Victims and Prisoners Bill

Lord Hope of Craighead Excerpts

Committee stage
Tuesday 12th March 2024 Lords Chamber

[Lord Hope of Craighead (CB)]

My Lords, I shall speak to Amendments 159 and 160 in this group, which the noble Lord, Lord Blunkett, has asked me to introduce on his behalf, and in support of Amendment 161, which was spoken to so ably by the noble Lord, Lord Moylan, a moment ago. I join others in expressing great regret that the noble Lord, Lord Blunkett, cannot be here to speak to his own amendments. It was very good of him to suggest that I might take his place in the case of these two amendment, but I am conscious of the fact that I cannot match the contribution that he would have made had he been here. Along with others, I have admired the way in which, with commendable candour, as has been said, he has faced up to the enormous and wholly unforeseen problems that the IPP regime has created. He has done his very best to bring his profound understanding of our prison and parole systems to bear in the search for solutions to the problems, and the amendments in his name are the product of that endeavour. His contribution in person will be very much missed.

I come from a quite different background. When I served for seven years as Lord Justice General in Scotland, I visited all the prisons but one in that country and attended several meetings of its Parole Board. I did this because under the regime that was then in force one of my responsibilities was to advise the Secretary of State for Scotland when it would be in the interests of justice for prisoners who were serving a mandatory or discretionary life sentence to be referred to the Parole Board with a view to them being released on licence. In each of these cases, I was presented with files, often very substantial, that recorded the prisoner’s progress through various stages in the prison system. I felt that I had to visit the prisons, each of which had its own characteristics, in order to understand what I was dealing with. I also wanted to meet and speak to some of the prisoners who were there, whose names were never released to me, and on one occasion joined them sitting at a table, in their case almost for the first time in many years, to eat lunch with them using a knife and fork.

I admired the way the Parole Board went about its work, equipped, of course, with very substantial files. It was borne in on me how much attention was paid to what was in those files, how crucial it was that the files should be accurate, fair and complete and how much effort had to be put in by those who were reading the files and relying on them in order to understand the picture that they presented. I join the noble and learned Lord the Minister in expressing appreciation of the work done by the Parole Board in these cases, particularly the IPP cases, where the burden on it is so heavy.

We did not have IPP prisoners in Scotland when I was there and never have had, so I can only guess at the scale of the problems that all those who have to administer that system must face. However, there was, in my time, a very well-organised and properly funded training for freedom programme, which all life-sentence prisoners who had reached the appropriate stage would undergo.

Care was taken to see that those prisoners understood the plan and how their sentence was to be progressed; that played its own part in the eventual success of the plan that they were working to. Of course, I am speaking of how things were in Scotland 30 years ago. The pressures on the prison system, both there and here, are very much greater now, while the IPP system is in a class of its own. However, it gives a hint of background to the way the mind of the noble Lord, Lord Blunkett, was going when he proposed these amendments.

One further word of background: I, along with others, look back to the powerful and sustained contributions made on this problem from these Benches over many years by the noble and learned Lords, Lord Lloyd of Berwick and Lord Brown of Eaton-under-Heywood. I think it was the noble and learned Lord, Lord Lloyd, who was very much involved in the measures that eventually led to the changes brought about by LASPO. He went right back to the very beginning. From the very start, when I first came into the House, he was making strong speeches in favour of the need to change the system. We can recall much more recently the contributions by the noble and learned Lord, Lord Brown. I felt I owed it to them to contribute tonight because they are no longer able to be with us.

Amendment 159 seeks to place the Government’s existing action plan on a statutory basis and strengthen its effect by giving it a purpose that is set out in the statute. That purpose will be to ensure the effective rehabilitation and progression of persons serving these sentences. The Minister was kind enough to present to us, in his reply on the previous group, the overall framework that has now been developed in order, as I understand it, to improve on the existing plan. I hope that he will forgive me for saying what I am going to say—it is really a criticism of the plan that I think he is departing from—but it may indicate the way that the mind of the noble Lord, Lord Blunkett, is going as to how the existing plan ought to be improved. It may also assist in the development of the plan that is currently being worked on.

Amendment 159 sets out the position in a good deal of detail but the structure of the amendment can be summarised briefly in just a few words. First, in subsection (3) of the proposed new clause, it sets out in five propositions what the revised action plan must seek to do. In subsection (4), it sets out what the plan must include if it is to deliver that purpose. It then goes on to provide how that purpose is to be delivered. The Lord Chancellor must allocate sufficient resources and appoint a board to oversee the delivery of the plan, then the board must provide the Lord Chancellor with a report at the end of each financial year, which will be laid before Parliament.

As the noble Lord, Lord Blunkett, sees it, the present plan, although an improvement on the previous one, suffers from a basic and fundamental weakness: it has no stated purpose. It does not state what the outcomes for those serving these sentences are to be. They have not been given a forward plan that would allow for some hope and enable the sentence to be progressed, nor is it said how the process is to be monitored or evaluated. Although the prisoner’s case is to be subject to review every six months, these basic weaknesses remain; that enhances the sense of hopelessness, as has been mentioned in the earlier stages of these debates.

According to the figures I have been given—I will deal with them briefly—the quarterly number of releases has remained static at between 50 and 59 over the past three years. Re-releases have been declining while the number of IPP recalls has been increasing. The lack of any real progress shows that something must be done, although I accept the point that has been made: the more the number of IPP prisoners remaining in custody decreases, the greater the problems that one must face to consider them suitable for release. I absolutely understand that and am sure that the noble Lord, Lord Blunkett, appreciates it very well.

Of course, there are no easy answers and regard must always be paid to the protection of the public from serious harm, but we owe it to these unfortunate people to do more. There is an urgent need to review their needs and to provide each individual with a forward plan as to how their sentence is to be progressed, and that plan should be updated regularly. A whole range of issues needs to be covered, as referred to in subsections (3)(b) and (4)(b) of the proposed new clause. That really is the key. Their physical and mental health needs to be attended to and they need to be provided with daily and weekly activities including exercise, work and education, designed to develop their suitability for release. Their skills for everyday living in the community need to be developed too—such simple things as eating with a knife and fork at a table. So much more could be done with a stated purpose and a structured plan. That is what this amendment seeks to achieve.

Amendment 160 provides for the setting up of an independent scrutiny panel. The function of the panel would be to ensure that Ministers and officials give priority attention to the IPP prisoners and scrutinise each prisoner’s progress through his or her IPP action plan.

Finally, I very much welcome and strongly support Amendment 161 from the noble Lord, Lord Moylan. It deals head on with the unfairness which is such a stain on the justice system. Although those serving life sentences have for the most part been convicted of a more serious crime, it is the IPP prisoners—often initially with a very short period to serve as a tariff—who have to prove their lack of risk to be released. In their case, the burden of proof was reversed, while life sentence prisoners can expect to be released when their tariff has been served, unless the Secretary of State can show that they still present a risk to the public. We have seen what this has led to. It is surely now time for it to be changed, as the noble Lord, Lord Moylan, has been urging. That was what the noble and learned Lord Brown of Eaton-under-Heywood argued for so vigorously whenever he could. He would certainly have done that again this evening, had he been here. I hope that the noble and learned Lord the Minister can see his way to accepting this amendment.

[Baroness Burt of Solihull (LD)]

My Lords, I support every single amendment in this group, particularly the “two strikes” part of the amendment from the noble Lord, Lord Blunkett, so ably introduced by the noble Baroness, Lady Chakrabarti. I am sure we have all had letters from individuals who are languishing in prison under the “two strikes” rule. For the sake of brevity, I will just talk about Amendments 165 and 166 in my name.

