Imprisonment for Public Protection Scheme

Lord Brown of Eaton-under-Heywood Excerpts

Thursday 13th October 2022 Lords Chamber

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

My Lords, that was a masterly introduction to this debate, and I am honoured to follow it. As the noble Baroness, Lady Burt, says, this report is to be welcomed greatly.

Your Lordships’ House has long recognised the shocking injustices suffered by all those sentenced under this scheme—injustices continuing and growing 10 years after its abolition. We have hitherto been given to understand that the other place, the all-powerful elected Chamber, is unpersuadable; we have been told they do not have the appetite to change the law in a way which could put at liberty some who could reoffend and who are currently—however unfairly and most of us regard it thus—lawfully locked up.

This House of Commons report is not so hard-hearted, but nor is it soft-hearted; rather, it is hard-headed. It contains a masterly analysis of the wrong and what is necessary to put it right within the system. At last, it is recognised that the scheme has resulted in a gross injustice. IPP sentences are effectively life sentences by the back door. The committee describes it as “preventive detention”, imprisoning people

“on the basis of what they might do, rather than on the basis of what they have done.”

As the committee recognises, the only actual, long-term, final solution is for those still affected to be resentenced according to just principles.

Of course, everybody ever sentenced to an IPP sentence—between April 2005 and December 2012, until its prospective abolition under LASPO—is still subject to this injustice; not only those still detained, many for years beyond tariff dates and several beyond the statutory maximum for their offence, but everybody. That is a total of 8,711 IPPs, the only exceptions being the tiny handful who have finally secured the discharge of their licences by definition, 10 years after their initial release. All these are to be regarded as victims of an unjust scheme, who desperately need far greater help than most have been getting in order to secure and then retain, at long last, their liberty. As the committee recognises, what is needed now is an intensive, well-resourced, new scheme, custom built to maximise the prospect of safe and sustainable release for this whole cohort of our unfortunate fellow citizens. The report points the way ahead.

Judicial Review and Courts Bill

Lord Brown of Eaton-under-Heywood Excerpts

Consideration of Commons amendments
Wednesday 27th April 2022 Lords Chamber

[Lord Pannick (CB)]

My Lords, may I pay tribute to the noble Lord, Lord Wolfson of Tredegar, on his resignation as Minister of Justice? He played a significant role behind the scenes in ensuring that the Government have made the welcome concession of agreeing to the amendment from the noble Lord, Lord Anderson, to remove the presumption. The noble Lord’s resignation has confirmed, if there were any doubt, his commitment to the rule of law. His resignation will be welcomed only by his senior clerk at One Essex Court Chambers in the Temple as he returns to the commercial Bar, as well as to the Back Benches.

On topics as diverse as the Cart jurisdiction and breastfeeding, the noble Lord’s contribution as a Minister was marked by his hard work, his eloquence, his ability to respond constructively to the concerns of other noble Lords, and his wit. He is an enormous loss to the Front Bench and I very much look forward to his Back-Bench contributions.

As I said in Committee, echoing the words of the noble Baroness, Lady Jones of Moulsecoomb, the only thing to be said in favour of Part 1 of this Bill, on judicial review, is that it could have been a great deal worse. I cannot work up any greater enthusiasm at this stage for these provisions. The Bill, in Part 1 on judicial review, is not quite as much of a damp squib as the efforts of a former Lord Chancellor, Chris Grayling, in his infamous Social Action, Responsibility and Heroism Act 2015—but it is a close call.

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

My Lords, I rise diffidently to agree wholeheartedly with the approach of the noble Lord, Lord Anderson, to this legislation. I strongly support Motion A; I cannot, I am afraid, support Motion A1 from the noble Lord, Lord Marks. I suggest that it would in fact compromise and complicate what is a valuable, new, flexible, broad power that gives a judge the ability to make whatever order he or she thinks is best calculated to do justice in the individual case, and to meet the problem that we have encountered over many years of not having any power to validate retrospectively anything that has happened in the past. I do not know whether anyone noticed the piece I wrote in the Times about my noble and learned friend Lord Hope’s Ahmed case, but that was a classic case in point which shrieked out for this new power.

