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Further, the JCHR draws attention to the inappropriateness, in human rights terms, of sweeping statutory ouster clauses in legislation. It points out that the last time the Government tried this on, during consideration of the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004, they were forced to withdraw the offending provisions in the face of overwhelming parliamentary opposition. It welcomed the concessions that were made, in particular subjecting the clause to the Human Rights Act, but considered that lack of jurisdiction or error of law should be specifically mentioned as grounds on which judicial review would still be available. Our solution is even simpler: we propose to eliminate the clause altogether, leaving it for the courts to determine, as they have done quite properly in the Shuker case, that there is a small number of cases in which the decision of the Attorney-General—or, under this Bill, the DPP—should not be challengeable.

Lord Trimble: I too am of the view that we would be better leaving out Clause 7. The matter came up on Second Reading when, in reply to the debate, the noble Lord, Lord Rooker, said that the clause,

He said later:

Let me quote from what appears to me to be the relevant part of the Shuker case. The Lord Chief Justice, Sir Brian Kerr, said in his judgment:

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That is the Shuker judgment. The noble Lord, Lord Rooker, said that Clause 7 puts the Shuker judgment on a statutory basis, but I am not altogether sure that it does. The clause allows the issue to be raised in three cases,

That is similar to what is in Shuker, but I am not sure that it is exactly the same. The use of “exceptional” before “circumstances” does not appear in the passage of the judgment that I mentioned. The three cases of,

will be read as defining other circumstances quite narrowly, or at least as indicating that they should be

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regarded as exceptional. The Lord Chief Justice did not use the relevant word. He said:

He said “appropriate”, not exceptional.

Therefore, I am concerned about whether Clause 7 accurately represents the Shuker case. I am not sure that it does. However, if the Government are satisfied with the Shuker case and believe that they have put it on a statutory basis here, that implies that they are content with the Shuker judgment. If that is the case, why not leave the Shuker judgment as it is? It is restrained in its approach. There is no reason to doubt, is there, that the judiciary will be appropriately restrained in these circumstances?

The Lord Chief Justice says that the courts should be reluctant to intrude and refers to a reason for reticence. There is no reason to doubt that the courts will be reticent or reluctant to intrude, so is there any ground for suspecting that the judges will exercise the possibility of judicial review in a way that frustrates the working of this legislation? I think not. Shuker indicates that the judges are properly cautious and that we can rely on them to be cautious in the future. Leaving the provision as it is in the Shuker case means that we would provide for unforeseen circumstances. The difficulty with trying to embody something in legislation is that of anticipating in advance all the circumstances that might arise. While the Government have tried to cover that by including the phrase “other exceptional circumstances”, the use of “exceptional” in that context worries me. From the point of view of doing justice in these cases, we would do much better to leave this matter to the courts to consider. If the courts make a mistake, under our system it is open to Parliament to change the law. However, in this situation it would be better and wiser to leave the matter to the courts, relying on the good sense that we see represented in Shuker, rather than try to render it now in concrete and perhaps make a mistake in so doing.

Lord Mayhew of Twysden: I agree with what has been said. I look forward to hearing what can be put forward against it. The jurisprudence of judicial review has developed over the past 30 or 40 years and has provided us with far and away the most effective curb upon the abuse of Executive power that exists—in my view, far better than any Bill of Rights yet invented. It is one of the ironies of life that Lord Diplock should publicly be associated with the report that led to the curtailing of jury trial whereas he, more than anybody else, was responsible for the genesis of this new jurisprudence of judicial review. Towards the end of his life he said that he regarded it as the greatest achievement of the judiciary in his time.

It would be unwise for the Government to persist with Clause 7. The history of ouster clauses, which try to exclude the jurisprudence of the courts, is not particularly happy. Judges will find a way around them in any case which they consider—to use a legal cliché—to be a proper case. The clause as drafted demonstrates that the Government recognise the need for some provision—a saver clause, perhaps—for other exceptional cases, and that is exactly what

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judges can be relied upon to give weight to if they consider that the facts of a case warrant it. We have been reminded of the way in which judges have been perfectly sensible about recognising that there are areas of decision which are not sensibly amenable to judicial review, and we should continue to trust them in that. The harm in this clause is that it suggests on the part of the Government a degree of distrust of the judiciary. The whole history of judicial review should go against that. I hope that the Government will give this issue close thought and not be afraid to come back and say that the arguments have persuaded them.

