European Union (Withdrawal) Bill

Lord Thomas of Gresford Excerpts

Committee: 2nd sitting (Hansard - continued): House of Lords
Monday 26th February 2018 Lords Chamber

[Lord Inglewood (Con)]

My Lords, it is two or three years ago now, but I had the privilege of chairing a House of Lords ad hoc Select Committee on extradition law. Of course, extradition law, as far as the European Union is concerned, is the question of the European arrest warrant. I can say with confidence that the conclusion we reached, on the basis of the evidence before us, was that the system seemed essentially to satisfy all the parties concerned. It was working well, not only from this country’s point of view but from the point of view of other countries in the European Union. Of course, the reality is that a deep and special relationship will not inhibit criminals coming to this country. In a world where there is ever greater mobility, we will have our fair share of criminals from elsewhere and no doubt other countries will have their fair share of our criminals. We have to deal with that problem.

The other thing that was pretty apparent from our work was that most of the criticism of the system was hung up on the European Court of Justice. It was a criticism not of what the European Court of Justice on the whole decided was appropriate, but of it not being exclusively comprised of British citizens. We need to be absolutely clear about that. We are talking about a system, the generality of which worked extremely well and in everybody’s interests. Therefore, I ask my noble friend the Minister whether he can give the Committee an assurance that, whatever arrangement may come into being after Brexit, they will work as well as the existing arrangements.

We have heard a number of speeches this evening that have been a trifle philosophical in tone, and I do not want to criticise anybody for that. I want to make a purely pragmatic point: if the system is not as effective as the one we have now, there will be more criminals on the streets of this country. Do the Government wish to bring that about? Equally, more of our criminals will no doubt be enjoying their ill-gotten gains in relative security on the Costa del Sol. Is that what the Government want to bring about?

We have heard about Ireland and I need say no more about that. It is terribly important to be clear about the pragmatic, nuts-and-bolts, on-the-ground implication of scrapping this procedure because there is every risk and likelihood, if we are not careful, that we will degrade the system of justice in this country.

[Lord Thomas of Gresford (LD)]

My Lords, I follow the noble Lord, Lord Inglewood, in a plea that we do not go back to the system before the European arrest warrant was introduced. The noble Baroness, Lady Kennedy, referred to the case that we did together some years ago when the extradition proceedings, which lasted some four and a half years, were ended by the 12th application for habeas corpus being turned down by the noble and learned Lord, Lord Woolf, which he may remember. What he may not remember is that my client went back to the country demanding his extradition, where the prosecution accepted a plea of guilty to one out of 32 charges, and was given a sentence that resulted in his immediate release. That was the old system; the system we have had since the introduction of the European arrest warrant, with all the agencies that have come into being, started I think by Mr James Callaghan when he was Prime Minister, developing under the European Union banner, has been extremely good and effective.

In the Queen’s Speech debate on 27 June last year, it will not surprise your Lordships to know that I asked the Government what they were going to do about this whole area—about all the agencies to which the noble Lord, Lord Hannay, referred. What was going to happen? After that, there was complete silence. I wondered what was happening. These discussions and negotiations are as urgent as any to do with trade. They deal with the security of this country and the possibility that, if nothing is put in place, this country will become a haven for criminals, as opposed to somewhere the law is properly administered. But nothing happened—and so it was with considerable interest that I read the speech of the Prime Minister in Munich a week last Saturday. What was she going to say? She proposed a treaty. Who is negotiating that treaty? Who is in charge? Is it Mr Johnson? That is a bit unlikely. Is it Mr Fox or Mr Davis? Who are they negotiating with? The noble Baroness, Lady Goldie, in her reply to the last debate, said that she knew that there was a dialogue going on. What dialogue? I have not heard of any dialogue, and I am interested in this subject. Where are we?