Amendment 165 comes from a concern at the lack of fulfilment of aftercare obligations for prisoners who have been transferred to a secure hospital and subsequently returned to prison. It amends Section 117 in Part 8 of the Mental Health Act. We are talking about approximately 400 people who will, arguably, need additional help to cope with their return to prison life and subsequent reintegration into the community. It will help clarify and highlight the existing Section 117 entitlement to aftercare for prisoners who have been transferred from secure hospital to prison and remain either in prison or out on licence in the community. These individuals can be defined as those who are entitled to Section 117 aftercare. Sometimes this does not happen and individuals either in prison or out in the community do not receive the aftercare they need or are entitled to. Clearly, this entitlement is and should be reflected in their release plan and will increase their chances of a successful transition into the community, reducing the risk of recall.

Victims and Prisoners Bill

Lord Hope of Craighead Excerpts

Tuesday 12th March 2024 Lords Chamber

[Baroness Burt of Solihull (LD)]

My Lords, I have added my name to all the amendments in this group, initiated by the noble Lord, Lord Blunkett, and so well presented by the noble Baroness, Lady Chakrabarti.

While I have made my feelings clear on many occasions on just how egregious the treatment of all IPP prisoners has been, the situation for individuals sentenced as children has been arguably even more cruel and wrong. As I understand it, there are 85 people currently serving an IPP sentence that was handed down when they were children and some were of a very young age.

The teen years are such a formative time, and of the 85 remaining—who are now all adults—they have arguably had the worst start in life; 36 of them have never been released. What chance have they got of adjusting back into whatever might pass as a normal life? The only upside of this is that, because there are not that many of them, more time and attention can therefore be focused on fitting them for release.

According to the Prison Reform Trust, there is a window in which people typically develop the support and inner resources to desist from crime. As the noble Baroness, Lady Chakrabarti, has said, this unfortunate cohort is rapidly passing that window, which means that giving them the maximum possible support as quickly as possible is vital.

Amendment 155 would halve the qualifying period in which other statutory provisions for children become spent. Amendment 162 would give heavier support to DPPs who are unsuccessful in staying on parole or getting released at all. My worry about changing sentence planning reviews from annually to quarterly, however, is that if nothing has happened it might devalue the relevance of the review and dishearten the prisoner.

Amendment 163 would halve the time between referrals for consideration by the Parole Board to one year, which I heartily commend. The issue for me is the cost in financial and human resources, to which the Minister might want to refer. The only upside of this concentrated help is the fact that there are not many DPPs in terms of the overall cost that is being expended on IPP prisoners.

If these young people are to have a real chance, they need the help now, while their mind and their development can still be receptive to another way of living their life.

[Lord Hope of Craighead (CB)]

My Lords, I would like to add a few words to what has already been said about Amendments 162 and 163 devised by the noble Lord, Lord Blunkett. The really important part of Amendment 162 is in proposed new subsection (2), which would set out in statute the aim of the convenor of these planning meetings. It states that they are taking place

“with a view to ensuring that all possible steps are taken to enable their safe release at the earliest possible time”.

Those words emphasise the purpose of the reviews and therefore enhance the care that would be taken to conduct them by the Secretary of State.

As far as Amendment 163 is concerned, the first part of it is already the existing law. It says that for

“a person serving a sentence of detention for public protection, the Secretary of State must refer his case to the Parole Board … after he has served the relevant part of his sentence”.

That is a tariff and is already standing practice. What is new is the proposal that the Secretary of State must refer a person’s case to the Parole Board,

“where there has been a previous reference of his case to the Board, no later than the period of one year beginning with the disposal of that reference”.

The emphasis in both these amendments is on the regularity of reviews. When I was Lord Justice General, I saw this working well in my visits to the Parole Board. As I mentioned earlier, there are files prepared that have to be examined in detail, but the Parole Board appointed a particular member to take on a particular case, so that each time it came up for review, the member could reinforce what was in the files by explaining his or her own view of what was taking place and, as time went on, reinforce it by previous discussions. In that way, continuity was provided to the whole process.

Each board will have its own method of dealing with it, but the structure of what is provided by these two amendments provides a basis on which the Parole Board can exercise its views with a view to achieving what is set out in proposed new subsection (2) in Amendment 162, ensuring that all possible steps are taken to ensure safe release at the earliest possible time.

[Lord Hodgson of Astley Abbotts (Con)]

My Lords, I have added my name to Amendment 155 in this group. The principles behind and the purposes of the amendments we have been discussing have already been well forked over, so I will cut straight to the chase.

I have intervened in Committee only on one other group of amendments, a few weeks ago on restorative justice. I link the two because they offer the opportunity to break cycles of offending and to give the individuals involved a chance of hope, to avoid the hopelessness that my noble and learned friend the Minister said was so pernicious when he was summing up the first group of amendments; the noble Lord, Lord Berkeley of Knighton, also said it when contributing to a later group. Nowhere can this be more important than when dealing with young offenders. As the noble Baroness, Lady Chakrabarti, said, the individuals who make up the group covered by these amendments are unlikely, at the time of their initial sentence, to have a great deal of emotional maturity or self-discipline. They are children, as she pointed out. This is unsurprising, given the likelihood of their background and their life chances prior to their sentence. One hopes that the framework provided by the prison regime for young offenders will accelerate that emotional and other development, paving the way for a return to society.

I endorse the remarks of my noble friend Lord Attlee and the noble Baroness that this is not seen as a soft option. We have to make sure that the public are properly protected—otherwise, respect for and confidence in our judicial and penal system are undermined.

This group is going to undergo a further shock. At a meeting of the All-Party Group on prisons, we had evidence from young people—25 year-olds, really—about what it was like to move from a young offender institution to full prison life. The evidence was pretty startling. The guy said that life in a young offender institution was no bed of roses, but when you got into prison it was a whole different world—quite shocking. Clearly, he was very shocked by it. Indeed, Recommendation 24 of the Justice and Home Affairs Committee report addresses the issue of how you transition and what it means to the people who are so caught up in it. He went on to say that, for some people, it hardened them into a life where they would be persistent offenders but, for some others, it was a wake-up call. They saw that it was a chance, if they managed to get their act together, and were encouraged, to be able to break out—and part of that was seeing some light at the end of the tunnel. This is one of the issues that is very important in these amendments: it is about light at the end of the tunnel, and people being able to see that something can happen to them.

I shall end with a different example that is completely outside the matters that we have been discussing but which might give a sense of what it feels like to be given an IPP sentence. My father’s best friend was captured at Dunkirk in June 1940. He was 24 years old, and he was in a prisoner of war camp until May 1945, when the war came to an end—first in Germany, then in Poland. He went in at 24 and came out at nearly 30. He did not talk about it much, but I remember when I was about 20 him being prepared to talk about what the experience was like. So much of it was like having an IPP sentence.

It began with a sense of shame: had you done enough? Should you have gone on to the bitter end and had you, by surrendering, let your country down? But that died away. Then it was about hardship, which was quite great in the first winter of the war, 1940-41, until Red Cross parcels and parcels from home began to arrive. But my father’s friend said that none of that in any way matched up to the appalling sense of hopelessness —that month after month and year after year ticked by, and you could feel your life running through your fingers.

My father’s friend could articulate that, but I suspect that that is what quite a lot of the IPP individuals are feeling, to some extent, even if they are not able to put it clearly into words. They are the ones for whom I hope we can find ways to help, so that they get that sense of hope. In the prisoner of war camp—they put it rather more roughly in those days—a lot of people behaved rather oddly. What they were saying, of course, was that they were under extreme mental stress. There were no drugs, of course, because they were not available in those days, but the stress of persistent confinement in very crowded conditions undoubtedly had a huge effect on a number of people in a prisoner of war camp.

