Police, Crime, Sentencing and Courts Bill

Baroness Ludford Excerpts

Lords Hansard - Part 2 & Committee stage
Monday 15th November 2021 Lords Chamber

[Lord Hunt of Kings Heath (Lab)]

My Lords, time is against us, so I will be really brief. From all our debates so far, I am convinced that the issue of inconsistent policing is the one where I would put most of my money in terms of improving the situation. Her Majesty’s Inspectorate, which looked at the way police forces dealt with violence to women and girls, was very persuasive about the hugely patchy approach of police forces.

As far as the Law Commission is concerned, anyone reading its work will see that it is complex and that it did not come to an easy conclusion when it gave a provisional view that it would be helpful to add to the categories in the way suggested. Most notably, it identified the risk that hate crime laws could prove unhelpful in certain contexts such as domestic abuse and sexual offences. It then went on to quote evidence from the Fawcett Society, which argues that all sexual and domestic abuse offences committed by men against women should be understood as inherently misogynistic. There is therefore a risk that sex-based hate crime might disrupt this understanding because it would require juries to seek express evidence of misogyny in these contexts, potentially causing some offences to be non-misogynistic where there is insufficient evidence of this.

I am not qualified to comment on the detail, but it is clear that this is a complex issue, as are the issues of sex and gender. Given that the Law Commission will report by the end of the year, the key thing we want to hear from the Minister is that the Government will take the report seriously and it will not join other Law Commission reports in the long grass.

[Baroness Ludford (LD)]

My Lords, we are all impatient for the Law Commission report, but I believe it is best to await it before deciding how best to frame any law on hatred towards women. Sex and gender have become conflated in ordinary speech, even in legislation, but they are not the same. While “sex” has a clear meaning in law, as defined in the Equality Act, the term “gender” does not, and is taken to mean social roles or stereotypes associated with someone’s sex, and that is too tenuous, at least at this stage, to be a legal definition.

If the intention of adding “or gender” is to ensure that legislation also covers hate crimes perpetrated towards trans women, it is unclear why the law would not catch a crime directed towards a trans woman on the basis of presumed sex. In addition, crimes directed against someone based on their transgender identity are already covered by hate crimes legislation.

Independent Review of Administrative Law Update

Baroness Ludford Excerpts

Monday 22nd March 2021 Lords Chamber

[Lord Wolfson of Tredegar (Con)]

My Lords, that is a very interesting proposal from my noble and learned friend. Generally, of course, judicial review does not substitute the decision of the court for the decision of the decision-maker, but perhaps that is a matter which I can reflect on and discuss with my noble and learned friend as I consider the responses to the consultation generally.

[Baroness Ludford (LD) [V]]

My Lords, the Government appointed a distinguished panel to review the operation of judicial review led by a Conservative former Justice Minister. The panel said that

“disappointment with the outcome of a case … is rarely sufficient reason to legislate more generally”.

It was obviously thinking of Miller 2, the prorogation case. The Government seem dissatisfied with that response. and are now consulting on statutory changes, such as for ouster clauses, which the panel advised against. The Faulks review also points out that

“any legislation would be of limited effect unless changes are also … made to the Human Rights Act.”

Given their reaction to the review of judicial review, will the Government similarly ignore the result of the Gross review of the Human Rights Act if they do not get the answers they want?

[Lord Wolfson of Tredegar (Con)]

My Lords, we are not disappointed with the report from the noble Lord, Lord Faulks, and his team. On the contrary, it is a very good piece of work. We are consulting for the reasons I have already expressed. The panel did not say that ouster clauses should never be used; it said that, when used appropriately, they should not be seen as an affront to the rule of law. We want to consult on whether and how they should be used. The independent review of the Human Rights Act is ongoing. We will consider its results in due course. While very significant reform of judicial review might require changes to the Human Rights Act, the changes we are proposing do not.

Anti-Semitism: University Campus Incidents

Baroness Ludford Excerpts

Thursday 21st January 2021 Grand Committee

[Baroness Ludford (LD) [V]]

My Lords, I thank the noble Baroness, Lady Deech, for this debate, and the CST, along with the Union of Jewish Students, for preparing this important and distressing report. It is intolerable that students—or, of course, any Jewish person—should be subjected to anti-Semitic abuse. One of the issues highlighted is the flaws and lack of consistency in some universities’ complaints procedures. Some have given strong support, but others have not investigated or adjudicated complaints promptly, thoroughly or fairly. In that context, it is disappointing that only around 40 or 50 of over 130 universities have adopted the full IHRA definition and examples. Only if they do so can they recognise anti-Semitic discrimination, prejudice or abuse based on an appropriate, complete standard that is commonly accepted. I am sorry to see my alma mater, the LSE, missing from the list I saw. What are the results of the Minister’s department’s engagement with universities on adoption of the IHRA definition and best practice complaint procedures? I look forward to hearing his response and I welcome him to the Dispatch Box.

Crown Dependencies

Baroness Ludford Excerpts

Tuesday 12th July 2016 Lords Chamber

[Lord Faulks]

My Lords, there will be no immediate change in the way Gibraltar’s people can travel, or how its services can be sold. The Government are most anxious to maintain the Gibraltar-Spain border: it is one of our top priorities. As for the details, I am afraid that, as with so many things in this negotiation, we will have to wait.

[Baroness Ludford (LD)]

I, too, want to ask about Gibraltar. Obviously it is not a Crown dependency, but naturally there is a great deal of concern in Gibraltar, whose inhabitants voted remain, not only about the economy but also that Spain will be emboldened to press its sovereign claim. How will the Government protect the interests of Gibraltar in all those dimensions?

[Lord Faulks]

As the noble Baroness says, Gibraltar is not a Crown dependency—the subject of this Question. None the less, the Government of Gibraltar have put forward some specific ideas for ensuring that trade will continue between the UK and Gibraltar, and we look on this matter as a priority. We also continue to uphold sovereignty over British Gibraltarian territorial waters by challenging and protesting all incursions, and we are continually monitoring the situation. We will continue to do so, and the long-term aim is to return to the trilateral forum for dialogue between the UK, Spain and Gibraltar.