The noble Lord, Lord Hannay, also asked the very pertinent question of what happens after March next year. Do the extradition warrant system and all the other bodies concerned with co-operation in criminal matters continue, or not? If they do not continue, the treaty to which the Prime Minister referred must be in place. As the noble Lord, Lord Judd, said a moment ago, we cannot have an interregnum—a period when nothing is happening. Something has to be put in its place, and nothing I have seen or read suggests that there is a dialogue or treaty in any form, draft or anything else ready to come into operation when we leave the European Union.

So specific questions on this issue can be asked of the Minister. What negotiations are happening? Who is doing them? When will there be a result? What is in the treaty? How are you going to put all these things together in a period of months to ensure the continuation of co-operation in this extremely important field? If there are no answers to those questions and the Minister just chuckles his way through, as he occasionally does—if he will forgive me—the security of this country is at risk, and we risk becoming that haven for criminals that would be a blight on our whole country.

[The Earl of Listowel]

My Lords, my name has been added to the amendment in the name of the noble Baroness, Lady Massey of Darwen, and I support every word that she said. Of course, she was chair of the All-Party Parliamentary Group for Children for many years, and had to give up that job because of her new responsibilities in Europe for the welfare of children. So I am sure the Minister will want to pay very close attention to what she has said.

I have a specific question for the Minister. Many foster carers in this country are from continental Europe. We do not know exactly how many, but the European Criminal Records Information System is very useful in ensuring that those interested in preying on children do not move from one country in Europe to another or from continental Europe to this country. The Minister will be aware of recent concerns that people interested in preying on young people in the developing world have been joining charities, for instance. Will he provide the Committee with as much information and detail as possible, given the concerns raised around the Committee this evening on these issues?

I was pleased to hear of the Prime Minister’s speech in Munich. I also recall that two or three years ago, as Home Secretary, she brought in the human trafficking Act, which was an important step forward. I look forward to the Minister’s response.

--- Later in debate ---

[Lord Callanan]

I will come to that later in my speech, but I will answer that question.

In that same paper, we made it clear that we value the operational benefits that we derive—I was struck by the comments on this from the noble Lord, Lord Hogan-Howe, and on how valuable many of them are. The noble Lord, Lord Hannay, referred to many of them, too, including the passenger name record directive, the second generation Schengen Information System and the European arrest warrant. There is also ECRIS, referred to by the noble Earl, Lord Listowel, and all the various acronyms that go with many of these JHA matters. They are all to do with the systematic exchange of information with our EU partners—for example, on criminal records—which helps to deliver fair and robust justice. I hope that reassures the noble Lord, Lord Cormack. He referred to Interpol. I assume that he meant Europol, but, for the avoidance of any doubt, I should say that we continue to co-operate in the same way with Interpol.

We made it clear that we want to agree future arrangements in this area that support co-operation across a range of EU measures and agencies, and to avoid operational gaps for law enforcement agencies and judicial authorities in the UK and the EU. The level of co-operation that we want to sustain goes beyond the specific tools and measures highlighted by the noble Baronesses, Lady Kennedy and Lady Massey, and the noble Lord, Lord Adonis. We have described the legal instruments here as a “toolkit” that can provide cumulative benefits. We have also indicated that we want our future partnership with the EU in this area to be dynamic, allowing us to co-operate if necessary in new ways in the face of evolving threats.

The amendment tabled by the noble Baroness, Lady Kennedy, highlights the respective roles of domestic courts and the CJEU. We made it clear in our future partnership paper on security, law enforcement and criminal justice that a future agreement in this area would need to provide for dispute resolution. Let me give a little more detail on that.

On leaving the EU we will bring to an end the direct jurisdiction of the CJEU in the UK. There are a number of existing precedents where EU agreements with third countries provide for close co-operative relationships without the CJEU having direct jurisdiction in those countries. The UK will engage proactively to negotiate an approach to enforcement and dispute resolution that meets the key objectives of the UK and the EU. We also published a separate future partnership paper on enforcement and dispute resolution last August, addressing many of those points and setting out the Government’s approach to these issues.

