Conduct Committee Report

Debate between Baroness Smith of Basildon and Lord Brown of Eaton-under-Heywood

Wednesday 2nd December 2020 Lords Chamber

[Lord Brown of Eaton-under-Heywood (CB) [V]]

I apologise, although I do not believe it to have been my fault. As I was saying, the noble Lord, Lord Balfe, and the noble Baroness, Lady Smith, have established what we have long felt—that this is an extremely problematic area of our code on which we have deliberated long and hard to try to achieve these definitions.

On the main question raised by both speakers, of course there are difficulties in deciding whether a particular organisation is controlled by the Government. These matters are dealt with in Paragraph 9 of the report. But as the report is at pains to show, there are two guiding principles. The first is that what reasonable members of the public might suppose to be the position here, along the lines of Huawei and so forth. If it may be thought by the public that an organisation is foreign state-owned or state-controlled, there is a clear and categoric obligation to disclose that fact. However, there is always the power of consulting the registrar, so there is help from that quarter. There is also the enduring obligation that in case of doubt, a Member should err on the side of registration.

We have not felt able to be more specific than that. If anyone feels that they have a clear solution to this riddle, we would be delighted to hear it. In the meantime, we feel that this is the best that we can offer.

With regard to corrupt and repressive regimes, your Lordships will see that this was dealt with in an earlier report. Paragraph 1 of the report points that out. We are trying to help further, in paragraph 17. Of course, these are highly difficult concepts, but this is open to Members—and one hopes that they will avail themselves of this—to consult the registrar and, if in doubt, an obvious course would be to effect the registration. As to the date of earnings, we have tried to be helpful and to minimise the administrative burden on Members by taking the same date and concept for declaration of earnings as one uses for one’s tax returns annually, to 31 January—to do one’s earnings in relation to the tax year. That is why the first proposed registration is for 1 January to 5 April 2021.

I hope that deals with most points. Your Lordships will have seen that we continue to consult on this and deliberate in this field. On the question of guidance for the registrar, it is the registrar whose decision ultimately rules on the question of exemptions. Again, it is difficult to see how one could improve on that. To address a point made by the noble Lord, Lord Balfe, I hope this is not an absurd, fanciful and unhelpful suggestion, but if we assume that one of our enormously distinguished doctors in the House, who contributes greatly to the proceedings of the House, has as a patient some foreign head of state, Prime Minister or whatever, and is consulted by him professionally—that must surely be confidential. He cannot possibly say: “I’ve been treating that king for piles” or whatever it is. It would be a gross abuse of professional privilege and confidentiality. That is the sort of situation one could get into. Therefore, if you had this report without the possibility of exemption, you would require somebody such as that doctor to take leave of absence and cease to participate in the House. I am not sure that I can do any better than that. I fear that nothing I can say will entirely satisfy all the questions that such a report inevitably raises.

[Baroness Smith of Basildon (Lab)]

My Lords, I have listened carefully to the noble and learned Lord, Lord Brown. He has tried to answer, and he has hit the nail on the head when saying that it explains the difficulties. However, the committee must look again at two things that he referred to as a matter of urgency. This report takes us some way forward, but not far enough. The point he made about a medical person who contributes to the work of this House but who is treating somebody in confidence does not explain why there cannot be any registration at all. Surely the registration could be declared. The confidentiality of who is being treated might be an issue, but who makes that decision? That is the central point. At present, the person who makes that decision is the Peer. When we talk about exemptions, that is not acceptable. I do not intend to divide the House against the report, which takes us a step further forward, but there are inadequacies in it which I hope the noble Lord will take back to the committee and address as a matter of urgency.

[Lord Brown of Eaton-under-Heywood (CB) [V]]

We will certainly take back and consider all the points that have been made. On the substantive question that the noble Baroness raises, I have no doubt whatever that the Member would say that he practices as a doctor in a given field for clients internationally as well as at home. I do not know whether that would be regarded by her as satisfying that aspect of the register of interests. Subject to that, of course, we will look afresh in the light of all the helpful comments made by Members.

Brexit: Parliamentary Approval of the Outcome of Negotiations with the European Union

Debate between Baroness Smith of Basildon and Lord Brown of Eaton-under-Heywood

Monday 28th January 2019 Lords Chamber

[Lord Brown of Eaton-under-Heywood (CB)]

My Lords, it is imperative in my view, doubtless in common with the great majority of your Lordships, that we reach a deal. I believe that the Government themselves also feel this.