Article 50

Baroness Ludford Excerpts

Monday 11th July 2016 Lords Chamber

[Lord Faulks]

The noble Lord asks a number of questions, including some that were posed, as he quite rightly said, to my noble friend Lady Anelay last week during the debate. I can of course advance the position somewhat from the answer that she gave last week, in that we know, as the noble Lord said, who the next Prime Minister is—and I understand that she will become the Prime Minister on Wednesday evening. There is at least some progress there, which I am sure will provide some confidence that the process will be decided rather sooner than might have been the position had there been a contested election for the Conservative leadership.

As to his question in respect of the devolved nations, I know that there have already been preliminary discussions with the various parts of the United Kingdom and their representative Assemblies and Parliament. That will continue, and he is quite right that Brexit, however it finally comes into being, should involve all of the United Kingdom and as many parts—and representative parts of the United Kingdom—as possible.

As to the question of Parliament’s involvement, I fear I can go no further than my noble friend did. It is the Government’s view—as I indicated in the Statement—that the prerogative power does not require parliamentary involvement, but the current Prime Minister made it clear that Parliament will be involved. How and when Parliament will be involved will be a question for the new Prime Minister when she has considered the best way forward.

[Baroness Ludford (LD)]

My Lords, I thank the Minister for his responses. He seemed to make rather a joke of “enjoyable and highly paid” disputes among the lawyers, but surely it is much bigger than that. For a referendum which was fought largely on the issue of parliamentary sovereignty, and on such a major issue as the terms on which this country is supposed to leave the EU, surely it is inconceivable that a decision to trigger Article 50 should not be taken on the basis of a parliamentary decision. After all, Article 50 says that it is up to British constitutional requirements. So this is not about legal formalities; this is fundamentally about democratic principles. We need clarity in a time of huge turbulence. We need to know the evidential basis on which the negotiations will be conducted. We need to know the timing, before and after negotiations, for triggering Article 50. This is about the national interest, not about the convenience of the Conservative Party. I think that we deserve greater respect for Parliament on this decision.

[Lord Faulks]

There is no lack of respect for Parliament; quite the contrary. As to the comment that I appeared to make a joke, the noble Baroness will appreciate that I was simply reading out the Statement that was in the House of Commons. If noble Lords found it amusing, that was a matter for them, not any intention on my part. As to the question of sovereignty, there is a distinction drawn by the noble Lord, Lord Norton, as the noble Baroness may remember, between parliamentary sovereignty and political sovereignty in the Diceyean sense. The Government took the view that it is plainly desirable that Parliament should be involved. Whether there is a strict requirement in law may be a matter that courts will decide in due course.

EU Referendum and EU Reform (EUC Report)

Baroness Ludford Excerpts

Wednesday 15th June 2016 Lords Chamber

[Baroness Ludford (LD)]

My Lords, as a fully signed-up member of the Boswell fan club, I was very impressed not only by the report but by its introduction today from the noble Lord, Lord Boswell. It has been very useful to have the three reports melded into one debate. I was a little uncertain about that originally, but I have been proved wrong, not least because of the reform and withdrawal elements being brought together but also because we have had a very strong contribution on the scientific work that is supported by the European Union. I agree with the noble Lord, Lord Hannay, that, as an arts person, the more I learn about science, the better.

It has been amply demonstrated that the leave campaign has no feasible post-Brexit plan: it would be a leap in the dark, as the noble Lord, Lord Liddle, said. Others have also emphasised the dangers of a chaotic withdrawal in the context of a lack of trust, as my noble friends Lady Falkner and Lady Smith said. The noble Lord, Lord Jay, reminded us that the negotiations would be of a hardball nature, with up to 10 years of fraught discussions. The noble Lord, Lord Howell, recalled that we are not Canada or Japan. We are in Europe, and so we cannot use those models to guide us.

To the noble Lord, Lord Pearson, I say that what the remain campaign and most people in this debate are talking about is Project Reality, not Project Fear. It is about what will happen if, due to what I and others would regard as a very bad decision, this country was to decide on Thursday next week to leave the European Union and follow the Pied Pipers of the leave campaign—a phrase which I have pinched, and will probably use again, from the noble Baroness, Lady Neville-Jones.

I was impressed by the recent entry of former Prime Minister Gordon Brown into the heat of the campaign. He has not traditionally been associated with passion but more with post-neoclassical endogenous growth theory. However, he has come up trumps—not Trump, I hasten to add—with his video filmed in the ruins of Coventry Cathedral. I saw one reference to that video having had 2 million views, and that was a day or so ago.

The Select Committee’s report noted how the Government’s approach had downplayed any visionary or emotional element in their proposals for the future of the EU, focusing almost exclusively on pragmatic and transactional arguments—although that has improved in recent months. Of course, pragmatic arguments are essential, but a dose of what the noble Lord, Lord Boswell, called “feelings and ideals” has the advantage of putting everything in context, set against the past and looking ahead to the future. The noble Lord, Lord Browne, referred to his family history to illustrate the inspiration for the EU. That resonates, and is something that has not come out enough in the referendum campaign. I was at a meeting last night, and the biggest applause of the evening was when I got a bit emotional about the 70 years of peace that we have had.

It is not just vision and emotion that need to be taken into account; we need also to look at the factors beyond the economic, important as those are. The geopolitical and strategic implications of the UK’s exit from the EU are considerable, as is touched on in the EU Committee’s report, and would mean a hit to our security through the loss of key EU co-operation instruments and a loss of diplomatic and political influence.