That is why we need opportunities for reviews of individual cases to take place as often as is consonant with public safety. That is why I support this group of amendments and why I put my name to Amendment 155 in particular.

--- Later in debate ---

When I spoke earlier of the possibility, between now and Report, of putting the action plan, or the need to have an action plan, on some kind of statutory basis, and possibly setting out in the statute, in broad terms, what the action plan should cover, it seems, to me at least, that there would be an important argument for providing that the action plan has to have a section on DPP offenders and has to demonstrate that these offenders are given priority and that there is an appropriate regime for them. A combination of that kind of provision in the action plan plus the existing priority given to DPP offenders by the Parole Board would go a very long way to achieving the joint objectives that noble Lords are envisaging. That is broadly the Government’s position.

[Lord Hope of Craighead (CB)]

Before the noble and learned Lord sits down, will he comment on the point I was making about the aim of having these reviews written into the statute? Subsection (2) in the new clause set out in Amendment 162 says that they are taking place

“with a view to ensuring that all possible steps are taken to enable their safe release at the earliest possible time”.

That flags up, at the outset, exactly what these reviews are dealing with. I do not know whether it is already in the action plan that the Minister has been referring to, but is there some way of getting that purpose clearly identified, and of course communicating that purpose to the DPP prisoners themselves who are subject to the system, so that they know that that is the purpose for which these reviews are being conducted?

[Lord Bellamy (Con)]

I thank the noble and learned Lord, Lord Hope of Craighead, for that point. It is certainly something I will take away when we come to consider the Government’s position.

Arbitration Bill [HL]

Lord Hope of Craighead Excerpts

Second reading committee
Tuesday 19th December 2023 Grand Committee

[Lord Hope of Craighead (CB)]

My Lords, I too, I think in common with all your Lordships, very much welcome this Bill. It is plain from the Law Commission’s report that it is the product of a great deal of hard work on the parts of the Law Commission itself and those who responded to its papers in the course of this process.

The result is a compact measure that seeks to amend the Arbitration Act 1996 in 15 distinct respects. I do not think that anything in the Bill is controversial. On the contrary, the proposals will all contribute to the improvement of the law of arbitration in England and Wales in the various ways that the Minister explained in his helpful introduction. Our thanks must go to all the members of the Law Commission who contributed to this process and to His Majesty’s Government for finding time to bring the Bill before us. We very much hope it will achieve its results before the next election.

At first sight, the best guide to what has been going on might be thought to be found in Appendix 3 to the Law Commission’s final report, which sets out for the reader a list of all the suggestions that have not been taken forward. No less than 54 such suggestions are listed. I thought that this was perhaps quite a good indication of the amount of interest among practitioners that this project has generated. However, my sense of excitement was somewhat dampened when I read in paragraph 3.3 that almost all these suggestions were raised by only one consultee, and that there was, indeed, no widespread clamour for reform in respect of the various suggests that that consultee put forward. On the other hand, the consensus was that the 1996 Act works well, as indeed it does, and that root and branch reform was not needed or wanted. What was looked for, instead, was some updating and refinement of what we already have. Indeed, this is essential if we are to ensure that England and Wales remains the jurisdiction of choice for the resolution of international disputes.

The fact is that there is a very competitive market out there in the wider world. We must keep our heads in front. We do not want to lose our place to others in the Middle East and elsewhere, who are marketing their services vigorously to attract as much business as they can. That is why the work that the Law Commission has done in bringing this Bill forward is so important and so much in the public interest.

Leaving Appendix 3 aside, a word should be said about the work done by some very experienced practitioners in Brick Court Chambers, including my noble and learned friend Lord Hoffmann. I should mention that, although I am a door tenant there, I was not one of those practitioners. They worked to persuade the Law Commission to include a provision in the Bill about the law applicable to the arbitration agreement. I understand that what is now Clause 1 was not in the first draft of the Bill, but it is good to see that the Law Commission was persuaded that there was a need to clarify the rules as to its determination.

As the Minister mentioned in his introduction, the position in Scotland is set out in Section 6 of the Arbitration (Scotland) Act 2010, which provides that:

“Where (a) the parties to an arbitration agreement agree that an arbitration under that agreement is to be seated in Scotland, but (b) the arbitration agreement does not specify the law which is to govern it, then, unless the parties otherwise agree, the arbitration agreement is to be governed by Scots law”.


There is currently no such provision in the Arbitration Act which precedes this Bill. On the contrary, as the law stands in England and Wales, no necessary inference can be drawn that by choosing an English seat, and with it English law as the law which governs the proceedings in the arbitration, the parties also, by implication, have chosen English law as the law which governs the arbitration agreement itself.

The need for clarity was rendered all the more pressing by the decision of the UK Supreme Court in Enka v Chubb in 2020. In that case, it was held that the question as to the law applicable to the agreement was to be determined by applying English common law rules for resolving conflicts of laws. According to those rules, the law applicable to the arbitration agreement was the law chosen by the parties or, in the absence of such choice, the system of law with which the arbitration agreement was most closely connected.

The reasoning in that case—it was a majority decision, as mentioned earlier—was perfectly orthodox, but it seemed to open up issues which, in this context, were best avoided. It was argued that the better view was that where there was no agreement, the law to be applied to the arbitration agreement should be the law of the seat of the arbitration. That simple solution is what is now provided for in new Section 6A(1) of the 1996 Act, which is set out in Clause 1 of the Bill. This provision achieves the clarity that is needed, in line with the position in Scotland.

However, new Section 6A(2) adds a rider to what is set out in Section 6A(1), which perhaps need to be clarified. It states that:

“For the purposes of subsection (1), agreement between the parties that a particular law applies to an agreement of which the arbitration agreement forms a part does not, of itself, constitute express agreement that that law also applies to the arbitration agreement”.


The words “of itself” beg the question: what do they mean? What do they envisage as necessary to displace the default rule that, where no such agreement is made, the law to be applied is the law of the seat of the arbitration?

These questions arise because it may be said that the wording of subsection (1) is perfectly clear in itself; it already uses the word “expressly”. We are told there that the law applicable is

“the law that the parties expressly agree applies to the arbitration agreement”.

What, then, does subsection (2) add to what is already provided for in subsection (1)? Indeed, do we need that provision at all? I hope that, at some point, clarity could be given as to the reasoning behind subsection (2) so that we fully understand how it interacts with what is already set out in the clearest language in subsection (1).

That point aside, the wording of the other provisions in the Bill, all of which are very welcome, do not seem to me to give rise to any questions. I hope that the Bill will receive a Second Reading in due course and as soon possible, and I wish it well as it proceeds through its remaining stages in this House and in the other place.

Jurors: Mental Health Impact

Lord Hope of Craighead Excerpts

Tuesday 28th March 2023 Lords Chamber

[Lord Bellamy (Con)]

My Lords, I do not think that I can add to my earlier Answer that the Government are currently considering all options. Roughly 100,000 people serve on a jury every year; most, as I have just said, find the experience interesting and informative, and the Government will keep this under close review.

[Lord Hope of Craighead (CB)]

My Lords, it is helpful to see what happens in Scotland. The Scottish Courts and Tribunals Service provides specialist assistance in cases of particularly violent and distressing crimes. It is available in the court. It is available to jurors, who may not realise, even given the warnings that have been referred to, that the scenes they are going to have to view repeatedly as a juror as the evidence goes on are particularly distressing. Will the Minister have a look at what happens in Scotland and perhaps follow its example?

