| Previous Section | Back to Table of Contents | Lords Hansard Home Page |
Lord Donaldson of Lymington: My Lords, I fully understand the feelings of the noble Baroness, Lady Hayman, but this is not the natural order of proceedings. That approach is never used in civil work. True, it is the natural progression in criminal work, but in civil work you go to the High Court—or the county court, come to that—and say, "Look, I want a preliminary order because of the urgency. It is purely tentative, and we are asking for it in the absence of the other party. Please give us the order to protect the situation, and then we, the same court, will hold a full hearing as soon as possible that the defendant can attend". I think I am right in saying that that is the universal procedure in civil proceedings. The
8 Mar 2005 : Column 670
amendment would considerably muddle the whole situation if it were passed, so I sincerely hope it will not be. I am in favour of judicial control all the way through, but not in a muddled way.
Lord Lloyd of Berwick: My Lords, I disagree with the noble and learned Lord, Lord Donaldson; I find the proposed amendment extremely attractive. If these were ordinary proceedings, of course the noble and learned Lord would be quite right, but they are not ordinary civil proceedings.
That being the case, it seems to me that much can be said for having the preliminary hearing before a judge at a lower level than the judge in the High Court who will hear the full hearing. There is a further advantage, certainly so far as concerns England, in that the senior district judge—the chief magistrate as he used to be called—has great experience in these matters. If there is going to be a large number of these applications, he will hear them all rather than some being heard by one High Court judge and some by another.
For those two separate reasons I think that a great deal can be said for the amendment.
Lord Cameron of Lochbroom: My Lords, perhaps I may direct your Lordships' attention to the provision that affects Scotland. Preliminary hearing proceedings relating to a control order would take place before the Sheriff of Lothian and Borders.
New Clause 2 defines the court as being the appropriate place to go. The definition at the end of the Bill states that the court in Scotland is the Outer House of the Court of Session, which now has a cadre of 24 judges, each of whom also has knowledge of criminal proceedings by virtue of being a member of the High Court of Justiciary.
In addition, the Inner House is the place to which appeal proceedings are taken in terms of the schedule. That will be governed by the rules of the Court of Session which the Lord President will make in relation to what is proposed under the Bill. His writ runs over the Court of Session and has nothing to do with the Sheriff of Lothian and Borders, who has a completely different jurisdiction.
So we would be creating an enormous problem. We would in fact be suggesting that in Scotland an application must always be made to one judge; namely, a junior judge, one who is not a member of the Court of Session. With the greatest deference to the noble Baronesses who proposed the amendment, I suggest that the provision would create a complete nonsense for Scotland. I make no comment on what would arise in England and Wales and Northern Ireland.
The Secretary of State for Constitutional Affairs and Lord Chancellor (Lord Falconer of Thoroton): My Lords, I am grateful to my noble friend Lady Hayman for putting forward the suggestion, which, as she rightly says, was proposed by the noble Lord, Lord Carlile of Berriew. It is put forward very much in the spirit of trying to find a sensible solution.
8 Mar 2005 : Column 671
The amendments would apply to derogating orders, in respect of which we already accept that there should be judicial involvement before an order is made. They would also apply to non-derogating orders, in respect of which the House has made amendments to the effect that there should be judicial involvement from the start. We do not accept the second proposition, but I shall address the issue on the basis that what is sought by this House is judicial involvement prior to the making of an order and before it comes into effect. Remember that there is still the third way of the noble and learned Lord, Lord Donaldson, of the Home Secretary making the order with leave to enforce it coming only from the courts.
The attractions of the route of my noble friend, Lady Hayman, and of the noble Lord, Lord Carlile, is that you have a group of existing judges who currently deal with matters akin to what is being sought here; namely, search warrants and extensions of time for detention by the police. The downside of what my noble friend suggests is that she talks of what the district judge does as being subject to review or appeal by a higher judge; namely, a High Court judge.
The way I see the proposal in relation to derogating orders proposed by the Government in the Bill and what this House has inserted in relation to non-derogating orders, is precisely how the noble and learned Lord, Lord Donaldson, puts the issue, which is that you bring the matter before a judge. He takes a provisional view without having heard from the other side. Appeal is not the next stage; the next stage is a much more profound examination. That approach would strongly favour the first order being made by the same level of judge who makes the second order.
These orders are very significant in law terms. Ultimately, they should be made by a High Court judge and not by somebody below the level of a High Court judge. In those circumstances, I favour the approach being put forward by the noble and learned Lord, Lord Donaldson. It should be the High Court first, and then the High Court again, because of the significance of the orders and because it indicates that this is not about an appeal. This is about a provisional look, followed by a detailed look with both parties at the subsequent stage. I think that that provides the best protection, but I appreciate the spirit in which the amendment was put forward. I hope that what I have said has provided some assistance.
Baroness Hayman: My Lords, my noble friend has undoubtedly provided some assistance. The reason I hesitate slightly is because it seemed to me that he was conceding the significance of the orders and the need for a High Court judge to be involved in the orders—that is, all the orders, not just the derogating orders. That is a significant acceptance by our Front Bench about judicial involvement as a matter of principle rather than as a matter of necessity because of the votes of the House.
Putting that to one side, I am grateful for the Minister's response. I was interested in the opinion of the House. I am grateful that if I went down two to one
8 Mar 2005 : Column 672
on the judicial view, at least one was willing to support me. I am more than happy to withdraw the amendment, not least because the last thing that I would want to do is to cause muddle in Scotland. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 22 to 24 not moved.]
The Deputy Speaker (Viscount Simon): My Lords, in the second Division this afternoon on Amendment No. 7, the number voting "Content" should have been 240, not 241 as previously announced.
Schedule [Control order proceedings etc.]:
Lord Kingsland moved Amendment No. 25:
"( ) The relevant rules of court shall be made by the Lord Chief Justice after consulting the Lord Chancellor."
The noble Lord said: My Lords, I rise in the context of a serious political setback!
Amendments Nos. 25 and 26 were debated in some detail last night. I shall not repeat all the arguments I advanced. The amendments arise in the following context. Your Lordships have already decided to give the decision on whether a control order should be made to a judge in place of a politician; but there is no point in making that change unless the judge is in charge of a process that is truly judicial.
It is not enough simply to put the judge in charge of what is otherwise a political process. The amendment seeks to ensure that the context in which the judges will be operating is properly judicial. That context will be established by the rules of procedure of the High Court. In the Bill the Lord Chancellor is given the responsibility of establishing those rules after consulting the Lord Chief Justice. In our view that formula should be reversed. The Lord Chief Justice should establish the rules of the court after consulting the Lord Chancellor.
As I understand it, that will be the case in Scotland. The rules in Scotland will be made not by the chief executive or by a member of the Scottish Executive but by the Lord President. This amendment would put us on all fours with the situation north of the Border. Indeed, I think it would be inappropriate if a different approach were to be taken in England and Wales in contrast to Scotland.
We submit that the amendment is a vital component of the earlier decision we took about replacing the Secretary of State by a judge. I have no hesitation in recommending it to your Lordships. I beg to move.
6 p.m.
| Next Section | Back to Table of Contents | Lords Hansard Home Page |