Following a short break earlier, I came back to the Chamber in the middle of the speech by the noble Lord, Lord Howarth. He enumerated the very unpleasant political forces that are abroad on the continent. We are pretty disputatious as a nation, but we are largely free from the nastiest of the political elements. The injection of our history and stability is much needed in Europe. A couple of days ago, the Financial Times commentator Wolfgang Münchau said that,

“whatever the referendum’s outcome, the chances of the UK playing an active role in shaping Europe’s future are minimal”.

I hope that we will be able to prove him wrong.

I also hope that, in just over a year’s time, the UK will be about to assume the presidency of the EU as a leading, not a leaving, member—in the words of my noble friend Lord Maclennan, echoed by the noble Lord, Lord Hannay. I hope that we will be able to commit to making the EU more streamlined, more effective and possessing of greater legitimacy. I believe that the EU is democratic, with directly elected MEPs and elected Ministers in the Council. However, what we have is a legitimacy deficit. As the noble Lord, Lord Judd, mentioned, we can bring confidence and our outward-looking approach to improve the European Union.

The remain side is not complacent about the current state of the EU, which the noble Lord, Lord Howell suggested. However, he is absolutely right that we have to prepare the EU for the storms to come. It must lift its eyes to the horizon and not be introverted. We can contribute so much to making the EU stronger in addressing the many challenges that there are. For example, we can contribute to making Europe more competitive, with a growing economy, and more ambitious in trade deals. We can also contribute to a Europe that distributes more fairly the gains from globalisation, as the noble Baroness, Lady Armstrong, remarked.

The noble Lord, Lord Low, spoke very interestingly about the contribution of the EU to accessibility criteria for goods and services. That is essential. We all know what we need to compete in a single market, and there are digital, energy and financial services dimensions.

I absolutely agree with the noble Lord, Lord Boswell, that we have wasted the enormous asset that was the balance of competences review. No other member state has done anything so comprehensive. So please, after next Thursday, when, as I sincerely hope, we vote to remain, let us use the information and contributions in that review. It is disrespectful to everyone who did so much work in contributing to and writing up the report not to draw on that exercise. It would help the EU get smart regulation. Let us build the quality, not the width.

The noble Earl, Lord Selborne, strongly emphasised the importance of a strong regulatory framework in the EU as providing a good basis for scientific collaboration. He also highlighted the things that had not worked so well. However, I am glad that, for example, in the clinical trials directive, the Brussels machine did listen and improve that.

My noble friend Lady Sharp made interesting remarks on the bureaucracy around grants. There is a bit of a “cannot win” dilemma for the European Commission. With the Court of Auditors breathing down its neck, maybe 30-page forms are necessary to be able to audit and track the funds. What I would like to see is Finance Ministers and our own Chancellor sign declarations to say that all money spent in their member states is properly spent. Funnily enough, they never want to do that, because they quite like Brussels being blamed.

So many speakers—too many for me to name them all—emphasised how Brexit would severely hit our universities and scientific collaboration, which has been such a success story. That feeds into the reform of the European budget. Big progress has been made, but more needs to be done with the continued switch to innovation, research and infrastructure. We can do that only if we are in there arguing for those changes.

Also, of course, we are very aware of our unique contribution in security and counterterrorism. The UK is a crucial partner. Having the current director of Europol and the former president of Eurojust, the network of prosecutors, is, I think, a tribute to our first-tier legal and policing status. On defence, foreign policy and the European neighbourhood, we need to capitalise on what my noble friend Lord Watson called our “three circles of engagement”—Europe, the Commonwealth and the transatlantic relationship. There is no country in the world that has the networking assets that we have. We are a sort of Tatler of the diplomatic and political world.

I shall say a word on migration, which is an important part of this campaign—and not only external migration, where we must work with the rest of the EU to get a credible policy of migration management, whose challenge is only going to grow, coupled with development aid, as the noble Lord, Lord Hastings, said. On intra-EU free movement, we have had very helpful judgments from the European Court of Justice, including one just yesterday about the payment of child benefit, which have confirmed that free movement is the right to move for a job. It always was, but there has been clarification and firming up of the rules, including through the Prime Minister’s renegotiation. We need to do two tough things. One is making sure that public resources are targeted at areas in this country which are under migration pressure, and being more nimble in switching the money. The other is the investment in training and skills for our own young people so that employers do not automatically put advertisements in Polish newspapers.

Lastly, I shall say a word about our engagement with the EU institutions. It will not come as a surprise, perhaps, to the noble Lord, Lord Judd, that I, as a former Member of the European Parliament, do not agree with his regret regarding a directly elected European Parliament. We certainly need much better partnership between the European Parliament and national parliaments. Perhaps one little step that we could help achieve would be to give MEPs a pass for the Palace of Westminster. It is absurd that we regard MEPs as some kind of foreign body that should not be allowed on the premises. The stress in the reform report on allowing national parliaments a positive and proactive role—a green-card role, not just a reactive and negative red-card role—is very important.

Many remarks have been made, including by the noble Lord, Lord Browne, about the importance of having British officials in European institutions. I think that there are two things the Government could do. They could revive and beef up the fast-stream program in the Civil Service to prepare people for the “concours”, or competition. Also, as far as I know, they have not reversed the much-regretted decision of some years ago to cease funding scholarships at the College of Europe in Bruges—you could call it the Eton of Brussels—which helps provide a channel into the EU institutions.

We need to be careful what we wish for in a “flexible, multi-layered, diverse Europe”. That is fine, as long as it does not become a pick ‘n’ mix, where we end up losing out. Therefore, I end on the warning from Manfred Weber, the present leader of the EPP group, the biggest group in the European Parliament, who sounded a note of caution about British exceptionalism. We are not in the euro; we are not in Schengen; and I wish we had not been half-hearted about justice and home affairs co-operation—and thank you to everybody in this Chamber who worked so hard to get us opted back into the 35 measures. We need to be very careful that we do not undermine the voice of British Members of the European Parliament in getting senior positions, such as chair of the Committee on Economic and Monetary Affairs, which my colleague Sharon Bowles got in 2009. We should not undermine either the chance of that being repeated for the chair of the Committee on Civil Liberties, Justice and Home Affairs or our weight in the Council. I would say yes, perhaps, to a kind of special arrangement for the UK, because if that goes too far we will actually lose the leading voice that many of us here want.

