did not understand it to impose that degree of rigidity. If it does, then I respectfully agree that some modification of the wording is necessary. I want to deal briefly with one or two other points.

The noble Lord, Lord Pannick, may want to say something himself about the Government’s response to the Constitution Committee’s report, which analysed the three flaws, as the committee saw it, in the existing scheme. I read and reread this government document and it gave me a headache because I simply did not understand what it was saying. It seems to be saying that there is very little difference between PII and a CMP, that there would be the same flexibility in a CMP as in PII, and that, having gone through a CMP, the judge can in any case go back to PII. It must be my fault but I simply do not understand what the Government’s settled position in that document really is. The Government say that the judge would have a number of important tools in a CMP to ensure that it was conducted fairly. They say that there is a similar level of flexibility to that available to the judge under PII. They say that it should be exceptional to use a CMP. All these points are certainly interesting but my basic point is on Wiley balancing. The noble and learned Lord, Lord Woolf, was responsible in his judgment in Wiley for articulating that Wiley balancing should be open to the judge first and that a CMP should be an exceptional procedure following it and that at all stages national security and other vital public interests should be preserved.

I have just one question for the Minister. Does he agree that there is no case in which an English or Scottish judge has breached national security or not shown the appropriate degree of deference to the executive branch of the security and intelligence services in his or her final adjudication? I ask that because I am very concerned that across the Atlantic there seems to have arisen a complete misunderstanding that our judges cannot be trusted with state secrets and national security. I do not know how that came about. My guess is that it arose in dialogue during the Binyam Mohamed case, especially at the Divisional Court level. However, it seems to me vital, as a matter of public record, that the Government make it absolutely clear that our judges can be trusted and have a fine record of trust of that kind.

[Lord Pannick]

My Lords, I have added my name to Amendments 39 and 40. I am very grateful to the noble Lord, Lord Faulks, for introducing the amendment. I recognise that there may well be a need in some exceptional cases for a CMP or closed material procedure, but it seems to me that this should be a last rather than a first resort. My answer to the question put by the noble Lord, Lord Carlile, is that PII certainly maintains secrecy just as effectively as a closed material procedure. If it did not, then it would not be a satisfactory alternative. The advantage of PII is that it does not enable the judge in determining the substance of the case—a point made by the noble Lord, Lord Thomas of Gresford—to rely on material that is seen by only one party and not by the other party. The evidence that is admitted is seen by both sides in the case. My answer to the question posed by the noble and learned Lord, Lord Falconer of Thoroton, is this. If, as a result of the PII—

--- Later in debate ---

[Lord Pannick]

We know that because there is absolutely no evidence of which I am aware of public authorities appealing against PII decisions and saying that it is unacceptable, because sensitive material or any other public information is going to be revealed by the judge.

However, there is a second answer to the noble Lord, which is that under a PII application, even if the public authorities take the view that the judge has balanced matters and decided to reveal that which is sensitive, the public authority has no obligation to reveal it. It can decide that it would rather lose the case than disclose this information. That is why we need a procedure for CMPs, because there may be cases where PII does not produce a satisfactory result for public authorities. I am prepared to accept this, not least because David Anderson QC, the independent reviewer, has concluded that there ought to be such a procedure. My point is that it ought to be a last resort, rather than a first resort. My fundamental objection—

[Lord Lester of Herne Hill]

The noble Lord, Lord Pannick, has much more experience than I have in the uses of PII. Subsection (5) of the proposed new clause lists the different matters which the judge should regard when making his decision. Am I right in thinking that these are matters to which the judge has regard to in a PII case? Are those the kind of considerations that the judge will look at carefully in order to tailor the needs of national security and justice?