The House has of course debated this issue on a number of occasions, particularly earlier this month, on 8 February, in the debate on the EU Committee’s report on judicial oversight of the European arrest warrant. The withdrawal agreement and implementation Bill will implement the withdrawal agreement in our domestic law. In addition, the Government have already committed to provide Parliament with a meaningful vote on any final deal. This will give both Houses of Parliament the opportunity to scrutinise again the future relationship between the UK and the EU. We need to be able to work with the EU to respond quickly and effectively to the changing threats we face from terrorism and serious organised crime. In negotiations, we will be seeking to agree the best possible way to continue our work alongside our European partners in support of our common goals and shared interests. We are absolutely committed to securing the close relationship that the noble Baronesses, Lady Ludford, Lady Kennedy and Lady Massey, and the noble Lord, Lord Adonis, want to see—and on that basis I hope that they will not press their amendments.

Amendment 99, also tabled by the noble Baroness, Lady Kennedy, would prevent regulations made under Section 7(1) of the Bill from diminishing the protections in relation to “protected persons” set out in Part 3 of the Criminal Justice (European Protection Order) (England and Wales) Regulations 2014. As I understand it, the amendment seeks to ensure that the relevant authorities in England and Wales will continue to recognise and act upon European protection orders made in remaining member states after exit day, whether or not those states act on ours.

The EPO regime, established by an EU directive of the same name and implemented in England and Wales under the cited regulations, which came into force in 2015, is essentially a reciprocal regime. It requires the relevant designated authorities in the different member states involved to act and to communicate with each other in the making of an order and in its recognition and enforcement—and also, indeed, in any modification, revocation or withdrawal of one. It is not possible for us to regulate from here to require the relevant authorities of remaining member states to act in any particular way. As such, if we are not in a reciprocal regime we will no longer issue EPOs to remaining member states, since it would be pointless to do so, and nor will the authorities in those member states issue them to the UK, for the same reasons.

In short, absent our continued participation in the EPO regime, or in some proximate reciprocal arrangements in its place, these regulations will be redundant; they do not work unilaterally. This amendment therefore pre-empts the outcome of the negotiations, potentially requiring the retention of redundant legislation. It would not be right to create a false impression by retaining redundant legislation. I am happy to be clear, however, that if the forthcoming negotiations produce an agreement to continue access to the regime established under this directive, or something like it, appropriate steps and legislation will be brought forward to implement it at that time. This will encompass the protections for protected persons. We will, of course, consider that at that stage. Meanwhile, for now, there is no practical point or purpose in having such an amendment or these provisions.

I shall answer some of the other points that were made. The noble Baroness, Lady Ludford, asked me about the O’Connor case and about extradition to the UK from Ireland. I am sure that the House will understand that I am somewhat limited in what I can say on this matter; it is a live case at the moment. Suffice it to say that we are monitoring it closely, but it would be wrong to speculate on its impact before the case is concluded. Once it is, we will be happy to do so.

The noble Baroness, Lady Ludford, and the noble Lord, Lord Paddick, I think it was, asked how we could reconcile the principles set out in the Prime Minister’s Munich speech, first on UK sovereignty and secondly on the ECJ. As the Prime Minister said:

“The Treaty must preserve our operational capabilities. But it must also fulfil three further requirements. It must be respectful of the sovereignty of both the UK and the EU’s legal orders. So, for example, when participating in EU agencies the UK will respect the remit of the European Court of Justice. And a principled but pragmatic solution to close legal co-operation will be needed to respect our unique status as a third country with our own sovereign legal order”.


The noble Lord, Lord Hannay, asked about justice and home affairs in the implementation period. We welcome the EU’s position that the UK should continue to participate in existing justice and home affairs measures where it has opted in. We also want to ensure that the UK and the EU can take new action together against unforeseen incidents and threats during that period. For those reasons, we want to be involved in new measures introduced during implementation where that is appropriate. He also asked about the Prime Minister’s speech in Munich. I confirm that she was talking about all the justice and home affairs measures he mentioned—the EAW, ECRIS, Europol and all the other appropriate acronyms.