European Union Referendum (Date of Referendum etc.) Regulations 2016

Baroness Ludford Excerpts

Wednesday 2nd March 2016 Lords Chamber

[Lord Lawson of Blaby]

The great majority of the agreements we are party to through the WTO and its predecessor, GATT, were concluded before 1995, when, at that time, the European Union or its predecessor was not even a member of the WTO or GATT.

As for the argument that you need to be a member of the so-called single market to trade with the single market, that is an equal nonsense. Indeed, exports into the single market from countries outside it have, for many years now, grown much faster than UK exports to the single market. After all, the weighted average of the European Union’s common external tariff is only 3.6%. The prospect of our not being able to secure a far better free trade agreement than little Switzerland is minimal.

Certainly the future is uncertain. That, after all, is its nature. But the uncertainty surrounding Britain’s future within the European Union, should we decide to stay, is far more worrying than regaining our freedom. The EU’s blundering route to political union—for that is what it is all about; that is the purpose of the whole enterprise—will continue and, even though we have secured an opt-out from political union, we will remain shackled to it: a sort of colonial status.

This referendum debate is not primarily about economics. It is about whether we in this country wish to take control of our own affairs and to be a self-governing democracy with a global rather than a merely European perspective.

[Baroness Ludford (LD)]

Before the noble Lord sits down, could I press him to spell out what his alternative is? He is the chairman of one of the leave organisations. He always raises a laugh—I have had the privilege of hearing it several times now—when he says that the alternative to being in is being out. But what does that freedom consist of? What kind of deal would he conclude?

--- Later in debate ---

[Baroness Ludford]

My Lords, this has been a very interesting debate. First, I congratulate the noble Lord, Lord Gilbert of Panteg, on his maiden speech and in particular his stress on the cross-party nature of the campaign for the remain vote. I will return to that point.

I will now utter a phrase not often heard these days. The Liberal Democrats are fully behind the Government and support Mr Cameron to the hilt—rather more than some on his own Benches. That support includes the date of 23 June. The Prime Minister made an excellent start with a sparkling performance on “The Andrew Marr Show” and a combative presentation since. I particularly agree with his arguments about sovereignty needing to be pooled if it is to be real not illusory. That point was made by my noble friends Lord Ashdown and Lord Maclennan.

I am very glad that the Prime Minister stressed the value of the EU to UK security, an argument that the Liberal Democrats and many in this House had to fight hard on. I think of the noble Lords, Lord Hannay and Lord Boswell, in that context. When the coalition had to decide on staying with the opt-in to policing and crime-fighting measures, there was quite a lot of heavy lifting so I am very pleased that the Prime Minister and the Home Secretary have been persuaded there.

The Liberal Democrats, who are fully united as a party behind our 70-year history of support for Britain in Europe, believe passionately that remain is not only the rational and right thing to do but also the patriotic choice, playing to our strengths and multiplying our ability to promote our interests. As my noble friend Lord Lee of Trafford said, leaving would take the great out of Britain.

I want to pay special tribute to Europe Minister, David Lidington, who is something of an unsung hero of the renegotiation exercise. He is intelligent, diplomatic and knowledgeable, and his six-year longevity in the post—a poisoned chalice, some would say; I have no idea whether he wanted to be there for that long—has been an asset given the relationships he must have built up with Ministers and officials across the EU. We saw a dividend of that on 19 February. I hope I have not just dealt a blow to his further career prospects. I particularly enjoyed his response to the Brexiters in the other place last week. He said:

“If the Prime Minister had come back from Brussels brandishing the severed heads of the members of the European Commission and proceeded to conduct an auto-da-fé in Downing Street of copies of the Lisbon treaty, they would still be saying, ‘This is feeble, insufficient, not enough’”.—[Official Report, Commons, 25/2/16; col. 564.]

He was absolutely right.

I heard the Foreign Secretary speak a little less colourfully this morning. While still describing himself as a Eurosceptic, he made a powerful case in presenting the document published today for how Brexit was a risky leap in the dark and that none of the potential alternatives was viable for Britain. Just today, the former Swiss President and, this evening, the current Norwegian Prime Minister advised against copying their countries’ relations with the EU.

We all wait—and still wait—for an honest portrayal by the leavers of what they propose instead of EU membership. We waited in vain during this debate as answer came there none. The noble Lord, Lord Lamont, talked about a free trade agreement but as others—including the noble Lords, Lord Willetts and Lord Kerr, said—that is fundamentally different from access to the single market. Everybody sensible accepts that access to the single market comes at a price.

All out friends and allies, not only in the EU but also in the Commonwealth including Canada and Australia, in NATO—which, as the noble and gallant Lord, Lord Stirrup, said is made stronger by the UK’s membership of the European Union and those organisations being partners—and of course in the United States and, importantly, Ireland, urge us to stay in the EU. Can the leavers cite a single country or leader apart from Putin’s Russia that wants Brexit? The US trade representative has said that the United States is not interested in a trade deal with just the UK.

We know, of course, that the leavers are all over the place. Boris Johnson—true to form—could not stick to his suggestion of a second referendum for more than five days. And 13 days before his announced “decision” to back leave, he had been singing the praises of the European Union. Boris executes more U-turns than all the black cab drivers in London, who, by the way, are not among his fans.

We have also heard rather a lot of “porkies” from the leavers, I am afraid. The noble Lord, Lord Willetts, mentioned the one about the habitats directive, which boils down to some non-statutory guidance from Natural England. Boris himself has cited the one about being stopped from having safer lorries that would be more visible to cyclists. He claimed that the French had blocked this measure. However, it passed into law with the agreement of the Council and the Parliament and will come into force in a few years’ time. When the measure was going through, Boris himself blamed the British Government for trying to block this proposal. So some correct facts would not go amiss, including on our budget contribution, where there have also been some wild claims. I commend the organisation infacts.org for picking up a lot of these mistakes.