[Lord Bellamy (Con)]

My Lords, I will gladly look at what happens in Scotland—I believe there is a service provided through NHS Lothian. I am not sure I can undertake to follow a Scottish example; Northern Ireland has a counselling association associated with its employee assistance programme. We are exploring a number of options.

National Security Bill

Lord Hope of Craighead Excerpts

Committee stage
Wednesday 18th January 2023 Lords Chamber

[Lord Faulks (Non-Afl)]

With respect to him, the Minister is quite right: the application of ex turpi is very uncertain. There is a great deal of authority, and it is difficult to predict in particular cases whether they are going to rely on it. However, if there is going to be a statutory scheme then I return to my point: it needs to be a lot clearer so judges know how they are supposed to apply it.

[Lord Hope of Craighead (CB)]

I wonder if I may add a thought. One of the words that strike me in Clause 83(5) is “must”. If I were a judge at first instance, I would have to explain my decision, so I would have to say that I had applied my mind to the various factors. Having looked at the factors, I am still left in the dark as to what principle I should apply. I can look at them and understand them, but why should they affect the award? I do not think a list of factors is needed if the Government can explain the principle that should be applied. Is it that a kind of quasi-immunity should be given because of these various factors—some sort of overriding principle in favour of the Government’s security measures and so on that should be applied? I cannot devise that myself, but a list of A, B, C and D is not going to be helpful. We already have the factors there; it is the trigger, what the principle is that leads to the decision that the damages must be reduced, that is important. Otherwise, a first-instance court might say, “I’ve considered the factors and I can’t see any reason why the damages should be reduced”, and an appeals court will say, “Well, that’s perfectly right”, and we are left without any significant advance in this legislation. I hope I have made my position clear. I do not like lists of factors very much, but I like to have guidance as to principle.

[Lord Bellamy (Con)]

I can say that the principle is certainly not for the judge to be asking himself, “Should I be protecting the Government or the security services from actions for damages?” I am not drafting the Bill, and I will further consider the matter, but I would imagine that it is something like how far the claimant brought the situation on himself. That would be an ex turpi causa or contributory negligence type of consideration. However, I do not want to pre-empt the discussion any further, standing on my feet thinking aloud, because I hear what is being said: we want further precision as to how the courts are to go about this.

--- Later in debate ---

[Lord Bellamy (Con)]

My Lords, on that last point, I would need some notice of that question. It is not a point that I have so far had to consider.

It is the case that the court would have to be satisfied on the civil standard that that the claimant had been involved in terrorist wrongdoing. In accordance with normal statutory principles of construction, there would have to be some nexus between the United Kingdom and the terrorist wrongdoing. It is hard to imagine a case in the UK courts where there was terrorist wrongdoing without any nexus to the UK. That is as far as I can go.

I will see if I can get a bit further, if your Lordships will permit me. As far as the general position is concerned, when I said the Government wanted to say that the UK was not a soft touch, I meant that the provision makes it clear that in civil proceedings against the security services of the United Kingdom one has to be aware that the judge will consider whether the damages should be reduced. That is all I meant by that. I did not mean to say, and I do not think I can reasonably have been construed as saying, that the intention was to protect the security services from unwarranted claims for damages. The underlying principle is, I think, that if a terrorist person has brought it on himself then that should be considered, but let me reflect further on the relevant questions that noble Lords have asked.

[Lord Hope of Craighead (CB)]

Would the Minister consider the wording in Clause 83(4)(a) that says there

“need not be a causal connection”?

You can find that there is a connection, but it need not be a causal connection. I can understand that if there were a causal connection then one might get around to thinking that the damages should be reduced but, if there is not a causal connection, why should you consider a reduction in damages at all? That is one of the reasons why I am looking for a principle that gets over the point that a causal connection is not necessary. What else is there?

[Lord Bellamy (Con)]

The causal connection point is to do with whether there are national security factors in the first place. As to general question of what the court is to do, and whether we should have further guidance or precision in statute, that is perhaps a matter that we will need to come back to on Report to see whether we can get any further clarity.

Remote Observation and Recording (Courts and Tribunals) Regulations 2022

Lord Hope of Craighead Excerpts

Tuesday 19th July 2022 Grand Committee

[The Parliamentary Under-Secretary of State, Ministry of Justice (Lord Bellamy) (Con)]

My Lords, the statutory instrument before us regulates the remote observation of court and tribunal proceedings across our justice system. Essentially, this instrument builds on the very positive experience of remote observation during the pandemic and extends and makes permanent powers that were originally contained in the emergency coronavirus legislation.

The instrument was made using the “made affirmative” procedure on 28 June 2022. It is fair to point out that the scrutiny committee of this House has been somewhat critical of the use of the “made affirmative” procedure in this case, as distinct from the normal draft affirmative procedure. My understanding of what has happened is that the enabling legislation, which is the Police, Crime, Sentencing and Courts Act 2022, was already delayed in Parliament. The department felt that we should move away from the emergency legislation as soon as possible. The emergency legislation then in force in any event did not cover certain tribunals, including employment tribunals, the Court of Protection and certain other jurisdictions, so the decision was made to press on using the “made affirmative” procedure. None the less, the comments of the scrutiny committee have been duly noted and I have reminded the department of the importance of ensuring full parliamentary scrutiny of all legislation, including legislation such as this.

The Committee will be aware that, at the outset of the pandemic, our courts and tribunals moved swiftly to holding hearings remotely using audio and video technology. I can take this opportunity to pay tribute to HMCTS for its work in enabling that to happen and the principle of open justice to be maintained.

The legislation permitting remote observation was very well received, especially by court reporters, legal bloggers and others who do valiant work in reporting what happens in our justice system. It allowed the courts to offer, in effect, the digital equivalent of the public gallery.

The Government have therefore taken the decision to make remote observation a permanent feature of our justice system and expand it to all our courts and tribunals, save for the Supreme Court and certain devolved courts and tribunals, and to any type of hearing, whether remote, in person or hybrid. The order is made, with the concurrence of the Lord Chief Justice and the Senior President of Tribunals, by the Lord Chancellor.

The overall aim is to strengthen the transparency, openness and accessibility of the justice system. It is hoped that it will also have the incidental effect of strengthening the sometimes struggling profession of court reporting by providing modern, digital solutions, although public galleries of course continue to be available.

Various safeguards are contained in the enabling legislation which prevent participants making unauthorised recordings or transmissions of the proceedings. It is important to note that at the heart of the provisions is the principle of judicial discretion. It will be for judges, magistrates, coroners and tribunal members to decide on a case-by-case basis whether to provide transmissions of proceedings to members of the press and public.

This does not enable indiscriminate broadcasting or live streaming of proceedings, although that occurs in certain jurisdictions, such as the Supreme Court and the Court of Appeal. It enables transmissions of proceedings to be made to individuals who have requested access and have identified themselves to the court or, in certain circumstances, to designated live-streaming premises. There is no obligation on judges to allow transmissions to be made to remote observers during a traditional in-person hearing, but it is hoped and assumed that this technology will greatly facilitate access to justice for many. Around 7,000 hearings a week now rely on audio and video technology. That is one of the reasons why this statutory instrument was brought forward as early as it was. The Government seek to strengthen and support the principle of open justice and to increase the accessibility and transparency of our justice system as part of our wider programme of modernising that system.

[Lord Hope of Craighead (CB)]

My Lords, I am sure this instrument will be widely welcomed. As the noble and learned Lord has explained, this builds on experience, which it is good to do, in two beneficial ways: it is making a temporary arrangement permanent and it is spreading the technological discretion right across the whole system, which is a very good idea. One does not want gaps in an exercise of this kind.