Lord Goldsmith: In the light of what has been said, it is plain that we need to consider the points. While we do that, I want to explain to Members of the Committee the considerations which led the Government to bring forward this clause so that, in their turn, those arguments can be considered as well. Three points need to be made: what the problem is, the nature of the DPP’s decision, and what was said by the Court of Appeal in the Shuker case.

We have touched on the problem a number of times during the course of our debates today. The problem is that in most of the cases where the DPP would reach the conclusion that he should issue a certificate, he would be heavily reliant on sensitive intelligence information, more often than not sensitive intelligence information which comes from human sources. One then has to envisage what the situation will be if there is a challenge to that certificate.

I have been a practising lawyer for a very long time and I know that in representing a defendant in those circumstances I would want to say, “I do not accept the decision of the DPP and I want to see the information on which he has based it”. Automatically, I would try to get at that information. Indeed, I might try to do that for two reasons: either because I would want the opportunity of challenging the underlying basis to see whether I could pick holes in it or say that the DPP had been too bullish in deciding that there should be a non-jury trial, or simply because I would know that the likelihood is that the evidence on which the DPP based his decision is information he cannot possibly share with me. The DPP cannot tell me and my client why it is believed that he is associated with a paramilitary organisation because my client will be able to guess that that information comes from a particular associate, and it is likely that only a certain number of associates could be responsible for it. He knows that I cannot share that information.

That is a fact of what happens in other areas such as in criminal trials where people seek to get at what lies behind what is known as personally identifiable information—(PII)—because they want to see whether they can put the prosecution into the position of having to identify an informant. The result is that sometimes the case cannot go ahead at all because the prosecution cannot disclose the sensitive information. In this case it would be that the prosecution cannot continue on the basis that there should be a non-jury trial, because the risk that the DPP was concerned about might come into existence. It is to recognise that risk and seek to minimise it that the Government have

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looked at who should be making the administrative decision and how far it should be open to regular challenge in the courts.

The second issue is the nature of the decision the DPP is making. As I have also said during these debates, the decision he is making is analogous to other decisions he already makes, such as the mode of trial. He makes the decision already about the mode of trial between the Crown Court with a jury or a trial without a jury in the magistrates’ court. He is also making a decision, as again I have said several times, between one form of fair trial and another. I do not dismiss for a moment the very strong, understandable and justifiable attachment to jury trial, but even without a jury it remains a fair trial.

I understand that those particular considerations were the reasons that led the Court of Appeal in the Shuker case to say that they would approach judicial review with reticence. I turn, then, to that case to explain where the words come from. The noble Lord, Lord Avebury, if I remember correctly, suggested that the argument we are putting forward in the Bill—presented by me, he said; in fact, it was presented on my behalf, but never mind about that—is precisely the argument that was rejected by the Court of Appeal. That is not right. The argument rejected by the court was that there should not be judicial review at all, and that is not what the clause says. It does not argue that there should not be judicial review at all; it recognises that there will be circumstances in which that is legitimate. However, it seeks to reflect in statutory language what we understand the Shuker decision to have been.

There are several passages in the judgment that are relevant. The passage read by the noble Lord, Lord Trimble, is undoubtedly very relevant. As he concluded,

In fact the only circumstance the Lord Chief Justice was prepared specifically to countenance was bad faith. He did not even go further than that; as the noble Lord says, he said he did not want to identify what the further cases might be.

There is an earlier passage in the judgment at paragraph 17, which is a quotation—the noble Lord, Lord Glentoran, referred to this in an earlier amendment—from Lord Steyn, who said that,

that is, bad faith—

It is that language that is being picked up in the statutory language. It would be for the courts to determine what were the exceptional circumstances, and that would be fully within their discretion to decide.

