Immigration Bill

Debate between Lord Lester of Herne Hill and Lord Brown of Eaton-under-Heywood

Monday 12th May 2014 Lords Chamber

[Lord Lester of Herne Hill (LD)]

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

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

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

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

My Lords, on Report, I added my name to those of the noble Lord, Lord Pannick, and the noble Baroness, Lady Smith, in proposing what is now Amendment 18. I did so because, consistently with what I had previously said in Committee, I was so strongly opposed to the United Kingdom lending itself to what has been called the evil of statelessness, with all the reputational damage which that would have occasioned to this country. It seemed to me at that stage imperative that there should be pre-legislative scrutiny, as Amendment 18 essentially proposes, before any such extreme position should be adopted.

On Report, I recognised that amending the legislation, short of leaving people stateless, could indeed well be justified. I will quote just a sentence from what I said at that point:

“By all means, let the Government reverse the decision last year of the Supreme Court in Al-Jedda and legislate, as Lord Wilson in his judgment there implicitly suggested, to allow us to deprive someone of their British citizenship, provided that they can then immediately acquire the nationality of another state, as, indeed, it was assumed in the course of the litigation in that case that Mr Al-Jedda himself could have done”.—[Official Report, 7/4/14; col. 1174.]

Noble Lords should remember that this power is to be available only in the case of someone who has gained his British citizenship by naturalisation and who then betrays the trust that we as a nation put in him and acts in a way which is seriously prejudicial to the vital interests of this country. Provided that that person can then become a national of another country so as not to be rendered stateless, as was assumed in Mr Al-Jedda’s case, I see no real objection to our depriving him of the protection that we ourselves earlier conferred upon him. The Government’s very welcome amendments seem to limit the power precisely to these circumstances. My understanding of the new paragraph that it is proposed be inserted into the nationality Act under Amendment 18A is that it is precisely the same as that of the noble Lord, Lord Pannick. I will not go into all the points again, but it is plain that it refers to a present entitlement and not simply to a right to apply. The language is “to become” a national of another country, not “to seek to become”. Provided that that is so and provided that the Minister gives—as I fully expect him to—all the assurances that the noble Lord, Lord Pannick, has invited him to give, the Government have properly given way on this critical issue and, if the matter is put to the vote, I shall support the Government.

Defamation Bill

Debate between Lord Lester of Herne Hill and Lord Brown of Eaton-under-Heywood

Thursday 17th January 2013 Grand Committee

[Lord Brown of Eaton-under-Heywood]

I was not proposing to speak to this amendment at all but it seems to me that there is an enormous distinction to be made between person A and person B as to which publication one is being denied by the Limitation Act the opportunity of proceeding in respect of. It is, with respect, not only whether the second publisher may be financially worth suing as opposed to the first publisher which must be catered to in this provision, but surely also the standing and reputation of the publisher. One can very well imagine a situation in which one simply would not be bothered to be defamed by person A because that person’s standing and reputation was itself so low and yet a republication by somebody of real repute and standing would trigger one’s intent to sue. So if this Amendment 44A is to be accepted, that sort of thing should be catered to, whether under the provisions of subsection 4, with a specific provision about material difference lying on occasion in the character and position, financially and otherwise, of the publisher, or in some other way, I leave to others to consider.

As to the other amendments, I agree with the view that Amendments 45, 46 and 47 are a simpler and more elegant fashion of expressing those provisions. As to Amendment 47B and the proposed insertion of new Section 5A, I am neutral as to how desirable it is to spell out these considerations which shall not be regarded as materially different. I would respectfully suggest that the expression should be not,

“shall not be deemed to be”—

it is not a question of deeming—but

“shall not be regarded as”,

but that is a very minor point indeed.

[Lord Lester of Herne Hill]

On my noble friend Lord Phillips’s Amendments 45, 46 and 47, I hardly ever argue with parliamentary counsel as being defective in the way that they approach their work. With respect to my noble friend and to the noble and learned Lord, Lord Brown, I do not think that it is an improvement to save two words by twice repeating,

“or a section of the public”,

when it is clear beyond argument in Clause 8(2) that protection to the public includes publication to a section of the public. I therefore oppose what Lord Wilberforce once described as “the austerity of tabulated legalism”.

--- Later in debate ---

[Lord Brown of Eaton-under-Heywood]

My Lords, there can be few occasions, particularly at five past five on a Thursday afternoon, when one feels entitled to tell, so to speak, a story from one’s own experience. However, I believe this to be just such an occasion.

Over a quarter of a century ago, I tried, with a jury, the case of the late Robert Maxwell suing Private Eye. It was a defamation case. The burden of the central complaint that Maxwell was making was that Private Eye had published a piece which insinuated that he had tried, by means of free holidays and the like, to bribe the then leader of the Labour Party—Neil Kinnock—to recommend him for a peerage: plus ça change. The case was opened—as all these cases invariably are—at great length and the witnesses started to go into the witness box. I came back from lunch on the fourth day to find a note from the jury which read, “Please, sir, can you tell us what a peerage is?”. On the fourth day of a case all about peerages they did not know what that meant, which did not increase my faith in, and admiration for, juries.