My noble friend Lord Oates, who made an excellent speech, said that anyone would think that we had no friends. I am afraid that is the attitude of all too many of the leavers. I find a defeatist streak in them and a lack of faith in this country. The side that lacks confidence in the strengths of Great Britain is not the remain side: it is those who want to take their bat home. That quitting attitude undermines, and rats on, our friends. We should be a reliable partner, asking, in the words of the noble and gallant Lord, Lord Stirrup, not just what Europe can do for us but what we can do for Europe. That is the question Winston Churchill asked, who has already been invoked in this debate. I found an article that Edward Heath wrote 20 years ago, which stated:

“I readily accept that at that time”—

that is, the time of the Zurich speech in 1946; I was fascinated to hear the noble Viscount, Lord Eccles, say that he was present—

“Churchill did not envisage Britain being a full member of this united Europe”.

But Edward Heath added:

“This reluctance was based on circumstance; it was not opposition based on principle”.

Mr Heath went on to quote Churchill in the House of Commons debate on the Schuman Plan in June 1950, when Churchill asserted:

“The whole movement of the world is towards an inter-dependence of nations … If independent, individual sovereignty is sacrosanct and inviolable, how is it that we are all wedded to a world organisation?”—[Official Report, Commons, 27/6/1950; col. 2158.]

Apparently, in a letter to his constituency chairman in 1961, he said:

“I think the Government are right to apply to join the European Economic Community”.

One of the joys of the last week or so has been the tweets by Sir Nicholas Soames, who, of course, is the grandson of Churchill. I note that he retweeted a tweet by Charles Grant at the Centre for European Reform, which said:

“As Sir Nicholas Soames’ grandad might have said, the EU is the worst possible way of running relations among European states except for all the others”.

I think there are some things we can do, apart from expressing the remain arguments effectively, to make the British people feel more at ease in the European Union. One is to stop the amount of destabilising change and domestic reorganisation for its own sake in the NHS, local government and the legal system. I am not arguing for stasis when reform is needed, but changing the public and civic realm out of recognition, which has not happened in France or Germany, for instance, makes people nervous, uncertain, bewildered and even frightened, unsure of themselves and their identity, and, all too often, looking for someone or something to blame—and that scapegoat tends to be Europe. I also think that we should stop gold-plating European directives, as has been mentioned.

I make a plea to the Government to go easy on some provocative and partisan policies. I read in the Financial Times that the Prime Minister is advising the Chancellor to ditch his planned raid on pension tax relief because he wants to woo the voters. If the Government would like to do a bit of wooing of the opposition parties in order to create a good cross-party mood of co-operation for the remain campaign, that would not go amiss either. Perhaps the Government could look again at the Investigatory Powers Bill and whether it is a good idea to produce it three weeks after three critical parliamentary reports; at the forced sell-off of social housing; at the attack on Labour Party funding in the Trade Union Bill, which is divorced from a comprehensive reform of party funding; and at slashing the Short money for opposition parties to do their work of holding the Government to account. Perhaps the Government might have a rethink on these policies.

I conclude by hoping that after a remain vote, the Government will pursue multilateral reform inside the EU, working with like-minded partners in a sensible, pragmatic, British way. This was the strategy in coalition of Ministers such as Edward Davey and it must be renewed. That valuable exercise, the balance of competences review, is an excellent basis for doing so. Perhaps then we can get away from using the phrase “Britain’s relationship with Europe”, as the BBC so often does, and remember that if we really want to play a leading role in the EU we have to start by embracing the fact that we do indeed belong to the EU.

European Union Referendum Bill

Baroness Ludford Excerpts

Wednesday 18th November 2015 Lords Chamber

[Lord Hamilton of Epsom (Con)]

My Lords, why do I smell another rat here? It seems to me that this is once again trying to slew the whole playing field, which we have desperately been trying to keep level, in favour of those who want to keep us in the EU. It has been quite established for some time. There is the argument that it is very unfair for these people who have been abroad for more than X number of years that they cannot vote in the referendum. But they cannot vote in general elections either. It is quite extraordinary that we seem to be determined all the time to bring in amendments that will make it more likely that we will stay in the EU than leave it.

[Baroness Ludford (LD)]

Does the noble Lord believe that the Conservative manifesto commitment to raise the 15-year cap in the future is also an attempt to fix the electorate?

[Lord Hamilton of Epsom]

A large number of commitments have been made in manifestos that have not been brought in. That is rather like, by the same token, arguing that this is the moment to change the electoral mandate for 16 and 17 year-olds. Are we going to bring all these changes in on the back of a referendum Bill? Like my noble friend Lord Forsyth, I believe that we should have a constitutional convention to look into all these things. The whole thing is becoming more messy and piecemeal as it goes along, and I certainly do not approve of that at all.

All the time, amendments are being brought forward that are designed to make it more likely that the electoral register will be slewed in such a way that more people will vote to stay in than to leave.

European Union Referendum Bill

Baroness Ludford Excerpts

Monday 2nd November 2015 Lords Chamber

[Viscount Trenchard]

The noble Lord is completely right. As I said in at Second Reading, it is necessary that our renegotiations should include the repatriation of financial regulation, the independence of the Bank of England from the European authorities, and the independence and equivalence of our own financial regulators with those of the European ones, which should be those for the eurozone.

[Baroness Ludford (LD)]

My Lords, in intervening briefly on this group of amendments, I apologise for doing so after having been unable to speak at Second Reading or in Committee last week, because of a serious family illness. I hope that the Committee will permit me to make a brief intervention, despite that absence.

I want to say two things. One has been said more than adequately by the noble Lord, Lord Judd. This concerned the point in Amendment 21 that stresses that the report on withdrawal should cover law enforcement, security and justice. The noble Lord is right: we should listen to the police and others in front-line operational roles. This indeed happened with the exercise of opting back in to 35 measures and that is what was so persuasive. That has been said by the noble Lord, Lord Judd.

