Judicial Review and Courts Bill

Debate between Lord Marks of Henley-on-Thames and Viscount Hailsham

Consideration of Commons amendments
Wednesday 27th April 2022 Lords Chamber

[Viscount Hailsham (Con)]

My Lords, may I make one observation about Motion C1, which I am minded to support? It will bring a clear recommendation to Parliament within a year. This seems to be a very strong recommendation for it.

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

My Lords, I thank everybody who has spoken in this short debate. I also thank the noble and learned Lord, Lord Mackay, and the noble Viscount, Lord Hailsham, for the spirit of what they said on the legal aid point. I thank the noble and learned Lord for his helpful suggestion. I am also grateful to the Minister for the way in which he opened this debate and for his careful response. I add my warm thanks for the contribution of the noble Lord, Lord Wolfson, during his time as Minister, and for his engagement with all of us on the Bill and on many others, going back to last year and to what is now the Domestic Abuse Act.

I will not press Motion A1 to the vote. I maintain my opposition to prospective-only quashing orders. I have read and appreciated the contribution of the noble and learned Lord, Lord Brown, to the Times newspaper on this point. I understand his point of view. He puts it as eloquently and as highly as it can be put. Nevertheless, there are two arguments.

At this stage, we should recognise the importance of the Government’s withdrawal of the presumption which would effectively have fettered the discretion of the judges. I will seek leave to withdraw this Motion on the basis of the description of the discretion as given by the Minister. I do so with confidence that the Government will apply the principles applied in the Canadian courts and develop the jurisprudence in a way that secures protection for all parties or potential parties before the courts. I beg leave to withdraw Motion A1.

Motion A1 (as an amendment to Motion A) withdrawn.

Motion A agreed.

Motion B

Civil Liability Bill [HL]

Debate between Lord Marks of Henley-on-Thames and Viscount Hailsham

Report stage (Hansard): House of Lords
Tuesday 12th June 2018 Lords Chamber

[Viscount Hailsham (Con)]

Will the noble Lord also observe that this clause is only permissive and does not require the Lord Chancellor to make an uplift?

[Lord Marks of Henley-on-Thames]

My Lords, I am very grateful for that intervention, which is absolutely right. The point about an uplift is that, if it is just, it should be given. We say that there may be a whole range of circumstances where it is clear that an award greater than the tariff figure is justified. We would regard it as far better than insisting on a finding of exceptional circumstances to permit the courts, as per our Amendment 20, to increase a tariff award where satisfied simply that it would be in the interests of justice to do so. Were Amendment 18 not carried so that Clause 2 survived, we would propose to pursue that amendment to improve Clause 3, which would then remain.

[Viscount Hailsham]

My Lords, I shall comment on an amendment that has not been spoken to—Amendment 12, which I think will be articulated by the noble and learned Lord, Lord Judge—and, more precisely, on the proposed new clauses, spoken to so admirably by the noble and learned Lord, Lord Woolf.

Amendment 12 seems manifestly sensible. Of course the Lord Chief Justice should be consulted by the Lord Chancellor. That is particularly important when one bears in mind that many Lord Chancellors nowadays are not lawyers and will therefore be entirely dependent on the advice of their officials, who might themselves not be lawyers. Therefore, it seems admirable that we should put into statute a requirement that the Lord Chief Justice be consulted. If the Minister says, “But of course he will be”, all I can say is that Ministers sometimes have a curious habit of forgetting the obvious and their obligations. For example, I was rather surprised about three weeks ago when the noble Lord, Lord Callanan, during the debate on Brexit, said that Ministers had never used the phrase “meaningful vote”. That was a curious lapse of mind, and it may well be that Lord Chancellors will forget the obligation to consult the Lord Chief Justice. Therefore, I am all in favour of the amendment and I hope the Government will concede the point.

Perhaps I may move more directly to the proposed new clause in the name of the noble and learned Lord, Lord Woolf, and Amendment 18. I do not have the experience of the noble and learned Lord but for many years I practised as a personal injury lawyer. I do not do so any more, so there is no need for me to identify an interest, but I used to do a lot of work in personal injury law. Indeed, I was instructed by my noble friend Lord Hunt and I was very grateful for the briefs in those days. Back then, we were informed about the level of damages by the guidance of the Court of Appeal and by the reports, which in those days were available in the current law citator. There really was no difficulty in operating within the parameters set by the judiciary.