The Joint Committee on Human Rights strongly condemned and criticised the earlier version of the clause. The noble Lord, Lord Avebury, referred to paragraphs 1.28 and 1.37. Paragraph 1.28 deals with the original version of this clause. Let me be perfectly frank: I could not have stood here and commended the original version of Clause 7 to Members of the

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Committee. I would not have been able to do so. However, following those criticisms and, indeed, what was said in another place, amendments were made, including explicitly putting back the reference to the Human Rights Act. It is right that the committee then deals with that in paragraph 1.37 of its report, and what it says there is not in any sense as strong as what it had said about the previous paragraph, nor should it be. It said that it welcomed,

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I read that as meaning, as did Amendment No. 16 tabled by the noble Lord, Lord Glentoran, that they are concerned with the absence of “error of law” or “lack of jurisdiction”. My question is: is that covered by exceptional circumstance? Indeed, my general question comes back to the point rightly made by the noble Lord, Lord Trimble. Given that the courts have indicated that they see a lack of reticence in the Shuker case, ought Parliament to leave it to them on these rather different clauses in these rather different circumstances; or ought we to send a message as Parliament that although it will remain for them to determine what are the exceptional circumstances, they should exercise reticence in relation to judicial review? I accept that we need to reflect on that, but I invite noble Lords also to reflect on the problem that I identified, which has led us to this position, which is, if we do not somehow send a message and express as Parliament concern about judicial review in the broader sense, we risk very sensitive information that we should not disclose having to be disclosed to determine that judicial review.

None of that is to disagree one jot with what the noble and learned Lord, Lord Mayhew of Twysden, said about the importance of judicial review. I entirely agree with him about that. I might say that the Human Rights Act is also a very important part of holding the Executive to account, but judicial review is certainly important. This is not an ouster clause in the sense advanced in the Asylum and Immigration Bill—which I can now tell your Lordships, given that it was never put to the House, I, too had problems with.

Lord Trimble: I thank the noble and learned Lord for allowing me to come in. At the end of the day, his argument is that if we do not send that message about restricting judicial review, circumstances may arise in a case where sensitive information which ought not to be put in the public domain gets into the public domain. Surely his concern will be met by an application for a public interest immunity certificate, so it is not necessary.

Lord Goldsmith: There is a problem with that. If I may, I shall just explain why. Public interest immunity—I say this for other readers of this debate—is a procedure under which the prosecution goes to a judge to say, “Please will you relieve us of the obligation of disclosing

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this information to the defence”. That is only where the prosecution is not seeking to rely on that information. The classic case in which public immunity arises is where the prosecution has unused material, which it is generally under an obligation to disclose if it is relevant, but it wants to say to the judge, “We do not want to disclose this information. We are not seeking to rely on it. We think that, at most, it is of very marginal relevance to the defendant's case. We do not think that it is at all relevant, but we want to be relieved of the obligation”.

PII does not of itself enable one to go to a judge to say, “We want you to rely on this information in reaching your decision but you cannot tell the defence about it. You cannot reach a decision about whether it is right that the DPP has reached his decision, but you cannot tell the defence”. In order to do that, you would need a different procedure which, I think, would have to be some form of statutory procedure under which the court would have some different advocate able to deal with the material—a special advocate. There are difficulties about that procedure, which is why one comes back to the whole question of how it is appropriate to deal with it.

I see the noble Lord, Lord Trimble, looking concerned about what I have said, but let me repeat: PII is not a procedure under which you can say to a judge, “We want to say that this man is guilty of this offence. We have some secret information that we want you to see but he cannot see it”. That we do not do, and rightly. So I do not think that the PII is an answer to that problem and that is why I say that it is necessary to reflect on how one can otherwise deal with this issue.

Lord Avebury: The noble and learned Lord relied very heavily on the question of how you deal with cases where sensitive intelligence information is relevant to the determination of the issue of the certificate. I refer him to paragraph 1.34 of the report of the Joint Committee on Human Rights, which specifically deals with this question in the context of Clause 7. Where the Attorney-General had explained to the committee that where,

that particular question was addressed by the High Court, which held that,

The JCHR was apprised of the argument that the noble and learned Lord is now advancing to the Grand Committee and dealt with it in that paragraph.