The noble Baroness, Lady Ludford, asked about the European arrest warrant and about the chance of a successful outcome compared with Norway. We value our co-operation through the EAW as it provides a faster and cost-effective way of handling extradition and helping us tackle cross-border criminality. With regard to Norway, our starting point for negotiations on future co-operation will be different from that of either Norway or Iceland, where a bilateral agreement is also in place. Of course, our starting point is different from theirs in so far as our extradition arrangements will be fully aligned with those of the EU at the point of our exit since we operate the same tool. That was not the case with Norway and Iceland when they joined.

The noble Lord, Lord Thomas, asked where we are in the negotiations and who is doing them—which the noble Lord, Lord Adonis, was also interested in. The Secretary of State for Exiting the EU is responsible for conducting negotiations in support of the Prime Minister. He is supported by the core negotiating team, which is made up of senior officials from a range of government departments. In response to his question about contacts, officials are engaging now and constantly with EU counterparts on a range of issues—but I come back to my earlier point that it would not be appropriate to give a running commentary on these discussions. We approach the next round of negotiations with optimism.

[Lord Thomas of Gresford]

Can the Minister tell us if the European Union has appointed anybody to represent the 27 other countries in conducting the other side of treaty negotiations?

[Lord Callanan]

Michel Barnier is the EU chief negotiator. I thought that that was fairly obvious.

Finally, the noble Lord, Lord Adonis, asked about no deal. Of course, we approach these negotiations not expecting failure but anticipating success. We are confident that continued practical co-operation between the UK and the EU on law enforcement and national security is very much in the interests of both sides, so we approach these negotiations anticipating success. We do not want or expect a no-deal outcome. However, a responsible Government should prepare for all potential outcomes, including the unlikely scenario in which no mutually satisfactory agreement can be reached. That is exactly what we are doing across the whole of government. The UK uses and benefits from a range of international information-sharing tools in the area of security and law enforcement, which are by no means limited to EU mechanisms but include bilateral and multilateral channels, including Interpol and the Council of Europe.

I hope I have answered all the questions—

[Lord Thomas of Gresford]

Do I understand the Minister to be saying that the people conducting the trade negotiations will deal with the security stuff as well? Is that what he is saying? Are there no lawyers on the other side to conduct the negotiations on behalf of those 27 other countries? What is the situation?

[Lord Callanan]

There are lead negotiators on each side but they are supported by a whole range of officials and Ministers from various departments. David Davis is our negotiator, Michel Barnier is the EU’s negotiator, and they have different members in each of the teams—

[Lord Thomas of Gresford]

But is the withdrawal agreement the same thing as the treaty or are they separate?

[Lord Callanan]

No, the treaty will be a separate piece of legislation when we negotiate it. I hope I have tackled most of noble Lords’ questions and they will be able to withdraw or not move their amendments.

Asylum Seekers: Legal Advice

Lord Thomas of Gresford Excerpts

Monday 5th February 2018 Lords Chamber

[Lord Keen of Elie]

My Lords, the period for which a person has remained illegally in this country should not be and is not a determinant of their right to remain here. It is necessary to apply the relevant law both to the issue of asylum seekers and those who arrive here unlawfully, not even seeking asylum.

[Lord Thomas of Gresford (LD)]

My Lords, a Bar Council report published last November found that at any one time more than 3,000 people, mostly failed asylum seekers, are held in administrative detention without being convicted of a crime, at a cost of £34,000 each. More than half are ultimately released into the community when their appeals succeed. Last Friday, in the case of VC, an asylum seeker from Nigeria with mental problems, the Court of Appeal slammed the Home Office for misinterpreting its own policy and awarded damages. Will the Minister review the means and merits test applied by the Legal Aid Agency, which academic research shows operates to exclude detainees from legal aid by,

“seizing upon the tiniest thing”,

to declare their applications ineligible?