So there it is: orders can now be made subject to whatever limitations or conditions the judge thinks right and appropriate, and I respectfully suggest that this is so much better than the approach of the noble Lord, Lord Marks, with whom I am almost always in agreement—but surely not on this. He prefers retrospective legislation, but how unwieldy, inflexible and incapable of being adapted to the individual case that is, and how unwelcome as a whole we consider retrospective legislation—so I support Motion A.

Police, Crime, Sentencing and Courts Bill

Lord Brown of Eaton-under-Heywood Excerpts

Lords Hansard - part one & Committee stage
Monday 22nd November 2021 Lords Chamber

[Lord Falconer of Thoroton (Lab)]

What I am saying in putting forward this provision is that you want to send a clear signal that a certain sort of evidence is not admissible. In order to make it easier for people to come forward, you need to have much clearer lines than we have had previously. There has been a whole variety of evidence that English law has said is not admissible, even though many people would think it was probative, because it is the safest way overall to deal with trials—it is the safest way to ensure that an appropriate balance is struck between complainant and defendant.

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

Surely the noble Lord and the noble and learned Lord must be at cross purposes. The noble Lord, Lord Pannick, put it on the basis that the witness is saying, “I wouldn’t do this, not only with this man but I wouldn’t do it with anybody, ever”, and the evidence is that she has. Is that perjury simply to go unresponded to in any shape or form?

[Lord Falconer of Thoroton (Lab)]

I am afraid I did understand what the noble Lord, Lord Pannick, said. It is exactly as the noble and learned Lord, Lord Brown, has put it. The noble Lord, Lord Pannick, is right in the way that he analysed this amendment: it would exclude that evidence. I understand that that is the consequence, and I am saying it is a good thing.

--- Later in debate ---

[Lord Hunt of Kings Heath (Lab)]

My Lords, I have added my name to these two amendments and I hope the Minister will agree to take them away. I did so, first, to support my noble friend Lord Bach, and, secondly, not so much to agree with the noble Baroness, Lady Jones, on her actual amendment but to try to develop a debate on the role of police and crime commissioners. As my noble friend has said, unfortunately we have had little opportunity to do so since the Bill in 2011 and the Act that was subsequently passed came in.

As the noble Baroness, Lady Harris, said, I led for the Opposition at that time. We were very glad to work with her and opposed the concept. It was defeated in the Lords and the Bill went back to the Commons without a reference to police commissioners, which was subsequently put back in. The fear at the time was always that it would risk undermining tolerant policing in this country by bringing political partisanship too close to police operational matters. I suggest that there is still that fear around the way in which PCCs have operated. There have of course been notable successes—I mention my noble friend Lord Bach, Dame Vera Baird and David Jamieson in the West Midlands as examples—but there have been failures too. A number of police and crime commissioners have had to resign prematurely under what one might call somewhat unfortunate circumstances.

During the passage of this Bill we have debated policing quite extensively, particularly in relation to lamentable performances on domestic violence. My noble friend Lord Bach, whom I rarely disagree with, thinks that nine years is too short a period on which to make a judgment. However, I think I am entitled to point out that on the cultural issues which are very much at the heart of police failures in relation to domestic violence, I cannot see much evidence that this new leadership has been able to tackle those effectively.

A two-part review of PCCs is going on at the moment. The first part reported in October last year and there is a second review. It is interesting that this review is not getting anywhere near the heart of the issues around PCCs. It is also interesting that, in the first review, a lot of reference was made to the dismissal process for chief constables, which reflects the fact that there has been a fallout in many areas between the PCC seeking to exert his or her power and the chief constable. There has been instability. Because of this, there is a shortage of candidates for chief constable roles—not surprisingly.

Of course, the tension between chief constables and police and crime commissioners was built into the legislation. PCCs were there to provide political leadership for policing in their area, but they were not responsible for leading their force. Police chiefs retained operational independence, making independent decisions supposedly free from political interference on operational matters. Of course, there is no definitive list of operational matters, nor an expectation that operational decisions should be free from political scrutiny altogether. Inevitably, a grey area was built in between policing matters that PCCs can influence and those that are at the operational discretion of chief constables.

Going back to our debate on the Bill, where policing culture and failures in domestic abuse have been so evident, it is interesting that Ministers and noble Lords who have debated this extensively have laid responsibility clearly at the hands of chief constables. PCCs have hardly had a mention. Why not? If PCCs cannot get a handle on crucial issues such as this, what on earth is the point of them in the first place?