That takes me to my objections to what the Government are proposing. The first is a very deep-seated reluctance to see the Executive or Parliament interfering with essentially judicial positions. I am bound to say that that informed my real reservations about the determination of Parliament to impose tariffs in homicide cases, set out in a schedule to the Act. I deprecated that. This is another example which we should be very cautious about. We need to ask ourselves what the essential characteristic of justice is. It is to respond to the individual and varied cases that appear before the courts. The effect of imposing a cap of this kind is to prevent the trial judge being able to respond to the particular aspects of the case in front of him or her, and in my view that is, by definition, unfair.

There is a further point that I venture to intrude on the observations of the noble Lord, Lord Marks. It is perfectly true that the Bill provides for an uplift, but the uplift requirement is discretionary on the Lord Chancellor; it is not mandatory. The Lord Chancellor may provide for an uplift in regulations but he or she does not have to do so.

I am sorry to be pedantic about this, but your Lordships will know that on many occasions I have spoken in pretty derogatory terms about the statutory instrument process that we have. This is another example. Let me acknowledge at once that we are doing it by the affirmative procedure, which is a lot better than doing it by the negative procedure, but the cap will be determined by statutory instrument. Who, pray, is going to set the cap? I can tell you: it will be officials. Unless the Minister of the day is particularly well informed and/or intrusive, the cap will be determined by officials without interference. I am bound to say that I find that a very unpleasing prospect.

If, therefore, the noble and learned Lord, Lord Woolf, is minded to press his amendment and his proposed new clause and to test the opinion of the House, unless my noble and learned friend is even more persuasive than he customarily is, I anticipate that I will support the noble and learned Lord.

Policing and Crime Bill

Debate between Lord Marks of Henley-on-Thames and Viscount Hailsham

Committee: 5th sitting (Hansard): House of Lords
Wednesday 16th November 2016 Lords Chamber

[Viscount Hailsham (Con)]

My Lords, I have a great deal of sympathy with what the noble Lord is saying. What troubles me slightly is the quantum of the compensation and, more particularly, whether there is any appeal on it. I think these offences are triable either way. In the magistrates’ court, is there an appeal to the Crown Court on the quantum contemplated? If the case is tried on indictment, where lies appeal from the compensation ordered by the Crown Court?

[Lord Marks of Henley-on-Thames]

My Lords, it is quite plain that there ought to be an appeal. I have not looked at the provisions and perhaps I can clear that up before Report. It is also quite clear that the appeal from the magistrates’ court on compensation would go to the Crown Court and from the Crown Court to the Court of Appeal, where the standard for an appeal is high but one would expect the judges to get it right. The noble Lord knows well that these issues of compensation are very much in the discretion of the trial judge, taking into account both the harm caused and the ability of the offender to pay the compensation. It is a perfectly good question and I undertake to look at it before Report.

Finally, Amendment 219 would simply add these offences to the list of sexual offences in respect of which a victim is entitled to anonymity. It is right that there should be anonymity for victims of revenge porn offences because these fall squarely within the category of sexual offences that are entitled to such anonymity. I think this is relatively uncontroversial. I beg to move.

[Viscount Hailsham]

My Lords, I give qualified support to what has just been said by the noble Lord, Lord Marks. I have a great deal of sympathy with the underlying argument which he has advanced. There is no doubt, and it is increasingly the case, that people are using private intimate photographs and films for the purpose of blackmail or revenge. Given that we have a Bill where we can extend the existing law, I see absolutely no reason why we should not extend the substantive offence of disclosure to one of intent as well. That is a perfectly sensible amendment and I would support it if given the opportunity.

Regarding extending the definition of the “damage” from distress to the enlarged category which the noble Lord spoke of, my feeling is that the word “distress” probably encompasses what he has in mind. However, I have no objection to the extension in the sense that it does at least remove any doubt that may exist and is certainly not harmful. I suspect it is not necessary but I am not against it.