[Lord Keen of Elie]

My Lords, the Legal Aid Agency is of course independent of Government for very proper and good reasons. The application of LASPO—the legal aid Act—is the subject of internal review at present following an announcement by the then Lord Chancellor in October last year.

Crown Prosecution Service: Disclosure Procedures

Lord Thomas of Gresford Excerpts

Monday 29th January 2018 Lords Chamber

[Lord Keen of Elie]

My Lords, we recognise that compliance with disclosure requirements is vital if there is ever to be a fair trial. On a review of present policy, the Attorney-General’s review will take account of recent reports from judges and Her Majesty’s inspectors, as well as gathering additional evidence from bodies, including the judiciary, the Bar Council, the Law Society, police representatives, and prosecutors. In addition, last week the Attorney-General and the Home Secretary addressed a joint letter to both the CPS and the chief constable of the national policing lead on disclosure and the chief executive of the College of Policing, repeating their expectation that a full review is undertaken of all cases similar to those that have already been identified, to determine whether disclosure has been properly carried out.

[Lord Thomas of Gresford (LD)]

Does the Minister not agree that it would be quite disproportionate for the victim to be required to disclose all her emails and electronic messaging to her attacker and his lawyers to trawl through at considerable public expense? Will the Minister not pursue the suggestion I made in our debate a fortnight ago that there should be a protocol whereby a defendant is required to give key words, such as his name, his nickname, places, people and events, to the prosecution for it to carry out such an investigation and to disclose whatever material he has suggested is produced?

[Lord Keen of Elie]

My Lords, I certainly agree with the indication that it would be disproportionate for a victim or complainer to have to disclose the entirety of their social media communications. It would be intrusive and inappropriate, and would impact upon the willingness of complainers to come forward in particular circumstances, so there has to be a balance. It would also raise very real data protection issues, so we have to take account of that. As regards a protocol, we are reviewing protocols in the context of disclosure, and I noted what the noble Lord said about a keyword search.

Legal System: Prosecutorial Policy

Lord Thomas of Gresford Excerpts

Thursday 18th January 2018 Lords Chamber

[Lord Thomas of Gresford (LD)]

It is a pleasure to follow the noble and learned Lord, Lord Brown of Eaton-under-Heywood, because I agree with every word he said, particularly on indeterminate sentences. I turn, however, to the issue of rape. A startling statistic from the organisation Rape Crisis is that three-quarters of all adults who contacted their centres in 2016-17—and there were upwards of 65,000 of them— complained of sexual violence that had occurred at least 12 months earlier. Out of every 100 who experience sexual violence, only 15% choose to report it.

What follows? The Ministry of Justice’s statistics, An Overview of Sexual Offending in England and Wales, published in 2013, estimated that there were between 60,000 and 95,000 rapes annually of men and women in this country. As a result of the low reporting rate, however, only 15,000 were recorded by the police as crimes. Of these, only 3,850 were marked as detected. There were only 1,070 convictions. Do people who commit rape steal away into the darkness, never to be identified? No, not at all: 90% of those who complain of rape know who the perpetrator is. For the legal system to deliver justice to victims, the first step is for the victim to make a timely complaint.

If a person is attacked by a stranger—the one in 10 case—there is usually no difficulty in the victim complaining. The police swing into action: they identify suspects through descriptions of the attacker, forensic examination of the attacked person, and careful examination of the scene. DNA is of critical importance and frequently CCTV plays a part. A delay in a complaint of this type will obviously greatly hinder an investigation, and where a stranger is involved, the chances of a conviction are seriously diminished.