Lord Goldsmith: If the noble Lord will permit me—paragraph 1.34 deals with the previous version of this clause, which I do not put and would not have supported before your Lordships. The JCHR is saying that the previous version of the clause, which appeared to be, on one reading at least, a complete ouster,

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represented an argument that was rejected in Shuker—namely that there could be no judicial review at all. I do not say that Shuker states that there cannot be judicial review at all, I say that it has to be, as the extract mentioned by the noble Lord, Lord Trimble, said, considered with reticence—and I have indicated the reasons why. So I do not read paragraph 1.34 as rejecting the argument that there is not a problem in relation to the potential disclosure of sensitive information; the paragraph was dealing with the previous version of the clause, which we accept was not acceptable. That is why the clause has been substantially amended.

Lord Avebury: I entirely accept what the noble and learned Lord says, but the argument rejected by the High Court of Northern Ireland stands alone and is not to be considered in relation to the clause as it was originally drafted, but is of general importance.

If there is a conflict of opinion about what Shuker actually said—and that seems to be the case, because the noble and learned Lord reiterated that he thinks that the Government have got it right and that the JCHR was wrong in its interpretation of that judgment—why can we not obtain further opinions? Should it be left to your Lordships to have to decide whether or not they accept the opinion of the noble and learned Lord or that they prefer the combined wisdom of the JCHR? Surely it is not satisfactory that we should be left in the position of having to choose between equally eminent and distinguished legal authorities in making up our minds on how to treat this clause. If the noble and learned Lord, Lord Mayhew, is right, that debate may be academic anyway, because he said that the judges have always found a way round the exclusion of their jurisdiction from particular cases.

What we need to find out from the noble and learned Lord before we leave this matter altogether, is whether there are any other ousters in the statute book. We heard only about the attempt by the Government in 2003 regarding the treatment of claimants, which, as the noble and learned Lord acknowledged was a mistake by the Government; he has also acknowledged that the original drafting of this clause was a mistake. So why then is the whole clause not a mistake? Is there any other provision in the statutes where such an ouster clause exists? If not, I suggest to your Lordships that, once we limit the jurisdiction of the courts in this way, we are embarking down a very dangerous road indeed. We think that it would be safest, as the noble Lord, Lord Trimble, recommends, to leave the Shuker judgment as it stands and not to have this clause on the statute book.

Lord Goldsmith: Given the way the noble Lord started, I need to respond. He invited me to, and I will do so. I do not accept this is an ouster clause because an ouster clause is one that says a court cannot interfere. It is perfectly right that it is a limitation. There are examples of limitations. I cannot identify them at the moment. The noble Lord makes a perfectly fair point to look at what the other examples are. I will see that that happens after we have completed today’s Committee.



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I do not think that this is a question of opinions as to what Shuker means—and I understand that the JCHR was faced with the new clause at very short notice. I do not read paragraph 1.37 of the JCHR report as having made a full analysis of the meaning of the clause as against Shuker. Perhaps that is what it intended. I do not think that is the question. There are questions of policy about the risks involved which the Chamber will need to consider. That is why I have said that I want to reflect precisely on what has been said today. What all noble Lords have said is very important. I also invite noble Lords to reflect on the reasons I have indicated on how we got into this position.

I am being very frank in explaining what the problem is so that nobody is in any doubt about why the Government have put forward this proposal.

Lord Mayhew of Twysden: The noble and learned Lord lays some weight on the assertion that this is not an ouster clause. Surely, he will acknowledge that it is an ouster provision, and that is what really matters. Clause 7 says the court may not entertain. That means it cannot grant a hearing. It is true that at the end there are three exceptions to that, but it is an ouster provision, is it not?

Lord Goldsmith: I do not want to cross swords with the noble and learned Lord on that point. I was trying to distinguish this clause from the clause that was put forward in the other Bill, which would have gone much further, and, indeed, from the way that the previous clause seemed to be going. If the way I have described this offends the noble and learned Lord and he thinks that it is wrong, I certainly do not want to rest on that point; I want to rest on the substance and not on any description of the clause.

Lord Trimble: I do not want to get too involved in the terminology. I am inclined to agree with the noble and learned Lord the Attorney-General that this is not a complete ouster clause. It ousts in certain circumstances the jurisdiction of the court, but it maintains circumstances where applications can be made to the court. That I think undercuts the argument the Attorney-General was making about the need to ensure that sensitive information is not disclosed.


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