Obviously, the model that the Government started with was a US model. The logic, when they first brought in the Bill, was for PCCs to be given much more power than they have been given because of their democratic accountability. However, the Government backed off, partly through fears of politicisation, but also because of the usual Whitehall paranoia about letting go. One of the stated aims of PCCs was for police forces to stop looking up to Whitehall and be more accountable locally. If anything, in the last 10 years, we have seen more and more interventions by Home Secretaries into the work of chief constables and pronouncements on strategic policing requirements. Home Secretary interventions have become the order of the day. The end result is utter confusion as to where accountability lies, ambiguities and tensions between the role of the PCC and the chief constable and a sense that policing lacks effective direction.

I look forward with interest to part two of the review that the Government are undertaking but, when one looks at the areas that they are inquiring into, it seems that none of them goes to the heart of the issue of what PCCs are really for and whether they are going to be given the powers to carry that out. That is a matter of regret.

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

My Lords, I briefly but strongly support Amendment 292D, but not the other two—I say that without needing much elaboration. I have two main reasons for supporting Amendment 292D. First, it is promoted by the noble Lord, Lord Bach, for whom I always have the greatest regard. He now has the expertise and experience of this job, so his judgment on it, as he knows what he is talking about, is surely worth listening to. We should take advantage of the expertise that he now has in this field and his appreciation of the crunch issues that are involved.

The second main reason is this: I am generally against these absolutist or purist positions such as those adopted uniquely—it appears—in this legislation. Once you have sinned, you are out for life. It is ridiculous. Some small measure of discretion or flexibility is generally an advantage. Of course, it is unlikely to happen that often, but we have surely heard two wholly compelling instances where it is a flagrant injustice to say to these people, now in maturity, having served the public, that because of one slight error in their youth and having strayed once they are never eligible again. This is a point of genuine principle: we ought not to pass this opportunity of putting it right.

[Lord Hogan-Howe (CB)]

My Lords, I support the noble Lord, Lord Bach, in his amendment. He could have added police officers to his list of occupations that would not have been barred. He chose not to, but it seems rather odd that only police and crime commissioners can be excluded entirely by a previous conviction.

I do not agree with the amendments proposed by the noble Baronesses, Lady Jones and Lady Harris, and the noble Lord, Lord Hunt. I do not know whether I have unique experience, but certainly I have experienced both police authorities and PCCs as a chief constable and then as a commissioner. Having been the person held to account, I am probably the person to whom you would least listen—I may have the most prejudice. I find both roles to be about equally effective and, frankly, equally ineffective.

Police authorities had the great benefit that they were a broadly based group of people, rather than one person. They were not directly elected, but they tended to create an awful lot of committees. The consequence of creating committees is that things take an awfully long time: that may not be understood here, but people take a lot of time to make decisions. That was my experience. Police and crime commissioners, where you could get a good relationship, tended to make quicker decisions, but, frankly, in somewhere like London, they struggled to be representative of the nearly 9 million people or to hold all the views—particularly of minorities —through one person. That was a challenge, but it could be overcome at times. Certainly in London, which was my latest experience, there has been a plethora of accountability regimes, whether it be a police and crime commissioner selected by the mayor, the Home Secretary, 32 local authorities, the police and crime scrutiny committee and a number of committees of Parliament. I am not sure that that made it better accountability; it just made more of it.

We ought to think carefully about how we govern the police. I am not sure that this is the best way to address that problem. It could be improved, but I am not sure that this is the best way. There are three reasons for this. On the point made by the noble Lord, Lord Hunt, is the fact that you are only getting one applicant for the role of chief constable good evidence that this is because of PCCs? It may be, but I think that it is more to do with the fact that the officers who are applying believe that the solutions have already been determined. They believe that the police and crime commissioners, usually with the sitting deputy, are going to select that person, whereas in the past, with police authorities, at least there was a broad spectrum of people and it was far harder to arrange a conspiracy. I think that it is good evidence, but perhaps for the wrong reason. It is a problem that needs to be addressed and it is not helping the police leadership to develop in the future.