I have a point to raise on the detail of Regulations 3 and 4, simply to try to understand how this system will work. As the noble and learned Lord has explained, this will be an exercise of a discretion. Regulation 3 gives two very sensible matters on which the court must be satisfied, particularly sub-paragraph (b) on technological arrangements and so on, before the discretion is exercised. I have no problems with that, because it is very obvious that this needs to be done. I imagine that, if the court is being invited to exercise a discretion, it would be up to the advocate asking for it to provide the material the court needs to be satisfied with the points set out in Regulation 3.

Regulation 4 is trickier. It is a list of very sensible points which we are told the court must take into account. This is another example of something that has been happening over the years; in the Judicial Review and Courts Bill in particular, there was a list of things that the court must take into account, which caused some concern—some said the word “must” was wrong because it opened the door to criticism of the court if it perhaps failed to take something into account that it should have done. That problem lurks under Regulation 4. How will one be satisfied that the court has taken all these points into account without the court going through the entire list and saying that it has looked at sub-paragraphs (a) to (f)? Have the Government any thoughts on how this will work in practice? Is it simply to be assumed when the court exercises discretion that it has done this, or should it be transparent and laid out in some kind of understandable practice that these points will all be addressed and that the public will be told why and how the court has been satisfied on them?

I raise this not to tease the noble and learned Lord; it is just that somebody, somewhere, might start complaining that, let us say, sub-paragraph (a) has not been taken into account because the magistrate or the judge did not say so. One needs to be a bit careful with these lists to be sure how the thing will actually work in practice. I simply throw that out for the noble and learned Lord to consider. Maybe a definitive answer cannot be given today, but somebody needs to think about it, and maybe guidance needs to be given to those who are exercising the discretion so that they do not fall into a trap.

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, we support these provisions. They will replace and extend the temporary emergency provisions included in the Coronavirus Act 2020 which allow for certain proceedings to be observed remotely and recorded. We believe in the principle of open justice and think this goes a step towards that and should be welcomed for that reason. However, we are aware that sometimes legal proceedings are very sensitive and painful, and attending a court or tribunal can be a difficult experience for people. For that reason, decisions regarding which types of proceedings should be broadcast or available to different people to observe should not be taken lightly. I am very aware that different jurisdictions will have different considerations in that respect.

Just for the record, I sit as a magistrate in the family, youth and adult jurisdictions, and I sat all the way through the coronavirus pandemic. I started off in the family jurisdiction doing court hearings by BT MeetMe and we graduated to MS Teams. We were making extremely difficult decisions which we felt we had no alternative but to make because of the circumstances which we found ourselves working in as a court.

Of course I agree with the objectives behind this statutory instrument, but I wanted to make one substantive point on the level of technology in these courts. It is highly variable between jurisdictions. When one is dealing with litigants in person, it is not unusual for them to be trying to do things on their mobile phones. Sometimes they have poor signal and all sorts of handicaps if they are trying to take part in court proceedings remotely. In my experience, when a court is 100% remote —that is, everybody is remote—it can be made to work. However, it is more difficult when it is hybrid—when some parties are in the room and others are not. Whether it is fair to go ahead with a hearing is ultimately a matter for judicial discretion, but certainly in my experience, hybrid hearings in various jurisdictions can be detrimental to people who are not physically in the room, and the court needs to be aware of that when it is deciding whether to go ahead with a case. Nevertheless, having said that, we welcome this statutory instrument and we will be happy to support it when it is put to a vote.

Covid-19 and the Courts (Constitution Committee Report)

Lord Hope of Craighead Excerpts

Wednesday 23rd March 2022 Grand Committee

[Lord Hope of Craighead (CB)]

My Lords, I was a late arrival to this inquiry by the Constitution Committee. I did not become a member until all the evidence had already been heard and the committee was considering its report. I was able to contribute a little to the discussion, having had some experience of court procedure and some awareness of the problems the pandemic had created for all court users, but the bulk of the work had been done by others. That enables me to say, without the risk of too much self-congratulation, that this is an excellent report. It has been brought to life very well by our chair, the noble Baroness, Lady Taylor of Bolton. It owes much to her skill and leadership, and to the work of the staff of the committee and to the many witnesses who gave evidence.

There is no doubt that the suddenness of the lockdown created severe problems. Much of this was because the justice system already faced significant challenges due to underfunding, as the noble Baroness pointed out. I look back to the cuts we faced in Scotland as long ago as the 1990s, when I was the Lord Justice General. They started with a request, shortly after I entered office, that we should cut our expenditure for that year by 2%. That was an incentive to cut out what was wasteful and we were able to do as we were asked, but it became increasingly difficult to maintain standards as the same request to cut expenditure was made of us year after year. We were being made to do more with less. What was the case for the system in Scotland was also such in England and Wales.

So there is a warning here, which the noble Baroness has issued and I endorse, and that experience needs to be taken very seriously. The fact is that underfunded systems are much less resilient to the kind of shock that was caused by the pandemic. But there is a bright side to this: like all shocks to the system, the pandemic was an impetus for the development and application of new ideas and the acceleration of improvements, some of which were already under way. The aim of this report was to explore what should and could be done as we seek to learn from that experience. The committee looked at the impact of the pandemic across the justice system and it made many recommendations.

The report was published on 30 March last year. The Government’s response, by the then Lord Chancellor, Robert Buckland QC, was issued on 28 May 2021. It was as good a response as we could have hoped for, as it covered the issues that we raised in commendable detail. However, as so often happens with these debates on reports, time has slipped by. Here we are, debating it some nine months after we received the response. This means that some of the information that was given then needs to be updated. I am sure the Minister will want to do that and I very much look forward to what he has to say.

I will concentrate on just a few points—first, managing the backlog. It was inevitable that the business of the courts would be interrupted by the lockdown and especially by the impact of the need for social distancing in the conduct of criminal trials. This impacted the whole handling of business in courts, which are usually attended by many people in close proximity to each other. This meant even more delays in cases coming to trial, even more increases in the time spent on remand, with all that that entails for the detainee, for whom remand is often a miserable existence, and risks to the quality of evidence.

The Government said in their response last May that, given that at that time the courts were still operating within these constraints, their indicators on current levels of timeliness were positive. That was the message we were given then. I conducted a search of the latest edition of Criminal Court Statistics Quarterly, from July to September 2021, which was published in January this year. It shows there was a continuing recovery in some areas, including a timeliness decrease in the magistrates’ courts of 5%.

The position in the Crown Court seems very different. The median age of outstanding cases had increased by 50% on the previous year. Around 23% of cases had been outstanding for a year on more, up from 15% in the third quarter of 2020. The statistics for the last quarter of 2021 are not yet on the website, but it would be helpful if the Minister could bring us up to date. I hope there has been some improvement and that priority has been given to custodial cases to reduce time spent on remand as far as possible.

Secondly, there is the use of remote hearings. A study of the HMCTS website shows that much has been achieved and full advantage has been taken of the available technology. As far as I can see, there is a lot of online guidance now on how to manage the various systems. I also welcome the guidance the Lord Chief Justice recently gave about how to conduct remote attendance by advocates in the Crown Court. This will help to maintain consistency in this area of practice.

But what is being done to help those who do not have access to online guidance—the disadvantaged elderly, the disabled, or those who are less able to understand what is on offer? We noted in our report, at paragraphs 279 to 280, that the then current plans to collect data on the protected characteristics of court users lacked “clear deadlines or targets”. Is that still the case? Are the data, always so crucial to proper planning, being kept up to date?

Then there is the need for more accommodation to reduce the backlog. It is good to see that the number of Nightingale courts is to be expanded by making available 30 more such places spread around the country. Some are being closed, but more are being opened. Can something be said about whether these facilities are enough to cope with the demand and why, as we are being told, they are to be available only until March 2023? Can we be assured that they will be available after that date if the backlog has still not been cleared?