However, that is not the typical case. Far more common are acquaintance rapes, where the complainant is able to identify the suspect as someone known to them: a neighbour, a friend, or someone known through dating. Then there are domestic or relationship rapes committed by people who are, or have been, intimate partners or family members. In these cases, there are very often serious disincentives to lodging a complaint, such as the intimate nature of the offence, feelings of shame or fear that the complainant will not be believed or might be blamed for the offence. There may be a lack of confidence in the criminal justice system, or fears for personal safety or the safety of children. It is, of course, entirely understandable in human terms that one or more of these reasons may cause a complaint to be withheld, but it obviously makes the investigator’s task much more difficult.

One Ministry of Justice statistic is telling. Its researches revealed that 57% of female complainants between the ages of 16 and 59 told someone but did not tell the police; 28% told no one and only 15% told the police. No one told the police but nobody else. Your Lordships will appreciate, therefore, that the evidence of a recent complaint to a relative or friend, admissible under Section 120 of the Criminal Justice Act 2003, may be of real significance.

Another issue raised by the noble and learned Lord, Lord Morris, was disclosure, which is a tricky problem. In the recent case of Allan, a huge number of emails and messages had been collected by the police from the complainant. Reports do not say precisely why or how. Clearly, if there was something in them, as there was, which would assist the defendant, it had to be disclosed. I wholly commend the barrister, Jerry Hayes, a member of my chambers, for his action as the prosecutor in informing the defence and ultimately discontinuing the prosecution. It was in the highest traditions of the Bar. I also commend the CPS and the investigators who must have drawn his attention to this material.

It must be realised, however, that it cannot be right routinely to require a complainant to disclose each and every email and message that might be on their mobile phones. A requirement to turn all intimate files over to the police must be a disincentive to making a complaint in the first place. Disclosure must be proportionate. My noble friend Lord Beith asked how it was to be managed. The Allan case illustrates the need for a further protocol that, as the noble and learned Lord, Lord Thomas of Cwmgiedd, said, would be fair both to the complainant and to the defendant.

What I have in mind is that where a defendant clearly raises the issue of consent in interview at an early stage, he should be entitled to make an application first to the police and, if refused, to a magistrate, for the preservation of any electronic messaging within a specific period in the possession or control of the complainant whom he alleges consented to what happened. He should then be required to provide to the investigator such key words as he thinks appropriate for a search of the material. Clearly, his name would be foremost, but so would places, events and dates. The investigator would search the material according to those key words and anything relevant would be disclosed in the usual way. Of course, the defendant would be taking the risk of there being adverse messages, which would be admissible against him, but if he believed there was material that would assist him, it would be revealed.

The complainant need not fear disclosure of her whole sexual history. A report published last month by the Ministry of Justice and the Attorney-General found that applications under Section 41 of the Youth Justice and Criminal Evidence Act 1999 were made in only 13% of the 306 rape cases examined, and 92% of those applications were disallowed, so the bar against disclosure of the previous sexual history of the complainant is very high. I hope the Director of Public Prosecutions, Alison Saunders, who is meeting today with interested bodies, will consider a protocol along the lines I am suggesting.

I add my thanks to the noble and learned Lord, Lord Morris of Aberavon, for raising an extremely important and relevant issue.

Selection of the President of Welsh Tribunals Regulations 2017

Lord Thomas of Gresford Excerpts

Wednesday 29th November 2017 Grand Committee

[The Advocate-General for Scotland (Lord Keen of Elie) (Con)]

By way of background, there are seven devolved tribunals that are the responsibility of the Welsh Government: the Mental Health Review Tribunal for Wales, the Special Educational Needs Tribunal for Wales, the Agricultural Land Tribunal for Wales, the Adjudication Panel for Wales, the Residential Property Tribunal Wales, the Welsh Language Tribunal, and a tribunal covering the registered school inspectors appeals panels and the registered nursery education inspectors appeals panels.

There are 41 judges currently appointed to those tribunals. Each tribunal has its own judicial lead but these judges have limited access to senior judicial leadership within Wales, which is inconsistent with other judicial officeholders in England and Wales. Sir Wyn Williams, a retired High Court judge, has been undertaking an informal leadership role, but he does not have any statutory powers.