I made a point about compensation when I intervened on the noble Lord and I will not repeat it at any length. In principle, I am in favour of a compensation provision, but I worry about compensation at large without any kind of regulation of the amount: that can mean injustice. I am far from clear on whether the Crown Court has an appellate role in respect of compensation awarded at the magistrates’ court, and I would be grateful if the Minister could help the Committee on this. I am even more in doubt as to whether the Court of Appeal would have a role in considering an award made at the Crown Court. Will my noble friend give some thought to this, maybe returning at some later stage? If there is no effective appeal, I have two suggestions. One is that we should impose an arbitrary cap—a ceiling—on the amount that could be awarded. That would prevent any obvious injustice. Secondly, and differently, we should consider restricting the claim for compensation to a claim made in civil proceedings, where the procedure is more clearly established.

Amendment 219 is about anonymity. I took the opportunity to look at the substantive Act and was struck by the very large number of examples which are covered by anonymity. I can see no reason of principle, and rather a lot of advantage, in accepting the amendment put forward by the noble Lord to extend anonymity to this category of case.

--- Later in debate ---

[Viscount Hailsham]

My Lords, notwithstanding the very eloquent speech made by the noble Lord, Lord Pannick, I am in favour of this amendment, subject to one or two points I am going to make. If the noble Lord will forgive me, most of his points are drafting points, which could be dealt with by way of further discussion and a further amendment. I take the point that there are defects in this amendment but in my view, the principle that the noble Lords, Lord Paddick and Lord Campbell-Savours, are aiming at is correct and the arguments that have been advanced by the noble Lord, Lord Pannick, are not correct.

I have two reservations. First, I note that one of the principal mischiefs that this amendment should capture is not dealt with at all: communication by police officers to the press, often for money. I know perfectly well that that is covered by existing legislation and I have no doubt that communication by a police officer giving private information regarding accusations is contrary to the disciplinary code, but if we are moving an amendment of this kind, we should seek to catch the very serious mischief of police officers giving private information to the press.

[Lord Marks of Henley-on-Thames]

My Lords, is the noble Viscount, Lord Hailsham, saying that the practice of police officers giving information to the press after a person is accused by them of an offence is not covered by the amendment as drawn? I should have thought it was.

[Viscount Hailsham]

I really do not think so because it is a question of publication. What is meant by “publication”? It is, I think, different from communication. I think “communication” is a private communication—made, for example, by a police officer to a journalist—and “publication” is a more overt act which happens via the press, the television or whatever. I think they are different. Perhaps that matter could be considered by the noble Lord, Lord Paddick.

The second point concerns gossip. The noble Lord, Lord Pannick, is quite right about this. There will be gossip. Among the great mischiefs are social media and foreign communications, where there is an awful lot of identification. That is a form of gossip that is simply not touched by this amendment and probably cannot be. That is a defect, which I acknowledge even though I support the broad thrust of the amendment.

On the broad thrust, I find the arguments advanced by the noble Lords, Lord Campbell-Savours and Lord Paddick, very persuasive. Harvey Proctor was an old colleague of mine in the House of Commons. We all know that he lost his job and his home, and his reputation has been irreparably damaged by what happened. The publicity regarding Sir Edward Heath is simply absurd but it will taint his long-term reputation. I was PPS to Lord Brittan when he was Chief Secretary to the Treasury. His last days were darkened by the allegations against him, which were wholly groundless. There is therefore a serious mischief that the Committee should seek to address.

The noble Lord, Lord Pannick, has made some important points here but, if he will forgive my saying so, he seems to ignore the principle of proportionality, which should come into play. If we are right in supposing that this is a very serious mischief, we should be cautious about allowing drafting points to stand in the way of confronting it. The question of witnesses coming forward is a proper point. There is no doubt that on occasion, publicity enables witnesses to come forward; that is absolutely true. Surely, though, the proviso in the amendment that would enable the police to go to a judge for the authority to disclose the fact of the accusation addresses that point. Maybe it could be improved upon but the concept of allowing the prohibition to be lifted by a judge is surely a sensible one.

The point the noble Lord makes about the accused person being prohibited from receiving exoneration is a perfectly good one and has substance, but actually it is a drafting point and it would take the noble Lord and myself but a few moments to add the necessary words to the amendment to cover it. I ask the Committee to stand back, look at the extent of the mischief and ask itself whether the drafting objections that have been put forward are sufficiently weighty to stand in the way of our doing justice.