My objections to the amendment are around logistics. If we end up having a referendum at every PCC election, the danger is that we will end up around the country with a mixed tapestry of governance. In some places it would be PCCs and in some places it would be police authorities. We might even flip them at the succeeding election, although I guess that you would not get one if you had a police authority—there would not be another opportunity to have a referendum and then reselect a PCC.

In our current police tapestry, we have 46 forces, 43 of which have local accountability. This has to happen nationally, whether it be the police authorities or PCCs; we need to make national arrangements to govern these things. We already have a complicated arrangement: with 46 governance sets—with different governance sets as well—that is a tapestry too far.

If these things are to be changed, we should look at it properly, and in the round. We should see what has worked and what has not to make improvements. What we should not do is decide it locally. This is a role for government; the governance of the police should be set centrally. There may be local affiliations, but the Government have responsibility to set the governance of the police. As I have said before, I would have far fewer police forces, which might make this a little easier. Whether one agrees with that or not, I would not have a referendum every time a PCC is elected.

Terrorist Offenders (Restriction of Early Release) Bill

Lord Brown of Eaton-under-Heywood Excerpts

2nd reading & 2nd reading (Hansard) & 2nd reading (Hansard): House of Lords
Monday 24th February 2020 Lords Chamber

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

My Lords, although down the years I have had quite a lot of experience of terrorist cases, I recognise that I am already out of date and lack the enormous expertise of several noble Lords who have spoken in this debate—and several more who are yet to speak. I will not name them: that would be invidious, as it would imply that others lack that expertise.

I will confine myself at this stage—Second Reading—to one or two generalities, and will leave to others discussion of certain important questions that arise, and the balances that need to be struck. One that has already been identified by the noble Lord, Lord Anderson, is on the one hand the benefit of keeping terrorist prisoners incarcerated for the maximum period permissible under their existing sentence, and on the other hand ensuring a post-release period on licence that may help to reduce the chance of reoffending.

There are a number of other such difficult balances to strike—tensions within the legislation. The noble and learned Lord, Lord Falconer, raised the question of the Parole Board coming into the picture at the halfway stage, as opposed to two-thirds of the way through. I am not sure that he was right to say that if the Streatham prisoner had failed to convince the Parole Board at the appropriate stage, he would not have been freed. He would have been freed; he had a determinate sentence and would inevitably have come out at the end of it.

The broad generalities I want to voice are these. First, having looked quite carefully at the Strasbourg jurisprudence on this, including the various cases discussed by the noble Lords, Lord Marks and Lord Pannick, I am reasonably satisfied—like the noble Lord, Lord Pannick —that there is no serious risk of this legislation being held to contravene Article 7 of the convention. Notwithstanding what the noble Lord, Lord Anderson, said about a past decision of mine—a case called Stellato, I think—it would be my hope and expectation that our own domestic courts, in applying our own historic common law, would not feel it appropriate to be “plus royaliste que le roi”—in other words, to go further than Strasbourg in condemning what is proposed here as being outwith the powers of the legislature.

My second generalisation is that the problems posed by terrorist offenders are different in kind from those posed by other categories of offender. Of course it is true that some sex offenders, and others with a history of violence, have an undoubted proclivity towards those peculiarly destructive and distressing forms of criminality. But what so frighteningly distinguishes terrorists is their zealotry—their compulsion to kill and maim in furtherance of fixed doctrinal beliefs. They are driven to commit atrocities even at the cost of sacrificing their own life. They pose, therefore, a specific and singular threat.

Thirdly, while I am essentially supportive of the Bill’s approach—keeping terrorists longer under lock and key and releasing only those who prove that they are genuinely no longer intent on causing mayhem to others—I shall continue to espouse the cause of other types of criminal, notably most of those remaining under the IPP scheme, who are still detained seven and a half years after it was abolished, as the ill-starred project that it was, often having served 10 or 12 years beyond their due punishment. Their plight should continue to be examined sympathetically and not regarded as being in any way overlain by the terrorist threat of one or two others in that same category.

Finally, this country still has far too many indeterminate-sentence prisoners and life prisoners: more than double the numbers in Italy, France and Germany combined. As we have debated often enough in this House—or perhaps not often enough—we also have grossly overcrowded prisons, resulting in the well-known problems of violence, self-harm, appalling attacks on fellow inmates and prison officers, and problems of substance and drug abuse, which in turn prevent engagement with appropriate rehabilitation measures. So, although I am, as I indicated, supportive of the Bill in the round, we need to recognise, and try to find the means to ameliorate, the inevitable effect that this legislation will have, both on the number of indeterminate sentences and of course on overcrowding in prisons.