A later case over which I presided in the Court of Appeal was that of Grobbelaar, who secured a very large award from the jury—I cannot remember the exact amount but I think that it was about £100,000—on the basis that he had been libelled by a newspaper which had accused him of match fixing. Noble Lords will remember that he was a Zimbabwean who I think played for Liverpool at the time. We eventually held—we were upheld in this by the Appellate Committee of the House of Lords—that that was a perverse award. Again, that was not greatly to the credit of juries. Therefore, I confess that I am very strongly opposed to juries in defamation cases, not least when important people—celebrities—are involved. Juries tend to be mesmerised by celebrity. Indeed, that is true of defamation cases and there are many other instances—it is perhaps invidious to mention them—where that can be seen to be so in the libel context and perhaps more widely.

Under Clause 11 as drafted, defamation cases will be tried without a jury unless a court orders otherwise. The matter is left to the general discretion of the court. Obviously, only very exceptionally would it be thought a good idea to have a jury trial with all the disadvantages of such a trial in terms of length, expense, unreasoned judgment and all the rest of it. If I may respectfully say so, the problem as I see it in this proposed amendment is that it is, first, too prescriptive and, secondly, may well encourage the use of jury trial. In the original report of the Joint Committee, it was recognised in paragraph 25 that it would be undesirable to restrict this discretion—that is, the court’s general discretion—although it is fair to say that it went on to state that it should be possible to outline general principles. The general principle later referred to was that the circumstances in which the discretion should be exercised,

“should generally be limited to cases involving senior figures in public life and ordinarily only where their public credibility is at stake”.

The first problem with the proposed amendment is that it limits the discretion of the court because it states that:

“A court may only order a trial with jury”,

in this class of case, and there may be others. For that reason, it also raises in acute form the definition problem of deciding who is properly to be regarded as a senior figure in public life and when that person’s credibility is at stake. Perhaps more fundamentally, the amendment raises the very concerns that the Government in their response to the Joint Committee report refer to in paragraph 62. It was there said that:

“Concerns were expressed that including guidelines in the Bill could be too prescriptive and could generate disputes”.

I have already alluded to that as one of the problems. It goes on to say that:

“There would also be a risk that detailed provisions setting out when jury trial may be appropriate could inadvertently have the effect of leading to more cases being deemed suitable for a jury than at present”,

which would work against the committee’s view, one that the Government share, that jury trials should be exceptional. If this clause is amended as proposed, there is a risk that if somebody who claims to be a senior figure in public life whose credibility is at stake wants a jury or, indeed, the defendants to a claim by someone who is arguably within that description want a jury, then initially you have a dispute and a debate as to whether it is a case where it is permissible to have a jury and, if so, the suggestion would be that Parliament would have implicitly sanctioned the thought that that is indeed a case where it is appropriate, whereas I would suggest through my earlier illustrations that not even in that case would it generally be appropriate for a jury trial. I would respectfully oppose the amendment.

[Lord Lester of Herne Hill]

My Lords, I am so glad that the noble and learned Lord, Lord Brown, has just made that very important contribution. I agree with all of it and therefore I can be extremely brief. I could add recollections from my own casebook of cases where juries were wholly inappropriate. The particular one I have in mind is the Convery case in Northern Ireland, but I will not go into that now.

I want to make only a couple of points. The first is that in the 19th century, Albert Venn Dicey said in his Introduction to the Study of the Law of the Constitution that the best safeguard of free speech is the English jury, which is far better than all those charters of rights, whether continental or American. That was the view at the end of the Victorian era, and Fox’s Libel Act did of course place great emphasis on the role of the jury. It was that Act, as Sir Brian Neill reminded me, that led judges to be very concerned about not giving rulings on meanings too early because they did not want to interfere with the jury. I was surprised to discover, when acting for newspapers, that they no longer believed that trial by jury was a good safeguard of free speech. They preferred the reasoned judgment of a single judge which could be appealed, because it was a reasoned judgment, to the unreasoned and incapable of being appealed judgment of a jury. In my Private Member’s Bill, with Sir Brian Neill as my guide, I took the step of saying that, not always but normally, trials should be by judge alone and not by jury.

Much to my surprise, the free speech NGOs and others, with the one exception being Liberty for reasons I understand, all supported it, as did the entire press. I note, of course, what Alan Rusbridger has said, but I do not agree at all with making a special case for celebrity public figures. As the Minister will remember, recently in another context the House agreed to abolish the old common law offence of scandalising the judiciary. The Law Commission agreed with that, as did the senior judges. It could not be seen why senior judges should be made a special case to be protected from gross offence, rudeness and attack when nobody else could be. Were we to approve this amendment, we would be saying that there was a special privileged class, called the great celebrity or public figure, who were to be given special point under the legal system. That would create completely the wrong impression.

One of the most important reforms is abolishing a presumption of trial by jury. The reason is that that then enables the Government, in their procedural changes, with the judges’ co-operation, to make all kinds of changes that would not be possible if the normal mode was trial by jury. This is an extremely significant clause and I very much hope that the Government hew to it without amendment.