Secondly, in supporting this group of amendments, particularly Amendment 21, may I take issue with the noble Lord, Lord Stoddart? He suggested that those of us who are perhaps on the inside have a lack of confidence in the UK. I deny that charge. It is not about lacking confidence in Britain, with its overtones of almost being unpatriotic, a charge I also deny; it is about living in the real world.

May I also take issue with the noble Lord, Lord Blencathra? Earlier, we heard that somehow we know better than the US trade representative. Mike Froman, a senior and serious person, has, in the words of the Financial Times, “poured cold water” on the prospect of the UK negotiating its own trade agreement with the US or with other major trading partners, such as China. He said that the US would have little interest in doing so and that the UK could face the same tariffs as China, Brazil or India. With respect, the noble Lord, Lord Blencathra, suggested that we know better than the US what the US would want to do.

[Lord Blencathra]

I am sorry if I gave the impression that we know better. I am not suggesting that; I am suggesting that we should distinguish between political rhetoric from a member of the US Government, who wants the United Kingdom to stay in Europe for a host of other reasons, and the reality that Americans would face should Britain decide to leave.

[Baroness Ludford]

I had some contact with Mike Froman when I was vice-chair of the European Parliament’s delegation to the US. He is an extremely hard-headed and tough character. I rather doubt that he is just indulging in politics. He is talking about the real world and what is actually negotiable.

This debate on the report on our withdrawal from the European Union has strayed into the set of amendments beginning with Amendment 24, on the alternatives and our future relationship with the EU, which is what I really intended.

[Lord Forsyth of Drumlean]

Could the noble Baroness help me with her great experience in these matters and her knowledge of these trade relations? Could she explain how it is that Iceland, which the Prime Minister visited the other day, has managed to negotiate a trade agreement with China and the EU has not?

[Baroness Ludford]

I am not a trade specialist, but I fully accept that far fewer interests are involved when 28 member states are trying to negotiate with China, while with a country of 60-odd million—the UK—would have many more interests at stake than Iceland. If you listen to the Scotch whisky producers, they say that it is because of EU clout that they have access to Asian markets. They did not get this with the UK negotiating for them, but with the EU negotiating for them.

[Lord Pearson of Rannoch]

My Lords—

[Baroness Ludford]

I will finish, rather than be intervened on from every direction. May I just finish?

[Lord Pearson of Rannoch]

My Lords, as the noble Baroness, like other noble europhile Lords, is praying in aid the recent remarks from the other side of the Atlantic, may I ask her and her colleagues to remember that 15 years ago, in 2000, the International Trade Commission, which I think is the largest economic think tank in the world and advises the US Congress, came over to this country for a fortnight? It took every single department to pieces and concluded that the United Kingdom would then have been much better off had it left the European Union and joined NAFTA, and that the United States would been better off, too. Since then, the trading position between us and the United States makes that claim even stronger, while the position of the European Union has declined and will go on doing so. It sounds as though as these remarks from the United States should be left out of the arguments of those who wish to stay in the European Union.

[Baroness Ludford]

I am grateful to the noble Lord for drawing a 15 year-old report to my attention. Unfortunately, I am not familiar with the International Trade Commission or its report. If he would care to send it to me, I would be more than pleased to read it. I think my point about living in the real world has been well made. The idea of the United States wanting us to join NAFTA is new to me.

In conclusion, it is essential to have these reports on withdrawal. In anticipating the ones on alternatives or the future relationship, I think they will become points of reference. We campaigners on both sides will try to make our point, but we have to give confidence to citizens and a point of reference to check our claims. These reports are essential.

[Lord Davies of Stamford]

My Lords—

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[Baroness Ludford]

Very briefly, on the logic of the noble Lord’s argumentation it seems to me that he should have tabled an amendment asking for a report on the benefits of membership, because he is saying that those of us who want to stay in wanted to put a negative spin on withdrawal—which I do not accept, because we want a factual report. However, turning that round, those people who want to leave should have forced or tried to force a report on the benefits of staying in, because they believe that that would show up that there are not benefits.

[Lord Forsyth of Drumlean]

I would not ask for a report on the benefits of staying in, because it seems absolutely apparent that we are considerably disadvantaged by joining with an organisation which is unable to control its currency or borders, and which prevents us exercising our sovereign ability to control our borders and to ensure that we have the conditions in which enterprise can flourish. I look forward to David Cameron’s initiative in the European Union to discover whether the European Union itself realises how it is damaging member states in the Union. I cannot for the life of me imagine why the noble Baroness would want me to put down an amendment suggesting that we have a report on the benefits when so much damage is caused by the way in which the European Union is organised at present. I support my noble friend’s amendment.

EU: UK Opt-in Protocol (EUC Report)

Baroness Ludford Excerpts

Wednesday 15th July 2015 Grand Committee

[Baroness Ludford (LD)]

My Lords, it is a privilege to take part in this debate. I did not have the pleasure of serving under the noble Baroness, Lady Quin. I am a new member of the Justice Sub-Committee under the chairmanship of the noble Baroness, Lady Kennedy of The Shaws, and I look forward very much to continuing to work on that committee. I spent 15 years in the European Parliament on the relevant committee dealing with justice and home affairs issues. In the five years between the Lisbon treaty coming into force and my stepping down, involuntarily, from the European Parliament, I became very familiar with the exercise of the opt-in under the protocol, and indeed with the whole exercise of the block opt-out, which we will no doubt discuss in the next debate.