To address this, Part 3 of the Wales Act 2017 created a new post: the President of Welsh Tribunals. The president has responsibility for making arrangements about the training, guidance and welfare of Welsh tribunal members, as well as for representing their views to Welsh Ministers and other Members of the National Assembly for Wales. The president will also be able to give practice directions and will be responsible for deploying tribunal members between the different Welsh tribunals, as well as between the UK-wide tribunals and the Welsh tribunals.

The president will also be responsible for establishing and communicating the judicial strategic direction for the Welsh tribunals. He or she will provide leadership and build effective relationships with the judicial leads of the Welsh tribunals, as well as with the Welsh Government’s Welsh Tribunals Unit, the Lord Chief Justice, the Judicial College, and Ministers and officials in the Welsh Government, relating to policy issues affecting the Welsh tribunals.

Paragraph 2 of Schedule 5 to the Wales Act 2017 provides two routes for the appointment of the President of Welsh Tribunals. The first is by agreement between the Lord Chief Justice, the Lord Chancellor and the Welsh Ministers with regard to a person who is, or has been, a judge of the Court of Appeal or the High Court. The second route, in default, is following selection by the Judicial Appointments Commission.

If agreement cannot be reached between the Lord Chief Justice, the Lord Chancellor and the Welsh Ministers on the appointment, paragraph 2 of Schedule 5 to the Wales Act 2017 requires the Lord Chief Justice to make a request to the Judicial Appointments Commission for a person to be selected for appointment to the office of President of Welsh Tribunals.

Elements of the procedure for appointment by the Judicial Appointments Commission are set out in the Act itself. These include that the Judicial Appointments Commission must appoint a selection panel which must include at least two members who are non-legally qualified, at least two judicial members and at least two members of the Judicial Appointments Commission.

The Lord Chancellor is also required to make additional provision about the process to be applied. That is what these regulations do. In particular, they specify that the selection panel should consist of five members and make further provision about the appointment of people to that panel, including that the chairperson of the panel is to be a person designated by the Lord Chief Justice who holds, or has held, office as a judge of the Supreme Court, a Lord Justice of Appeal or a puisne judge of the High Court.

The regulations also make further provision relating to consultation during the process and to the reporting of the panel’s selection to the Lord Chief Justice and the Lord Chief Justice’s options when deciding on that selection. In order to be consistent with the relevant primary legislation and the nature of the new office, the appointment process closely reflects that which applies to the selection of the Senior President of Tribunals.

The Wales Act 2017 established the role of the President of Welsh Tribunals and the requirements for the appointment of a judicial officeholder to that office. These regulations allow that appointment to be made. I therefore commend the regulations to your Lordships and beg to move.

[Lord Thomas of Gresford (LD)]

My Lords, I very much welcome these regulations, although I hope that the machinery that they set up will not be used, because of course the alternative way is by agreement between the Lord Chancellor, the Lord Chief Justice and Welsh Ministers.

At a time when the independence of the judiciary has been under attack, when we have heard expressions in the press such as, “Enemies of the people”, and when the press has questioned the impartiality of judges in many ways and the degree to which they are in touch, it is very important that the independence of the judiciary in Wales should be emphasised. In most of these tribunals, one of the parties concerned will almost certainly be the Welsh Government or local government, and it is very necessary that the administrative tribunal should be seen to be impartial.

I am very pleased that my old friend Sir Wyn Williams has been acting in an informal capacity as President of Welsh Tribunals—we used to meet on many a rugby field in our youth. Hopefully, he will continue in that role, and maybe he will be a candidate for president. I could not imagine the independence of the judiciary being in better hands to give leadership and direction. So many of the 41 judges who are sitting on these tribunals are lay persons without necessarily any lengthy experience in the law, so it is important that they should be properly trained and properly led. I am sure that that has been done under Sir Wyn Williams and that it will continue under these regulations.