European Union (Withdrawal Agreement) Bill

Lord Brown of Eaton-under-Heywood Excerpts

Committee: 2nd sitting (Hansard) & Committee stage & Committee: 2nd sitting (Hansard): House of Lords
Wednesday 15th January 2020 Lords Chamber

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

My Lords, although I am one of the few legal Cross-Benchers who has not been Lord Chief Justice, I too want to say a few words in support of these amendments.

I wonder whether my noble friend Lady Deech has recognised the precise area that we are concerned with here, which is retained EU law: that is, decisions of the European Court of Justice pre the end of the transition period, not decisions to come thereafter which can merely be taken account of and do not bind. So we are concerned with the actual decisions taken before we finally part ways.

Under our system, it is normally for Parliament, of course—and to a very limited extent for Ministers, by secondary legislation—to legislate: to declare what the law is, almost invariably for the future. Only rarely do we give law retrospective effect. But in 1966, as I am sure we all know, the practice statement in the House of Lords said for the first time that we could depart from what has otherwise been the sacrosanct principle of stare decisis—of precedent in the interests of certainty and finality—subject to a rigorous test. It is a rarely used power, now transferred to the Supreme Court and indeed, by a decision that I wrote in 2007, to the Privy Council. In certain limited circumstances, the courts can depart from their previous decisions.

The sort of consideration or test is whether the earlier ruling is now judged to have been plainly wrong, and how long it has stood. If it is recent, that is one thing, but if it has stood for a long time there may be many who have acted in reliance on it. Let us not forget that when the court exercises this power it does so by declaring what the position is and always has been. It therefore applies retrospectively and leads to cases where those affected by it, although they may run into time difficulties, may need leave to appeal, or to bring proceedings, out of time. They may then say, “That is now established as the law and therefore we would like to invoke it.”

In the ordinary way, we only use this power where the individual case leads to manifest injustice or is contrary to public policy, or where the established line of authority unduly restricts the development of the law. In a very interesting and powerful piece in the Spectator last week, one of the excellent contributors to the Policy Exchange, Professor Richard Ekins, quarrels even with Section 6(4) and (5) of the 2018 Act, which already provide in effect for the Supreme Court, and in certain circumstances the High Court of Justiciary in Scotland, to have the same powers to reverse EU-retained case law; in other words, not to follow what they would otherwise need to follow, the already decided ECJ decisions, in the same way as they can not follow existing domestic law.

Professor Ekins suggests that that

“would introduce unnecessary legal doubt and improperly empower the Court to make new law.”

I see that point, of course, although I would not deprive the Supreme Court of this power. However, it strongly reinforces what he already said in the article in support in effect of Amendment 21: that it would be absurd for some lesser body as yet unknown, and I rather suspect not quite thought out, to decide who should, at a lower level, be authorised by ministerial regulation to depart from retained EU case law. That would indeed be a recipe for chaos, confusion and uncertainty.

As to the other main point, Professor Ekins wants all the power to change EU case law to be either the power of the Minister to promote by way of primary legislation—which of us would quarrel with that; it is plainly the correct approach?—or for the Minister by secondary legislation. That is where the real problem lies. If the proposed change of legal direction from earlier rulings of the ECJ involves obvious fresh policy choices, such as the sort of things instanced by my noble friend Lord Anderson, it will affect some already established important legal principle and is plainly an issue for Parliament by primary legislation. Secondary legislation could be appropriate here only if it is demonstrably necessary either to work cogently with some clearly established new post-Brexit situation or something of that character.

That said, I share Professor Ekins’s objection to involving individual judicial officeholders, however senior and distinguished, in the process of ministerial law-making. This again chimes with what my noble friend Lord Anderson said. I support both the amendments. Let the Supreme Court, as under the 2018 Act, have this rare power that will be seldom exercised, but mostly it should be for primary legislation to depart from well-established legal principles.