As I listened to the noble Lord, Lord Richard, in particular, I could not help trying to suppress a giggle as I thought that this would make a very good satirical sketch. However, the serious point is that the Government are creating a great deal of confusion and legal uncertainty, first, for this House and the other place over the correct parliamentary procedures that should apply to this area. The scenario that we seem to have is that the Government decide after the three-month window, “Oops, we’ve discovered some microscopic JHA element very late in the day—too late to let you guys know that the opt-in enhanced scrutiny procedure applies”. We had a letter dated 3 June 2014 from the Justice Secretary and Home Secretary saying breezily that,

“there may be occasions where the Government fails to recognise JHA content in an EU proposal at the outset. We are endeavouring to keep these occasions to a minimum by raising the profile of JHA content in otherwise non-JHA dossiers across Whitehall”.

There are two possible reactions to that. One is that it cannot be very significant if it is not easily spotted, so why are the Government bothering about it? The second is: get your act together a bit earlier and check what is actually in the proposal.

The second, and perhaps more important, area where confusion and legal uncertainty will be created is with the EU institutions, with the other 27 Governments and with our international partners. That is brought out very well in paragraph 91 of the report, which says that the uncertainty about when and whether Protocol 21 applies is,

“particularly problematic in the context of international agreements, as it would mean that third countries might be unable to assess, when they conclude an agreement with the European Union, to what extent the Union assumes liability with respect to the United Kingdom. This will ultimately affect the correct implementation of the pacta sunt servanda principle, a cornerstone of international law”.

So we have the situation where the Government say, “We think there is JHA content but we didn’t manage to secure a Title V legal base. None the less, we don’t regard the UK as bound by the JHA element”. To say that this is “not an ideal outcome”, as the Government did in a letter of 3 April 2014, is an understatement of the highest order, but of course they assert that the situation did not give rise to legal uncertainty—we just put a statement in the Council minutes and everything is hunky-dory.

It seems to me that, to use a popular phrase or saying, this is no way to run a whelk-stall. There are serious implications for the rule of law, for the uniformity of the EU legal order and for the confidence that our partners, both European and international, can have in our dependability. I cannot see any possible advantage for a country that this year has celebrated 800 years of Magna Carta and the rule of law, which has one of the most admired legal systems in the world and which surely trades on the rule of law probably as much as any other country in the world—indeed, it relies on the rule of law and on everyone else meeting it.

Perhaps I am being rather party political, but the idea that there is a conspiracy against us seems to sum up everything that is wrong with a Conservative-dominated or Conservative-only Government’s attitude to the European Union—“They are out to get us”. Of course it is fair enough to be vigilant and ensure the correct application of the treaties. That in itself is an application of the rule of law. There may be cases where the Commission tries to push the envelope, more out of a sense of, “Well, the Commission would, wouldn’t it?”, because that is the institutional way of trying to ensure that the EU competence is at its maximum, but as the noble Lord, Lord Richard, said, the way to push back against that is to use political and legal arguments with the Council and the Parliament and eventually, if necessary, with the court. Various examples of this have been cited, such as the PIF directive and the road traffic offences directive, where both the Council and the Parliament were convinced that, because of the criminal law element, a Title V legal basis was needed.

Indeed, a current example can be found in the proposed arrangements for Greece, where the Commission is apparently trying to use funds from the European financial stability mechanism, on which I am far from an expert, as bridging finance. That would bring in the UK. The Chancellor may well be right to say, “No, it was agreed in 2010 or 2012 that the UK would not be outvoted in the use of those funds”. In certain circumstances it is perfectly right to use political and legal arguments to make sure that the UK’s legal rights are protected.

Secondly, there seems be an attitude that we find reasons to stay out of projects and be isolated, instead of finding reasons, within the proper framework, to contribute and be seen as a source of positive energy rather than always adopting a negative attitude.

Thirdly, there seems to be so much nitpicking on this matter—arguing for the sake of it. I cite the arguments about the phrase “pursuant to” as a classic example of this. The committee brought this out very well on the money laundering directive. You really could not make it up, but the Government were,

“considering challenging the legal basis of a measure it strongly supports solely to preserve its position on the application of Title V”.

That is the definition of shooting yourself in the foot.

Fourthly, this is the complete opposite of winning friends and influencing and shaping EU policies. I feel strongly that justice, like security and law enforcement, is an area where the UK has a big contribution to make. While respecting all our legal rights, it does us no credit whatever to act in this capricious way.

I wish that the last but one Government, the Labour Government, had never negotiated the opt-in protocol in 2007. I personally believe that we could have relied on our political heft and the emergency brake mechanism, but we are where we are, and since we have to operate it, let us at least work in a spirit of sincere co-operation—not subjugation to Brussels, but as a reliable and dependable member state.

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[Baroness Ludford]

I apologise for interrupting, but I want to make it clear that I was expressing a personal opinion.

[Lord Faulks]

I am grateful for that clarification—a difference between the view expressed by the noble Baroness, Lady Ludford, and that expressed on the part of the Labour Party by the noble Lord, Lord Tunnicliffe.

The United Kingdom’s and Ireland’s justice and home affairs opt-in has been in existence for civil justice, asylum and immigration measures since 1997. It was extended to policing and criminal matters with the Lisbon treaty, which came into force in 2009. The intention was to allow the United Kingdom to protect its specific interests, such as the common law legal system and border controls, while retaining the ability to take part in EU justice and home affairs measures where that was in the national interest.

The noble Baroness, Lady Quin, asked whether the JHA opt-in has proved an effective safeguard. I note that her committee expressed no view as to its desirability—expressly so—but she posed that question and asked whether it was an important or even an essential safeguard. I can tell the Committee that it has been used on numerous occasions to protect the United Kingdom from being required to participate in measures which might adversely affect our border controls or our fundamental legal principles. However, the debate with which we are concerned is essentially about the scope rather than the utility of Protocol 21.