Civil Procedure (Amendment) Rules 2017

Lord Thomas of Gresford Excerpts

Wednesday 13th September 2017 Lords Chamber

[Baroness Jones of Moulsecoomb (GP)]

My Lords, I congratulate the noble Lord, Lord Marks, on bringing this regret Motion. I am always conflicted by regret Motions, because they are extremely weak, which of course infuriates somebody like me. However, at the same time they do two things. First, they send a message to the Government—they have to sit and listen and, perhaps, do something good for a change; but secondly, they allow people like me to get up and rant, and I would like to rant for a minute, because I am furious about this. I cannot see how any Government can reduce justice for all, and that is the principle at stake here. The principle is that justice is for everybody, however rich or poor. The noble Lord, Lord Marks, raised a case where a political party wanted to bring an environmental case and did not have the money for it. This will happen more and more.

We can look at some of the things that the Government are doing at the moment—for example, HS2, which is the most incredibly wasteful, stupid, unnecessary piece of infrastructure they could possibly have devised. That will raise all sorts of issues. It is already steaming through sites of scientific interest, and there will be huge environmental problems. By removing the cap, the Government are reducing the hassle they will experience in pushing this through. I therefore urge the Lords to vote for this Motion and show the Government that what they are doing is completely wrong. This Chamber has a real opportunity to make life better for people—and of course, people who are on a low income, and charity and community groups who do not have the money, will suffer because of this.

[Lord Thomas of Gresford (LD)]

My Lords, I will continue with the issue of community and talk about my community, Gresford, where I live. Many years ago, I was involved in a judicial review. There was an application for opencast mining at Gresford colliery. Members may recall that that was the scene of a terrible mining disaster in 1934, when 266 men lost their lives underground and only 12 bodies were ever recovered—the rest remain there. Therefore, the issue of opencast mining was clearly one of considerable concern. The county council, in considering a planning permission, did not adequately advertise it, and there was not proper consultation.

I appeared pro bono for the Gresford amenity society to take the county council to court to challenge its decision. The court of two judges decided that I was quite right—it had not been properly advertised and there had not been proper consultation. However, one judge was prepared to give us a remedy, which was to quash the decision, while the other judge was not. It is a question of discretion for each judge as to what remedy should be given, even if you are successful on the facts. When this small group, who were not wealthy, had to decide whether to pursue the matter and ask for a second hearing—with, of course, counsel involved on the side of the county council and possible liability for costs—they were not prepared to take the matter further. However, the county council properly readvertised and there was proper consultation, and as a result of submissions made by that group and others, proper safeguards were put into consent to the planning application. Today, one can see that at Gresford colliery the workings have all been renewed and it looks very pleasant. However, that was the limitation of judicial review as it was then.

Therefore, when in 2005 the United Kingdom ratified the Aarhus convention, I felt a sense of relief. As appears from the declaration made by the UK Government upon signature and confirmed on ratification, the United Kingdom recognised the right of every person to live in an environment adequate to his or her health and well-being. The United Kingdom guaranteed the right of access to justice in environmental matters by the declaration it made on ratification, yet only five years later, in 2010, the European Commission took the United Kingdom to the European Court of Justice to determine whether it was fulfilling its obligations under the convention, specifically on the obligation that its judicial proceedings must not be prohibitively expensive.

--- Later in debate ---

[Lord Keen of Elie]

Let us be absolutely clear about what the position is. When a claimant begins the proceedings, there is a default cap, but on seeing the schedule of means, the court may vary that cap, downwards or upwards—downwards to the benefit of the claimant, upwards to the benefit of the defendant, potentially. Therefore, that is appropriate.

[Lord Thomas of Gresford]

The regulations as drafted suggest that there can be alteration depending upon the court’s view of the merits or demerits of the case as it goes along. Am I wrong in that?