LCJ criticises powers for council officers to enter homes, questions adversarial system in children cases

The Lord Chief Justice has outlined judicial concerns over local authorities’ powers to enter people’s homes without a warrant.

Speaking at the annual Lord Mayor’s dinner for the judiciary, Lord Judge said: “I am, I suspect, not the only member of the judiciary who is troubled by the extent of the powers granted to council officials to enter people’s homes without a warrant.

“Or the way in which apparently sensible powers – directed to the prevention of terrorism, appear on occasions to be used to control activities which by no stretch of the imagination, have anything to do with terrorism.”

The Lord Chief Justice used his speech to attack – as a “matter of great seriousness” – the use of “Henry VIII” clauses in legislation that allow ministers to alter laws without proper Parliamentary scrutiny.

Lord Judge added that the judiciary could not – and would not – ignore national fiscal realities when considering how best to respond to proposals to save money. “These realities will be hitting the system of justice at just the time when the demands on it are increasing,” he warned.

The judge said: “The question will always be the same. How will this proposal impact on the administration of justice? With the emphasis not on administration for its own sake, but on the doing of justice. For this purpose, too, we must be prepared to question, I emphasise examine and question, all our processes, including some very long standing ones.”

Examples cited by the judge include:

• Considering whether the traditional, adversarial system continues to provide the best means for enabling judges to decide cases involving the future of children
• No longer treating time as an unlimited resource in the Crown Court. “I do not understand why justice is less likely to be delivered in a criminal trial if a fair timetable is imposed, and the advocates are required to stick to the points that matter rather than fringe points,” he said, adding that the luxury of allowing the parties in criminal and family cases to dictate the length of the case can no longer be afforded
• At least asking the question whether legal aid arrangements are counter-productive to an efficient trial system and why it seems that the best rewards are not necessarily received by the most efficient practitioners.

The Lord Chief Justice’s intervention came in a week when the Home Secretary announced a rapid review of key counter-terrorism and security powers.

The review – to be led by Lord Ken Macdonald QC, the former Director of public Prosecutions – is intended to look at what powers and measures could be rolled back in order to restore the balance of civil liberties and counter-terrorism powers.

It will also cover the use of the Regulation of Investigatory Powers Act 200 by local authorities, and access to communications data more generally.