The areas covered by Title V of Part Three of the treaty include some of the most sensitive for us as a nation: immigration and border controls, policing and criminal law. The United Kingdom also retains an ability to opt out of measures that build on the Schengen acquis. The UK takes part in police co-operation and judicial co-operation aspects of Schengen but does not participate in any aspects of the acquis relating to border controls. The Government have not applied to join the Schengen provisions on visas and border controls and have no intention of doing so. Any such move by a future Government will require a referendum, thanks to the 2011 Act. I know that that measure was opposed during its progress through this House, but I now understand that it is part of Labour Party policy that there should be a referendum in those circumstances. I shall not go into more detail on the Schengen opt-out, as that has not been the focus of today’s debate.

Protocol 21 was included in the treaties to make sure that any new proposal that was presented “pursuant to” Title V would not bind the United Kingdom unless it chose to be so bound. However, it is the Government’s view that the drafting of the treaty has created a lack of agreement about when the United Kingdom is able to exercise these rights—whether it is necessary for there to be a Title V legal base cited on the face of a proposal or whether it is where the EU’s competence to act flows from Title V, regardless of the legal base cited.

The noble Lord, Lord Richard, rightly focused on “pursuant to” and what he said was a pretty unambiguous interpretation of those words. Of course, the treaty could have said “under” rather than “pursuant to”. As he and the Committee will know, in the government lawyers’ view, “pursuant to” is capable of interpretation rather more broadly than many, or even most, of the academic lawyers who were called before the committee said.

I recognise that the approach of the previous Government—I know that the noble Baroness, Lady Ludford, distanced herself from the previous Government, although it was a coalition Government—is not shared by others, and that it created some challenges. But it is important to recognise that we do not have a definitive legal view on which interpretation is correct. While I accept that the European Court of Justice has taken some decisions on what is or is not JHA content, it has not set out definitively whether the opt-in applies in the absence of a legal base. Unless and until it does, the Government and others must work according to their interpretation of the treaty. I respectfully suggest that describing the Government’s approach as capricious is a little harsh.

The report on which today’s debate has centred helpfully sets out some of the issues flowing from this lack of agreement. These can be very complex and challenging, and the Government must decide on the basis of the evidence before them—

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[Lord Faulks]

I was going to do that very thing.

“Nevertheless, this does not, in our view, amount to a deliberate undermining of the safeguards in the opt-in Protocol. We note that for internal EU measures on JHA policy, the opt-in Protocol is a very effective safeguard for the UK”.

I note that in the course of the debate there has been a very firm disavowal that there was any deliberate intention by the Commission to, as it were, get round the Title V question, but there is an acknowledgement that it may not always be easy to choose the correct title.

The most recent annual report on the application of the JHA opt-in and the Schengen opt-out, which was published in February 2015, shows that the previous Government took 33 decisions under the two protocols during the period between December 2013 and the end of November 2014. Thirty-one of them were taken under the JHA opt-in. Of those 31 decisions, 18 applied to proposals which did not cite a Title V JHA legal base. They included a directive on customs infringements and sanctions, a decision establishing a European platform to enhance co-operation in the prevention and deterrence of undeclared work and several third-country agreements which created legal obligations in the JHA field.

These are all examples of legislation with a JHA impact on the UK that did not cite a Title V legal base. If unsuccessful in changing the legal base, these are the types of cases where a change of approach might mean that the UK cannot exercise its right not to be bound.

The Government are committed to considering carefully any changes to their approach to the opt-in to ensure that we can lawfully exercise the UK’s right under the treaty to protect our national interests by retaining control of our policing, justice and immigration systems. The committee’s detailed report has given the Government a great deal to consider. We do not believe it is in anyone’s interest to rush the process of responding to it, although of course I take on board the criticism that has been made of the delays.

The Government have sought to ensure that the committee and Parliament are kept updated and sighted on developments in individual cases and the policy as a whole. As was acknowledged in the debate, the Justice Secretary and the Home Secretary wrote recently to the committee to let it know that this subject is still under consideration and that the Government would provide a response to the committee shortly. That raises the question of what “shortly” means. I am afraid that the answer is that it will not be until after the Recess. I know that there has been regret about that, but it is important that the content of this detailed report, and indeed of the debate, are fully taken on board by the new Government.

The noble Baroness asked about one particular issue which also forms part of the conclusions—whether we should be thinking of an inter-institutional agreement. I think the noble Lord, Lord Dykes, asked questions about that in the course of the evidence. It is something that will certainly be considered. When the Government have concluded our consideration of the policy as a whole we will take forward such engagement as is appropriate.

The issues relating to the protocol are complex and technical, and go, as I am sure the Committee will accept, to issues of sovereignty in the very sensitive areas that JHA co-operation deals with—policing, criminal and civil law, and immigration and asylum. As the noble Lord, Lord Tunnicliffe, said, the JHA opt-in is extremely important to us.

We note what has been suggested about the litigation strategy. That is something that will be taken very carefully into account.

The Government are concerned, of course, to reflect the protection that the opt-in gives the United Kingdom on these important areas. We will consider carefully our approach to that. The process is not yet complete and we believe, as I have indicated, that we should take time to get it right.

The debate as to the proper approach and whether it should vary from that taken by the coalition Government will be influenced very much by the careful consideration by the committee and the evidence that it called for, which is well summarised by the report. I am grateful for all the contributions to this debate.

[Baroness Ludford]

Before the Minister sits down, I want to clarify that, although he said that I distanced myself from the previous Government, I did not. I distanced myself only from the attitude exemplified in the report. I am, in fact, very proud of the heavy lifting done, in particular, by the former deputy Prime Minister which ensured that the UK stayed in the 35 policing and criminal justice measures. It is no secret that there was disagreement between the coalition partners on these matters. While I am at it, let me say that I was expressing a personal view on Protocol 21, but that does not, of course, extend to the Schengen protocol, which governs border issues.

[Lord Faulks]

I am not going to go into the detail of who was or was not in favour of particular matters that were opted into or opted out of. The noble Baroness referred in the course of her speech to the rule of law, Magna Carta and “pacta sunt servanda”. I assure her that this Government take the rule of law and the desirability of honouring agreements extremely seriously. The commitment of this Government to those remains extremely profound.