Lastly, there is the question of remote jury trials. The provisions in Part 13 of the Police, Crime, Sentencing and Courts Bill—to enable criminal jury trials to take place if the judiciary thinks it acceptable—are controversial, but the report shows that such trials have been taking place in Scotland. It was impossible to accommodate juries in the accommodation that was available in the courtrooms there because of the need for social distancing. Of course, juries in Scotland are 15, not just 12.

Two possible solutions to the problem were rejected, as I believe they were in England and Wales. The first was to dispense with juries altogether during the period of emergency; the other was to reduce their size. It was decided that the jury should sit in a remote location, usually a cinema, while all the other participants, suitably spaced, were in the courtroom. It was decided that the judge should be there in the courtroom and not with the jury. Some people, particularly in this jurisdiction, have objected to this on the ground that the judge and jury should never be separated, but even a judge cannot be in two places at once. The most important thing is for the judge to be in the courtroom, where the witnesses are and where the trial is being conducted by the advocates.

I have been assured by the Lord Justice Clerk, Lady Dorrian, that the Scottish system has been working well, to the satisfaction of all participants. There is no question of the remote trials that the Bill is providing being used other than in exceptional circumstances, but the experience in Scotland is of some assistance. Are the Government continuing to pilot remote trials, as the report recommended in paragraph 220? If so, what conclusions are being drawn? In particular, is attention being paid to the issue that caused some concern of where the judge should sit under the new system, if there is a need to preserve social distancing? As I said, it seemed to work well in Scotland, with the jury sitting remotely from the judge and the judge being in the place where he or she most needed to be.

I am sure the Minister will agree that bringing the courts system under scrutiny, as the committee sought to do in this inquiry, has been beneficial. Of course, there remains the question of whether the system will be given the resources it needs to achieve the level of performance we would all like to see and to give it the resilience that it requires, but that, I suspect, is a matter for another day.

Barristers Leaving Criminal Practice

Lord Hope of Craighead Excerpts

Thursday 17th March 2022 Lords Chamber

[Lord Wolfson of Tredegar (Con)]

My Lords, we think that these changes will be a systemic change in legal aid: 3.5 million more people will be eligible for legal aid in magistrates’ courts and 2 million more people will be eligible for civil legal aid. We think that will help the Bar generally. Our other plans—for example, having more online hearings—mean that barristers are not spending money on travel and that a barrister can, for example, drop their children off at school and then attend a hearing 200 miles away.

[Lord Hope of Craighead (CB)]

The Minister has just mentioned travel. Has any thought been given to reimbursing barristers for the cost of travelling to and from the courts in which they are to appear, particularly in the case of junior barristers, for whom a substantial part of the fee is taken up simply by the cost of travelling to and from the court?

[Lord Wolfson of Tredegar (Con)]

The noble and learned Lord is absolutely right. We do look at the cost of travel for barristers. As I have just said, we hope that increased online hearings will mean that travel costs are essentially reduced to zero, with more money therefore going into barristers’ pockets. That is something that we are looking at. We have constant discussions with the judiciary on that. Ultimately, however, whether a hearing is heard in person or online is a decision for the judge, not for Government Ministers.

Judicial Review and Courts Bill

Lord Hope of Craighead Excerpts

Committee stage
Monday 21st February 2022 Lords Chamber

[Lord Beith (LD)]

My Lords, this is an area of complexity and difficulty and I think the difficulties are added to by the content of the Bill as the Government have brought it before us. It was not broken and it was not necessary to fix it in this respect. The noble Lord, Lord Anderson, has just explained how the previous use of common-law powers has dealt with this matter perfectly satisfactorily.

I share with the noble Lord, Lord Pannick, the dislike of anything that lessens the clear impact of the threat of judicial review on the public service. I say threat not because I am hostile to members of the public service but because it is a necessary discipline that things must be done within the law and they know that, if they are not, what they are bringing forward could well be nullified in the courts. The severity of judicial review is important to its role as the discipline for the rule of law.

There are, however, cases which do not fit easily into this pattern and which make an element of retrospection attractive. I think of licensing measures of various kinds—measures that render lawful things that would otherwise be unlawful. There are quite a lot of them in the area of game shooting, for example, and one caused quite a stir over the last couple of years: the power to shoot a predator bird if it is likely to enter an area where it would disturb the wildlife in a site of scientific interest which is subject to protection. In a recent example, there was indeed the threat of an action which did not take place in the end but which led Natural England to accept that its regulations were defective.

In those circumstances, you have people who have behaved in good faith and—they thought—lawfully, who, when the court in a judicial review determines that the action is not within the law, are left in a rather difficult position. You may say that nobody is going to prosecute them once it becomes clear that the law had been nullified. The case may already have started. However, in the real world, having been found to have acted unlawfully, even unwittingly, is not a good position to be in and not one that an employee wants to find themselves in. It presents some difficulties which I think Amendment 6, from the noble Lord, Lord Ponsonby of Shulbrede, attempts to address in so far as it affects regulations and delegated legislation. I will be interested to hear him set it out more fully and the Minister’s response to it.

That qualification—that we should remember the interests and concerns of people whose actions could unwittingly be rendered unlawful—is only a limited qualification to what, in my view, is the fundamental reason to object to what the Government are proposing, which is that the full rigour of the effects of judicial review should be something that the public service is always aware of.

[Lord Hope of Craighead (CB)]

My Lords, I find myself in the same position as my noble friend Lord Anderson and I would like to add just a few words to what he said.

One of the points made in the Explanatory Notes—and I am looking at paragraph 21—is that:

“The diverse circumstances of possible cases make it difficult to assume that any one remedy or combination of remedies would be most appropriate in all circumstances.”


My noble friend Lord Pannick invites us to address subsection (1), read together with subsection (4). If one asks oneself what these provisions are driving at, one has to bear in mind that there is a whole range of diverse circumstances, some of which may affect private individuals very much indeed; in which case, one would be very concerned that their remedies were not being cut out. Other cases deal with administration and circumstances where individuals probably are not affected at all, but the good administration or even the security of the country is very much at stake when a quashing order is made.

I hope I can be forgiven for coming back to the case of HM Treasury v Ahmed in 2010, which I was involved in. I mentioned it at Second Reading and when I was addressing this subject at an earlier stage. It is worth dwelling on that case because it is an illustration of a circumstance where the clauses that are under attack by these amendments could be valuable. It was a case where the Treasury had pronounced an order to give effect to our international obligations under the United Nations Act 1946, designed to freeze the assets of suspected terrorists. That was our international obligation and, understandably, the Treasury made the order. But when the case came before the Supreme Court, it was pointed out that there was no parliamentary authority for such an extreme measure. The Supreme Court unanimously decided that the order should be set aside.

I suggested in the course of the hearing and, indeed, at the end of my speech—the leading speech in the main case—that we should suspend the effect of the order to give time for the Government to remedy the situation in order to avoid the terrorists dissipating their assets. The risk was that the banks that were holding the assets under the order that was under attack would release them under demand from the terrorists. Clearly, that would not be desirable.

I was overruled by six to one for a reason which, I think, demonstrates why these provisions are needed. My noble and learned friend Lord Brown of Eaton-under-Heywood was in the majority of the six against me so perhaps he can explain more fully what their reasoning was. As I understand it, they were saying that if you quash the order you are declaring what the law always was; in other words, the Treasury order was of no effect at all—that was the effect of the order—and, as I think the noble and learned Lord, Lord Phillips, said, it would indeed undermine the effect of the quashing order to suspend it because it would be suspecting that there was something wrong with the decision to quash the order.

