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Lord Lester of Herne Hill: I am grateful to the noble and learned Lord the Lord Chancellor. I hope he will bear with me and my question because I do not understand the way in which he is reading the Bill on the key issue of judicial control.
Clause 1(1) states that the Home Secretarynot a judgewill make the initial decision and that he will need to have reasonable grounds and consider it to be necessary. Under Clause 7, which deals with appeals, the role of the court is not in deciding whether the order was necessary but, under Clause 7(4), in whether the decision was flawed. Clause 7(7) states that, in doing so, the court has to apply the principles applied in a judicial review.
My understandingI am interested to know whether the Lord Chancellor agrees with meis that if you apply judicial review proceedings, the decision is not that of the court, as it would be with a "Spycatcher" injunction to restrain the distribution of government information in breach of a duty of loyalty by a disloyal agent, but of the Home Secretary. The power of what is called an "appeal" court is to be exercised, as I read it, only to see whether the Home Secretary's decision was flawed on the basis of legality, rationality and procedural propriety. That is not the same as the independent principle of proportionality, which the courts have not yet said is an independent principle.
Therefore, when the Lord Chancellor says, as he has done today and previously, that the court will decide whether the order was necessary, with respect, that is not right. The court will decide whether the Home Secretary's decision was flawed on the basis of judicial review principles. There is all the difference in the world between that and a police officer who believes there are reasonable grounds for suspicion and applies for a search warrant, or a government who, through the Attorney-General, apply for a "Spycatcher" injunction. In such cases, they will have reasonable grounds and go to a judge, and the judge will decide whether it is necessary. Am I right or wrong about that?
Lord Falconer of Thoroton: I understand the question. The noble Lord is absolutely right that I said on Thursday in considering the "judicial review" basis that we propose in the Bill that it is our intention that the
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court should be able to ask and answer whether there is a legitimate aim under the convention pursuant to which the non-derogating order is made and whether the obligations in the order are proportionate. I believe that we have got there already, but if we have not we will make amendments to achieve that end.
Lord Brittan of Spennithorne: I hope that the noble and learned Lord the Lord Chancellor will accept that there is no greater supporter of the European convention than I; nor any greater admirer of the jurisprudence deriving from it. I hope that he will also accept that underlying my noble friend Lord Forsyth's argument is the belief that it is fundamentally misconceived to found a distinction on the question of compliance or otherwise with the convention between cases where we have to go under the more onerousif we may call it thatprocedure and cases where we go under the simpler procedure subject to judicial review.
If we are to have the public's consent, what matters between one procedure and the other is the gravity of the matter and not whether it is a breach of the convention. In the cases where the derogating orders apply we are talking about the deprivation of liberty; but on any view the kind of orders that can be made under the non-derogating category involve so substantial a curtailment of liberty that to the ordinary public there seems to be little difference between one and the other.
If that is the case, there is no reason why there should be a difference in procedure in applying the two orders and why what seems in ordinary legal principlesnothing to do with the conventionthe more normal procedure of going to a court, presenting the evidence to the extent that it is possible to present it and asking for a view should not apply both to the deprivation of liberty and the substantial curtailment of liberty.
Lord Falconer of Thoroton: I entirely accept that there is no warmer admirer of the jurisprudence of the ECHR than the noble Lord, Lord Brittan. I also agree entirely with what he says about the need for an understandable basis for which one can draw a distinction that can be popularly understood.
Any Article 5 infringing order will deprive someone of his liberty. It will mean that he is in practice restricted to his house for 24 hours or something akin to that. I believe that the public would be able to identify that the mainstream ordera non-derogating orderinvolves, for example, reporting to the police and not communicating with particular named individuals but does not involve deprivation of a person's liberty.
The noble Lord gave the example of a curfew. If he will think back to his days in the magistrates' courtwhich I am sure were a long time agohe will remember that bail was often obtained by agreeing to a curfew. Did the subject of such an order think that he was being deprived of his liberty? I think that he was regarded as not being placed inside.
Lord Clinton-Davis: If eventually the Committee comes to the conclusion that there is no difference between derogating and non-derogating orders, will the
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Government still insist on occupying the stance recommended by my noble and learned friend? Will they go to the wall on the issue?
Lord Falconer of Thoroton: I have put my arguments in relation to the distinction between derogating and non-derogating orders. For reasons that I am almost completely unable to understand I find no support for my arguments in the Committee. It is for the Committee to decide whether it agrees or disagrees with my arguments.
Lord Neill of Bladen: On Second Reading I gave the example of an order that deprived someone of their right to work: he had only one place where he could work; he was ordered not to go to work; and his passport was removed by another part of the order. In ordinary parlance the ordinary man would say that he had been deprived of his liberty substantially: he cannot carry out his work and he is really a captive.
What is the point in running the risk of starting thatas we wouldby a procedure where the Minister makes an order instead of saying that all orders should be made by a judge? We would thereby eliminate the risk of making orders that turn out to be derogating orders. It does not make any sense.
Lord Falconer of Thoroton: I am interested in the noble Lord's example. There are people who come to this country legitimately who are legitimately prevented from working. I wonder whether they would regard themselvesas the noble Lord says they would in common parlanceas deprived of their liberty. I do not think that they would. Other rights under Articles 7 to 11 of the European Convention on Human Rights would be infringed, but under our proposals the court is able to weigh up the risk that they pose against intrusion in relation to their rights.
Lord Donaldson of Lymington: May I take the noble and learned Lord the Lord Chancellor back to the point of judicial control by means of judicial review? I am not boasting, but I have probably presided over a divisional court for longer than anyone in the Committee, because I did it for nine months. It was concerned mostly not with Home Secretaries or central government, but with local government: with problems such as whether proper priority was being given to particular classes of people seeking housing.
It was by no means unusual for my colleagues and me in the court to conclude that we would never have done something but that it was within the scope of the local authority. That is a weak form of control.
Lord Falconer of Thoroton: There is probably no one in the Committee who has presided more often over divisional courts than the noble and learned Lord, Lord Donaldson. The question of how the ECHR is played into this is a matter for the legislation. As I made it clear on Thursday, the courts would be able to
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consider both proportionality and whether there was a legitimate aim that justified the order. They are always able to make that balance.
Lord Maclennan of Rogart: Before the noble and learned Lord the Lord Chancellor sits down, does he understand the difficulty that some of us face in following the distinction he makes between derogating and non-derogating orders? Although some of the proposed orders may not appear to affect freedoms guaranteed under Article 5 they appear to affect other freedoms protected by the convention: Article 10 on freedom of speech and Article 11 on freedom of association and the property freedoms, which would be interfered with most severely. How can that distinction seriously be drawn?
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