[Lord Judge (CB)]

My Lords, like the noble and learned Lord, Lord Neuberger, I too would welcome some clarity in this field, but I do not think that clarity can be provided by Ministers creating regulations behind the scenes and then serving them up to the House of Commons, which has not rejected any ministerial regulation since 1979, or this House, which has rejected them on minimal occasions, and by doing so in 2015 apparently caused a constitutional crisis. The issue is very simple. Of course there should be clarity and of course it should be provided by Parliament. We will now be considering what is domestic law. We call it EU case law, but the whole point of the process that we are going through is that it will become British EU-retained law. It will be British law and no longer EU law. It is that which will be interfered with.

I could spend some time going through the doctrines of precedents. They are very clear and simple. I remind the House that they have provided a way of achieving legal certainty. You can conduct your affairs with a degree of legal certainty. You can conduct your business, conduct your tax affairs and deal with foreigners outside this country. They tend to want to come to this country because the law is certain and clear. Yet simultaneously, and it is one of the great glories of our system, we have common law that goes back to 1189 that has enabled the law to develop, flourish and adapt as and when it became appropriate and necessary to do so. The greatest tribute to the common law is that it carries the day in all English-speaking countries. It is still used in India and Australia—adapted, of course, because that is one of its fundamental strengths, to conditions there.

I gave a lecture and talked to people who have suffered the horrendous problems of Bhopal, which not many of us will forget. There is a perfectly good legal principle—British, as it happens—called Rylands v Fletcher, which decided in Victorian times to create a new system. If you bring dangerous things on to your land, it is your job to keep them in, and if they get out, you are responsible. That was the common law working with absolute certainty to produce a new way of looking at the responsibilities of the landowner. So between them, the principles of legal certainty and the use of the common law enabled our law to develop.

Here, the noble and learned Lord the Minister, as the noble Lord, Lord Beith, reminded us, with his own personal experience, asserted on Monday by repeating that

“there is no intention on the part of the Government to extend the power to every court and tribunal in the land.”—[Official Report, 13/1/2020; col. 555.]

But that is the power that is being given by this legislation as it stands to a Minister. If that is not the Government’s intention, what on earth is the point of giving the power in the legislation to the Minister?

Where do we go? This permits the Minister to make regulations that would create jurisdiction in any court at any level to disapply retained EU case law, which is our law. Just think of the district judge sitting in, for example, Pontypool County Court, bound by all the decisions of all the courts above him or her by our own native law—Occupiers’ Liability Act, Unfair Contract Terms Act and even the Finance Act—who is then told, “Here is the EU case law. You are not bound by anyone’s decisions on that, so take a running jump at it.”

That in truth is what the poor judge will have to do. Think of his poor colleague in Penrith County Court, faced with a large organisation taking advantage of this new system by going to a small county court without the experience to respond to: “This bit of EU case law really troubles us. Your honour is not bound by it, so here are the reasons you should find for us.” To be fair, it could happen the other way around with a litigant who knows perfectly well that under case law he has no case, going to the same judge and saying, against a large business organisation, “They cannot rely on the case law any more, because you are not bound by it.” The same could happen in a tax tribunal or a VAT tribunal. All of this is quite unnecessary because, as the Minister has said, that is not the Government’s intention.

I would love to have a go at Henry VIII, whether he is filled with fat or with whatever drug to describe this condition today, but I am going to resist the temptation to do so, because I want the Government to realise that this is nothing more than a reasonable argument that needs to be addressed. All that is needed, without causing any delay to Brexit or creating a problem on 31 January, is for the Government to decide what arrangement should be put before Parliament in primary legislation to achieve the desired objective.

As an example, I did a bit of drafting last night so that they could say, “The Supreme Court and/or the Court of Appeal in England and Wales and the High Court of Justiciary in Scotland are not bound by retained EU case law”. Or the Government could say that those courts may depart from any retained EU case law if and when. It is not difficult, and I will offer myself to the Minister to sit down and talk it over with him if that would help. If Ministers are listening, perhaps that offer will be taken up. However, we have to address the principle, because the slightest incursion into judicial processes must be for Parliament, not for Ministers.

--- Later in debate ---

[Lord Keen of Elie]

My Lords, in the interim there had been certain distractions, including a general election—the outcome of which the noble Baroness will be familiar with.