I could not understand that and I still cannot understand the sense of it. Indeed, one of the broadsheet papers, having spotted what was going on, asked: has the Supreme Court gone mad? I remember that certain people were rather discomfited by that but it was a very strange thing to do because there was no question of the banks releasing the money. But it was just as well to suspend the order so that they would be comforted by the fact that we were not actually making the order until Parliament had come in and produced a proper remedy to sort it out.

There you are. If you look at subsection (4), the “impugned act” was this order and what I wanted to do was to, in effect, allow the impugned act to be maintained—or, as subsection (4) puts it, “upheld”—so that the matter could be corrected. I cannot see anything objectionable to exercising the power in subsection (1)(b) in a circumstance of that kind. I wish we had had that power available to us at the time. It would have made my life a good deal easier in our discussions. It was not there and any idea that the common law could do that had really been exploded by the decision of the majority.

There is a problem and it would arise time and again if people were looking at the majority decision. There are, or could be, cases where for the protection of the public and in the interests of good administration the possibility of suspending the effect of the order so that the impugned act is regarded as valid until the defect can be corrected will be valuable. I suggest, with great respect to my noble friend, that it would be unwise to remove these provisions from the Bill.

[Lord Brown of Eaton-under-Heywood (CB)]

My Lords, I feel I have to rise at this juncture. I supported Clause 1 at Second Reading and continue to do so today. Like other noble Lords who have spoken since, the noble Lord, Lord Pannick, I suggest, puts the case against the clause altogether too high. I say that Clause 1 and the powers that it confers on the judiciary valuably would add to the judges’ discretion, their powers to do justice not just to the claimant in a particular case but on a wider basis. I, too, was in the Spectrum case—Lord Nicholls’ case with the noble and learned Lord, Lord Hope, and others—and it was not a case in which we thought at that stage and in that context we should exercise this power, assuming we had it, to develop the law.

I am going to disappoint the Committee because I have insufficient recollection—I shall come back to this on Report, I promise or threaten—to deal now with the point from the noble and learned Lord, Lord Hope. But I see the force of what he says and, in a rather different context, I, too, wish to reminisce. I go back even further, a quarter of a century, to a case called Percy v Hall. It was so long ago that Mr Keir Starmer was the second junior with a very white wig. It was a case about by-laws in respect of Menwith Hill, a listening post, a secure station for GCHQ and the Americans, and the by-laws, not surprisingly, precluded public entry.

--- Later in debate ---

Do not give the judges the power to say everything going backwards is fine. That is for the legislature or the Executive to sort out, not the judges. Give the legislature or the Executive the time to sort it out by a suspended quashing order, but do not give the judges the power to set the law to one side for the past. That is not their role. Their role is to determine whether or not the Executive have acted in accordance with the law. Their job is to hold them to the law, not to free them from the law. So, my strong objection is to proposed new Section 29A(1)(b), which is very much a remedy too far.

[Lord Hope of Craighead (CB)]

The noble and learned Lord was kind enough to refer to the case that I was referring to. However, I was suggesting that the court should have power, in effect, to direct that the order made under the United Nations provisions be treated as valid until Parliament could introduce a measure giving authority to the making of the order. That is indeed what happened afterwards; Parliament had to remedy the problem and some time was needed to allow it to do that.

The banks were holding on to the money; of course, they were not going to release it unless it was demanded by these suspected terrorists, but had they demanded it, it might have been quite difficult for the banks to refuse to release some money. My point was that something should be done to prevent that happening. The last thing one wanted was to give these terrorists the opportunity to make off and dissipate all the assets that had been protected by the order made under the international obligation.

The problem that the noble and learned Lord is grappling with is that there is a huge range of circumstances in which these provisions may come into effect, some of which, I quite agree, would be offensive. I would hope that the courts would be sensible enough not to exercise the power. There are various provisions later in the Bill, which we will discuss and which might be better removed to preserve the court’s flexibility. The question is whether the power should be there at all. My point was that, yes, it should be there because there can be cases where the interests of good administration, and possibly national security, require the possibility of doing that to prevent the event—or whatever it was that the defective order was designed to prevent—taking effect.

[Lord Falconer of Thoroton (Lab)]

New subsection (1)(a) deals with that point. The effect of the order stood until the Supreme Court set it aside, and everybody would accept that that is the position. If the Supreme Court had had new subsection (1)(a)—which it could have—it could have said that the order freezing the money continues for six more months and in six months’ more time it is then quashed. That is my understanding of a (1)(a) order: the quashing order means getting rid of the restraint on dealing with the money and does not take effect until the date specified in the order.

If the Supreme Court had said, “This order stands until six months’ time”, and a bank had then been approached and told, “Excuse me, the terrorists want their money now”, the answer would have been no because there would still, in effect, be a restraining order. It would have dealt with the problem that the noble and learned Lord posits; I think Clause 1(1)(a) would have dealt with it.

[Lord Hope of Craighead (CB)]

I recommend that the noble and learned Lord refers to Treasury 2 because I made exactly the point that he was trying to make and I was overruled by the others. They said, “You can’t do that”, and they would not make the suspended order. We are in Committee and we cannot prolong the discussion, but that is the problem that I was faced with. I tried to do exactly what the noble and learned Lord suggested but I was overruled. That is the problem that I think the Government are trying to address; the Minister will correct me if I am wrong.

[Lord Marks of Henley-on-Thames (LD)]

My Lords, I enter this discussion with some trepidation. Nevertheless, it raises very important points of principle, which have been essentially analysed in the last few minutes and the last few exchanges. As we have heard, the effects of Amendments 1, 4 and 5, in my name and those of the noble Lords, Lord Pannick and Lord Ponsonby, would be to remove from the Bill the power to make a quashing order prospective only. That is the problem: it is prospective only. We are not arguing for the removal of the power to delay. I will come back to that in a moment, but I start from the position that I agree entirely with the analysis of the noble and learned Lord, Lord Falconer, that a (1)(a) order could solve all the problems outlined by the noble and learned Lord, Lord Hope, and the noble Lord, Lord Anderson.

I venture to suggest that it is significant that when the committee chaired by the noble Lord, Lord Faulks, considered its recommendations for this type of order, it recommended only the power to delay, not the power to validate past unlawful action in the way that a quashing order made prospective only would do. Our amendments are premised on the proposition that, when the courts find that an Act, or a decision or regulation of any organ of government, is unlawful, it should not then be able to decide only to quash it with future effect. As the amendment’s explanatory statement puts it, and as the noble Lord, Lord Pannick, explained, the proposed power would thereby validate

“what would otherwise be quashed as unlawful”,

and unlawful for all purposes. The noble and learned Lord, Lord Falconer, emphasised the provisions in proposed new Section 29A(4) and (5) for the all-embracing effect of a prospective-only quashing order.

New subsection (4) makes it absolutely clear that the impugned act—which is ex hypothesi an unlawful act because a quashing order is being made—is to be upheld in any respect in which the provision under new subsection (1)(b) prevents it being quashed. That has no flexibility. If the noble Lord, Lord Anderson, and the noble and learned Lord, Lord Hope—as well as the noble Lord, Lord Faulks, as referred to in his speech—are seeking flexibility, a (1)(a) order is not the way to do it. Our Amendments 1 and 4 do not seek to debar a court on judicial review from permitting either officials to put right a decision taken unlawfully by remedying the unlawfulness or, as the noble Lord, Lord Pannick, pointed out, Parliament to alter unlawful regulations without the need to wield the blunt instrument of a quashing order immediately.