[Lord Pannick]

The noble Lord is absolutely right. The purpose of the new clause before Clause 6, and the detail that is set out in Amendment 39, is that it is an attempt—with the very considerable assistance, as the noble Lord, Lord Faulks, said, of the legal advisers to the Joint Committee—to set out in statutory form the common law position. That is its purpose; but I emphasise that PII is not a procedure that requires disclosure. It is distinct, as the noble and learned Lord, Lord Lester, says, from the issues that we will be discussing on Norwich Pharmacal where the concern is that if the judge makes an order, there must be disclosure.

My fundamental objection to Clause 6, and the reason I support these amendments, is that under subsection (5) the Secretary of State, before he decides whether to make an application for a closed material procedure, must first consider whether to make a claim for PII. So the obligation is on the Minister to consider whether to apply for PII or not. That is all to the good. However, if a closed material procedure application is made by the Secretary of State—or indeed by anybody else—Clause 6(3) provides that,

“the court must ignore … the fact that that there would be no requirement to disclose if … the material were withheld on grounds of public interest immunity”.

As I understand Clause 6, the judge is obliged to ignore the possibility of PII. I take the view that, just as the Minister ought to consider whether PII provides a satisfactory means of resolving the conflict between security and fairness before he applies for a closed material procedure, equally, the judge should have to consider that.

--- Later in debate ---

[Lord Lester of Herne Hill]

I wonder whether this is helpful. In the case of Binyam Mohamed there was a parallel case in the district court of Columbia by another Guantanamo detainee facing a capital charge. This was a habeas corpus case and the question was whether Binyam Mohamed’s evidence, which had pointed to this man as an evil rogue, could be relied upon. The applicant in the habeas corpus case wished to show that Binyam Mohamed had been tortured, so the federal court had to decide that question. It was very much in the interests of the applicant for habeas corpus that that “closed”, secret material be placed before the court to exonerate him. In the end, Judge Kessler came to the conclusion, since it was not contested by the American Government, that he had been subjected to gross ill treatment and that this other man should be granted habeas corpus because Binyam Mohamed’s evidence was unreliable by being induced by torture. That is a real-life example in the context of habeas corpus in which it was in the interests of the applicant to rely upon that material.

[Lord Pannick]

As a matter of principle, the claimant may believe that the secret material would exonerate him. PII would prevent the secret material from being disclosed to him because it concerns security information, but he is confident that he has done nothing wrong—there is no reason why he should not be given naturalisation or some other benefit. He just wants the judge to be able to look at it. The claimant might prefer the judge looking at it without the claimant seeing it to the judge not seeing it at all.

Legal Aid, Sentencing and Punishment of Offenders Bill

Debate between Lord Pannick and Lord Lester of Herne Hill

Monday 23rd April 2012 Lords Chamber

[Lord Pannick]

The noble Lord, Lord Thomas of Gresford, again jumps the gun. This is the third point that was made in the other place, which I was coming to and will now address—

[Lord Lester of Herne Hill]

I hope I am not jumping the gun, but I do not understand from what the noble Lord has said so far why the principle of maintaining the rule of law, a duty which is imposed on the Lord Chancellor, and a duty to secure access to justice under the Human Rights Act do not themselves adequately state the general principles within which this Bill needs to be looked at.

[Lord Pannick]

The answer to the noble Lord, Lord Lester of Herne Hill, is that we are dealing with a Bill that specifically relates to legal aid. It is surely appropriate to include in a Bill relating to legal aid the purpose of legal aid—and to say so in uncontroversial terms. Nothing is more likely to lead to legal uncertainty—the concern that the noble Lord, Lord Thomas of Gresford, has—than that these matters should be left somehow to be implied, in the context of legal aid, by reference to the Human Rights Act. That would seem to me most unsatisfactory.

I turn to the third point: uncertainty. It was a point that the Minister emphasised this afternoon—uncertainty and, as he put it, the spectre of litigation. I find it difficult to understand this concern, given that the amendment makes it clear beyond doubt, in the plainest of language, that it is entirely a matter for the Lord Chancellor how much money to provide for legal aid purposes. The amendment makes it clear beyond doubt that this provision is subject to the detailed provisions in the Bill which specify what subjects are within scope.