[Lord Brown of Eaton-under-Heywood]

My Lords, may I just be clear? When in future the High Court, say, is given this power to exercise what currently under the practice direction is only for the Supreme Court, will it not merely be saying that we will not follow this precedent from the European Court of Justice, but declaring retrospectively that it was wrong all the time? Or will it be saying in this particular case that we are not going to follow that principle but in all other cases—cases pending, appeals and so forth—we will? In other words, will there be the retrospectivity we now have under the practice direction, with the court declaring what the law in truth is and saying it was wrongly understood before; or is it merely to be, as legislation has it, that this will be the law in future—we are changing it?

[Lord Keen of Elie]

That matter will have to be addressed in the context of the regulations that are to be made, but those are the two options available. You can either proceed upon the basis that has pertained since the 1960s, which is, as we have stated, the law as it has always been, or say that the law is about to change. I make the point again that what will be provided for is the circumstances in which a court is not bound by EU case law. It will not be a circumstance in which they are told they are not allowed to follow EU case law; it will be open to them to do so if they wish.

Queen’s Speech

Lord Brown of Eaton-under-Heywood Excerpts

Wednesday 8th January 2020 Lords Chamber

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

My Lords, there is in the gracious Speech a great deal of interest and concern for one like me who has spent a lifetime in the law, but today I have time to put down only one or two markers.

On criminal justice, I applaud the decision to appoint a royal commission. I hope that it will look at the substantive law and not just at our now disordered procedure, and that it will deal, for example, with the age of criminal responsibility, along with IPPs, which are an enduring problem creating a continuing injustice for many. That said, I recognise that dyed-in-the-wool terrorists—people like the London Bridge killer—and religious zealots driven by ideology, whose reform seemingly can never be assured, may well require life sentences. I suggest that they present a very different problem from that presented by even the most serious sex offenders—Worboys and so forth.

I recognise too the case for a new treason offence and commend Policy Exchange, an admirable body with a number of distinguished contributors, on its work on that. I also support its work on the protection of our Armed Forces and its associated proposals for tinkering with the Human Rights Act in certain important respects—in particular, to deny it retrospective effect and, as Lord Bingham would have done, to deny it extraterritorial application too, save in the most limited circumstances, such as embassies and the like, which we considered years ago in the al-Skeini case.

My central focus today is on the prorogation case, Miller II in the Supreme Court. As everybody recognises, this lies at the heart of the Government’s proposal to establish a constitutional democracy and rights commission, whatever is contemplated by that—as the noble Lords, Lord Wallace and Lord Young of Cookham, and my noble and learned friend Lord Judge have already astutely observed.

The Policy Exchange paper The First Hundred Days asserts somewhat dramatically and, I suggest, overdogmatically:

“The Supreme Court’s prorogation judgment was a recent, startling example of judicial lawmaking, which compromises the integrity of the political constitution.”


It urges its reversal immediately by legislation. In fact, Policy Exchange suggests that, by the same token that Miller threatens powers of prorogation, so too—even when we get rid of the Fixed-term Parliaments Act, as plainly we should—will it threaten dissolution. For my part, I question that.

I confess that I was surprised and remain to a degree uneasy—a good deal more so than my noble and learned friend Lord Judge—about the Miller decision. I still find the also authoritative Divisional Court judgment convincing in many respects on that question. I nevertheless caution strongly against hasty action when it comes to entering upon this very delicate, sensitive and difficult area of the relations between the differing arms of state. Personally, I read the Supreme Court decision as a very narrow one on the facts. It was only really because the Government declined to vouchsafe any basis for Prorogation apart from the manifestly unjustifiable need for seven weeks to write a Queen’s Speech. Only on that limited basis did the court feel entitled to strike it down as manifestly unreasonable—a judgment it felt able to make.

Be that as it may, it would really be a terrible mistake now to rush into hasty legislation or to deal with what some describe as judicial overreach, the Prince of Wales letters case being an obvious one in point. Let these questions simmer a while. Let the various legal, political and constitutional pundits work through the implications to see what precisely may be needed and what will be the unexpected results of any legislation to overcome them. It would not be healthy for our constitution for any branch of the state now to be thought embarking on some power grab. That is the note on which I want to end. I indicate only that, as the months come to pass, there is an awful lot more that I shall hope to say.