We suggest that the power to suspend by delaying the quashing order eliminates that risk. It mitigates the risk that a quashing order would have the effect of indiscriminately overruling all government action, for example a regulation, without distinguishing between what was lawful, or ought to be lawful, and what was unlawful. We say that enabling a decision to take effect on a delayed basis would enable the law or the government action to be corrected so as to regularise the unlawful government action. So, the quashing order, if it took effect immediately, would be senseless, but it must stand once the delay is over, to deal with the past unlawfulness. It deals with the Ahmed point, as suggested by the noble and learned Lord, Lord Falconer, and it is a far cry from the courts permitting past unlawful action to go uncorrected.

The prospective-only quashing order power undermines the central principle on which judicial review jurisdiction is based: government action is required to be in accordance with law, and if it is not in accordance with law, it will be corrected. The noble Baroness, Lady Jones of Moulsecoomb, sensibly conceded in her speech that there may be conditions or limits but they can all be dealt with by the power to delay. A crucial point that a prospective-only order ignores is that “corrected” means corrected for everyone; that is, all litigants, future and potential, even those who have not yet brought cases.

--- Later in debate ---

[Lord Hope of Craighead (CB)]

I shall say just a few words. It is very strange that there is nothing in the Explanatory Notes to explain why this presumption is in the Bill at all. I have searched the notes for guidance and can find nothing. That point aside, I stress the point made by my noble and learned friend Lord Etherton about the danger that lurks in proposed new subsections (9) and (10). If one is sitting in a court trying to work one’s way through the various phrases set out there, they create a number of traps—and certainly opportunities for the disaffected litigant to challenge the decision. There are value judgments to make about what is “a matter of substance”; you must address your mind to what is meant by the phrase “adequate redress”; and you must find whether there is a “good reason” for doing or not doing something. These are all things you must face up to, and you must explain yourself, because it is all qualified by the words “is to do” or “must do”. A judgment that is going to stand up to scrutiny in the Court of Appeal will have to work through all those phrases and explain what decision the judge has taken in order to support the decision that is ultimately made.

This remedial tool is being encrusted with so much stuff that it is almost unusable. It really is ridiculous to overwork to this extent the amount of directions being given to the judge. It is not necessary, it is bad legislation and it is extremely dangerous. It is not a remedial tool at all; the Government are trying to create something in their own interest, as has been pointed out already, and make it as difficult and dangerous as possible for judges to use this tool. It should certainly not be legislated for in this form. Therefore, I strongly support the removal of these two subsections.

[Lord Faulks (Non-Afl)]

My Lords, I feel tempted to respond to the contribution of the noble Lord, Lord Beith. It is absolutely true that this particular form of words does not find its way into our report in any way. That, of course, does not necessarily mean that it is a mistake to include it in the Bill.

The noble Lord, Lord Anderson, gives a choice that is not very inviting: either this is a mere surplusage, in which case it should go, or it is potentially something that an inexperienced judge might get wrong or feel compelled by to make an order that he or she would not otherwise want to make. I wonder if that does not slightly overstate the case. I should say that I am not wholly convinced of its necessity, but I do not think it anything like as damaging as has been described.

After all, before you even get to the question of whether the court is to make a quashing order, a considerable number of hurdles have to be surmounted, as do a number of considerations which we have canvassed during the course of the debate. So, if the “interests of justice”, or whatever term that the judge directs himself or herself to, have allowed them to reach the conclusion that it is not appropriate to make a quashing order, this question of a presumption, whether it is a weak or a strong one, simply does not arise. Of course, the judge can also simply say, “Well, I take into account subsection (9), but I don’t see a good reason for making the order”, having regard to whatever it might be. I do not see it as quite the same hurdle race that the noble and learned Lord, Lord Hope, described it as.

I will listen carefully to the Minister on why it is in there. I do not think it particularly harmful, but there is, as it were, enough here to allow the judges to do what is fair without necessarily including this particular presumption.

Judicial Review and Courts Bill

Lord Hope of Craighead Excerpts

2nd reading
Monday 7th February 2022 Lords Chamber

[Lord Hope of Craighead (CB)]

My Lords, it is a pleasure to follow the noble Lord, Lord Moylan. I will say a few words about the provisions in Part 1 of this Bill as I have had some experience of the issues raised by both clauses in it.

I refer first to Clause 1, on quashing orders. The Minister was kind enough to refer to the case of Ahmed v HM Treasury. In that case, the Supreme Court held that an Order in Council made under the general wording of the United Nations Act 1946 freezing the assets of people suspected of terrorism should be set aside because such an extreme step should be taken only with the express authority of Parliament.

I found myself in a minority of one against six in holding that our order should be suspended to give time for the matter to be corrected before the assets were dissipated. Those against me said that to suspend the order would undermine the credibility of the decision we had taken, but I found myself unpersuaded by that argument. In the event, Parliament was able to pass emergency legislation in time, but it was a close call. I think it would have been easier for me to carry the rest of the court with me if the power to hold that the quashing should not take place until a later date had been written in statute. There are, no doubt, other examples of situations where the power to do this would be desirable.

I am inclined to agree too with the proposal to enable the court to provide a prospective-only remedy where it holds that an order should be quashed. I gave a judgment some years ago in which I indicated, in agreement with Lord Nicholls of Birkenhead, that I was in favour of that remedy. We were dealing in that case with a common law rule, but the flexibility that this provision offers in the case of the quashing of orders made by the Executive, under which decisions of all kinds may already have been taken, is to be welcomed. But I share with others some concern about the wording of Clause 2(9), where the word “must” appears. Much will turn on the precise meaning of that word in the overall context, but one has to be careful. One should not deprive victims of the illegality of an effective remedy; there may be situations where that would be unjust. There is a question of balance here, which is best left to the judiciary, taking case by case.

Turning to Clause 2, I was a member of the panel of the Supreme Court in the Cart case, which it seeks to reverse, and I wrote the leading judgment in the Scottish case of Eba. In holding that decisions of the Upper Tribunal should be open to judicial review, we set the bar as high as we could when we were defining the test that should be applied. I appreciate that there may be a question as to whether the Government are right in saying that experience has shown that our choice of remedy has not worked, although the noble Lord, Lord Faulks, has given us much of what was in his report to indicate that that is the case. If that is so—and I am inclined to follow the noble Lord—it seems to be time to end this type of judicial review.

We would, in the result, be returning to the original recommendation by a committee chaired by Sir Andrew Leggatt, to which I referred in my judgment in Eba: that the appeals system should be used and that judicial review should be excluded. Some support from that recommendation can be found for making this change.

I add two other points. First, to describe the provision in Clause 2 as an ouster clause seems just a little bit too strong. It is reversing the decision in Cart and, taken in its context, the wording has to be as clear as it is to make it clear that there can be no return to the Cart decision. As the noble and learned Lord, Lord Brown of Eaton-under-Heywood, said, the Clause seems tailor-made to the context. It is certainly very far removed from the ouster clause in the Dissolution and Calling of Parliament Bill, in the context of the use of prerogative powers which causes some of your Lordships concern.

The second point relates to the extent provision in Clause 47(6). Coming from Scotland as I do, I tend to look at these clauses to see how much of the Bill I need read. If I am told that a part does not apply, then I need not trouble with it. The problem in this case is that one finds that Chapter 1 of Part 2 deals with criminal procedure, none of which applies in Scotland at all. I wonder why Clause 47(6) does not say so; it is saying, in effect, that it applies to Scotland. That really does seem to be a very strange way of legislating. There may be points to be made about Chapter 2 of Part 2 as well. I would be grateful if the Minister could assure me that the issue we have already discussed will be looked at again, in case some correction should be made.