In any event, this concern about litigation is a particularly unpersuasive argument in the present context. As I mentioned, the substance of this amendment has been part of legal aid legislation for many years. If lawyers were going to make mischief by reference to this type of wording, noble Lords will recognise that they would have done so by now.

Finally, the fourth point that has been mentioned by the Minister this afternoon is that the other place is, of course, the elected Chamber and that we should defer to its judgment. For my part, I recognise that there is, of course, force in this argument. Noble Lords will wish to reflect carefully on this amendment, as on all the other amendments before the House this afternoon, before asking the other place to think again.

I suggest to noble Lords, however, that this is an occasion—on this amendment certainly—when it is appropriate to ask the other place to think again. The amendment now before noble Lords addresses the concerns expressed by the Minister, Mr Djanogly, in the other place. There is simply no substance to the Government’s opposition to this amendment. It raises an issue of principle of considerable importance and it involves no financial cost whatever to the Government. I beg to move.

--- Later in debate ---

[Lord Pannick]

I entirely accept the Minister’s point that the Bill seeks to identify those subjects for which legal aid should be made available. But the Minister will recognise that, in the anxious debates that we have had through the progress of the Bill, we have considered a number of sensitive topics in respect of which the Minister’s argument has been that we would like to provide legal aid for this subject but, regrettably, we cannot do so because we do not have the money under the current financial stringency. The House has listened to that debate and accepted, with a heavy heart, that in relation to many of the subjects in respect of which legal aid has previously been made available it will regrettably no longer be made available. Having accepted that the Government must have their way for financial reasons on many of those very difficult areas, I believe that it is absolutely vital that we retain in this Bill a statement of the principle of why legal aid is made available so that when the economy improves—

[Lord Lester of Herne Hill]

My Lords—

[Lord Pannick]

I have given way to the noble Lord before. I anticipate that the House is anxious to move on. The House has heard the debate in relation to this matter. I say to the House that that part of the 27 minutes which the other place devoted—I am not giving way—

Public Bodies Bill [HL]

Debate between Lord Pannick and Lord Lester of Herne Hill

Tuesday 23rd November 2010 Lords Chamber

[Lord Pannick]

After a two-hour debate on matters of fundamental importance, does the noble Lord accept that it would be of value for the Committee’s opinion to be tested so that the Minister—whose open attitude is much admired by all noble Lords—and the Government generally are left in no doubt of the Committee’s views on the need for further essential safeguards to be written into the Bill?

[Lord Lester of Herne Hill]

I am grateful to the noble Lord for asking a question which I am trying to answer as I speak. The Minister will have heard everyone around the Committee. I am sure that some of us recall what was once said by Archbishop William Temple in a famous lecture: “Whenever I travel on the Underground I always intend to buy a ticket, but the fact that there is a ticket collector at the other end just clinches it”. The Minister has heard the voice of a united Committee, and I am going to be pusillanimous and much criticised for my moderation in not dividing it. However, I do so as a friend and supporter of the coalition. Unless we get the amendments that have been asked for on all sides of the Committee, this Committee will act as the ticket collector rather than myself. If we are trying to achieve a constitutional Bill that we can pass, the right way to do that is not by flexing our muscles on Amendment 1 and proceeding on that basis.

Terrorist Asset-Freezing etc. Bill [HL]

Debate between Lord Pannick and Lord Lester of Herne Hill

Monday 25th October 2010 Lords Chamber

[Lord Pannick]

My Lords, Amendments 23 and 24 are designed to give statutory effect, in the asset-freezing context, to the principle established by the Appellate Committee of this House in the case of AF (No. 3). I declare an interest—although it is not really an interest—in that I was counsel for the claimant in that case.

The principle stated by the Appellate Committee is that where a person is the subject of a preventive measure such as a control order, which severely restricts his basic liberties, that person must be given sufficient information about the allegations against him to enable him to give effective instructions to his lawyers or the special advocates to enable them to respond. The demands of national security, important though they are, cannot outweigh the basic right to know the case against you and to have the opportunity to answer it. The reason for that, of course, is that a right of appeal to a court is of very limited value if the subject of the order does not know the essence of the case against him.

I am surprised that the reply from the Minister, the noble Lord, Lord Sassoon, to the chairman of the Joint Committee on Human Rights disputes that the AF principles apply in the context of asset freezing. I am surprised for three reasons—first, because a recent judgment of the European Court of Justice in the Kadi case specifically applied the same principles to asset freezing. Secondly, I am surprised because a judgment of the Court of Appeal earlier this year in the Bank Mellat case applied the AF principle to a Treasury decision to prohibit the financial sector in this country from entering into business with the claimant—an Iranian bank. There is very little distinction in principle between asset freezing and the financial restriction proceedings that were an issue in the Bank Mellat case. The third reason why I am surprised that the Government do not accept that the AF principles apply in this context is that the Supreme Court judgment in Ahmed, which led to this Bill, accepted that asset freezing is a very grave interference with a person’s rights, comparable to a control order.

Amendment 23 would amend the relevant provision of the Counter-Terrorism Act 2008 so as to require rules of court to ensure that the court’s otherwise absolute duty of non-disclosure in asset-freezing proceedings, where national security so requires, is expressly qualified by a positive duty to ensure sufficient disclosure to protect the right to a fair hearing. Amendment 24 is consequential.

These amendments, like many amendments that your Lordships have debated today, are required to avoid uncertainty in courts, delay and expense in the implementation of legal rights. The House may be aware that 27 special advocates pointed out in their recent written evidence to the Home Office counterterrorism review that there have been continuing difficulties in practice in securing the right to a fair hearing in control order cases. These amendments are designed to make clear the primacy of the duty of fairness in this context, as in the other context, consistent with what the courts have repeatedly stated, and to avoid the uncertainty that will inevitably otherwise result. I beg to move.

[Lord Lester of Herne Hill]

My Lords, I have put my name to the amendment and I wish to speak briefly in support of it. I shall not add to anything that the noble Lord, Lord Pannick, has said, because I perfectly agree with his entire analysis.

Regarding the evidence given to the noble Lord, Lord Macdonald, QC, in his review of counterterrorism powers, the noble Lord, Lord Pannick, referred to 27 members of the Bar who gave evidence. Eleven of them are extremely distinguished Queen’s Counsel, as are the juniors who act for both sides, who cannot be accused of being soft on terrorism or anything of that kind. I do not know whether the Minister has seen their devastating criticism and attack upon the special advocates and control order regime.

Like the noble Lord, Lord Pannick, I do not agree that there is a distinction to be made between this regime and control orders for the reasons which he has given, including the judgment of the European Court of Justice in the Kadi case. I can deal with the amendment briefly, because the report of the Joint Committee on Human Rights published at the end of last week deals with this matter in detail, from paragraph 1.25 to paragraph 1.35. The committee will meet tomorrow and will need to consider this debate and the Minister’s letter to the committee, referred to by the noble Lord, Lord Pannick.

I hope that the House will be assisted by our having brought out the report, unusually before the Minister has had a chance to reply. Paragraph 1.35 states:

“We recommend that consideration be given to amending the legal framework to ensure that it secures the ‘substantial measure of procedural justice’ to which the subject of an asset-freeze is entitled under both Article 6 ECHR and the common law … we recommend that consideration be given to amending the Bill in four specific ways”.

Those are then set out.

Whatever happens today, this will not go away. It is extremely important, and it is my wish that both Houses take steps to ensure again that our statute book avoids the need for unnecessary litigation. Unless a significant change is made, whether in this House or the other place, it will be inevitable that this will be pursued not only in the context of counterterrorism, but also in the context of this aspect of counterterrorism; namely, asset freezing. Therefore, I hope that even at this late stage in the process in this House consideration can be given to what is in the report of our committee.