I do not believe that there is any greater chance of the Prime Minister allowing a no-deal Brexit, than there would be—obviously, in very different circumstances —of her authorising a nuclear strike. I am not suggesting that each would cause comparable devastation: plainly, that is not so. Indeed, it is a ridiculous thought. The critical point, however, is that it is vital to keep the risk of each—the possibility of each, however small—in play.

Obviously, no one, however passionately opposed to our maintaining a nuclear deterrent capability, could, while we continue to have it, seek to persuade Parliament to legislate against ever deploying it. Its value as a deterrent lies in the risk, however faint, that in retaliation we just might. So too, I suggest, with the possibility that we just might crash out of the EU. While that possibility exists, it must surely operate as an incentive for us to reach a deal. It is an incentive, let it be emphasised, on all—both on our own Members of Parliament and on the EU negotiators.

It is nothing short of absurd to argue that Parliament should now legislate to take a no-deal Brexit off the table. That would either force us to accept a less favourable deal than we might otherwise get or, alternatively, force us to stay in the EU.

I confess that at heart I remain a remainer, but I have finally come to accept that there should not, and now must not, be a further referendum, certainly not one that still caters to the possibility of remaining in the EU. The only conceivable further vote could be on a choice between accepting the deal on offer and exiting with no deal. But I would not legislate to take the possibility of remaining off the table either.

What of the proposed legislation to force the Prime Minister, if by 26 February she has still not achieved a parliamentary vote for a deal, to request of the EU an extension of the Article 50 process? This, I suggest, would again have the inevitable consequence of lessening the urgency of the need to agree a deal. Everyone acknowledges that EU deals are habitually reached at the 12th hour. Postpone the 12th hour, delay the date by which agreement is required and on would go this ever more depressing and debilitating process.

I do not know whether any of your Lordships have had the time or inclination over recent weeks to watch “Question Time”, now chaired by the estimable Fiona Bruce. I have watched them, and to my mind they have made one thing clear beyond all others: the general public—not every individual, of course, but the great majority—ache for a final end to this saga and are ever more critical of the politicians at Westminster for failing to bring this question to a conclusion.

I recognise, as plainly does the Prime Minister and, for that matter, the EU, that the closer to the 12th hour that any deal is agreed, the more obvious will be the need for what would, we hope, be only a short extension of the Article 50 process for the necessary legislative steps to be completed to give effect to it. But that request for an extension can and, I suggest, properly should be left to be made when the deal is struck, not in anticipation of failure and according to a given timetable.

In the last debate I voted in favour of the Motion tabled by the noble Baroness, Lady Smith. I regret having done so for this reason: in my speech I made it explicit beyond question that I supported the Prime Minister’s deal and was urging Members at the other end to accept it, notwithstanding that the opposition Motion still included some criticisms, although markedly fewer than in the previous, pre-Christmas debate, of the deal’s likely adverse consequences. The noble Lord, Lord Butler, likewise voted for the Motion while also supporting the Prime Minister’s deal. We were therefore dismayed to hear the Opposition Bench thereafter, and indeed again today, lumping together all those who had voted for the Motion as having voted to reject the deal and calculating the majority accordingly.

[Baroness Smith of Basildon]

My Lords, I am sorry to interrupt the noble and learned Lord but perhaps I may just correct him. If he checks my comments of today in Hansard, I think he will see that I have made it clear that this House rejected no deal. My other comment was that we soundly rejected how the other place expressed its views on the Prime Minister’s deal. I made no reference in my speech today to our comments on the Prime Minister’s deal.

[Lord Brown of Eaton-under-Heywood]

I am grateful for that; clearly, one would always accept a clarification. I confess that I understood that what came from the Front Bench was to regard the votes of all who supported the Motion as votes against accepting the deal on offer. If I am wrong, of course I withdraw that point.

In any event, I shall not be supporting the opposition Motion this time. Despite the earlier intervention by the noble Lord, Lord Butler, I suggest that it is expressed in such abstract terms—it uses the hallowed word “appropriate”—begs so many questions and seems so elliptical in what it is inviting that it is mischievous rather than self-evidently helpful. I fear that it, too, could be misrepresented, at least to this extent. It could be misrepresented as support for legislating against a no-deal Brexit or compelling the Government to request an extension of the process, both of which—for the reasons I have already sought to give—I would regard as weakening the Government’s negotiating position and thus prejudicing the prospect of an acceptable early resolution of this most ghastly saga.

Immigration Bill

Debate between Baroness Smith of Basildon and Lord Brown of Eaton-under-Heywood

Wednesday 5th March 2014 Lords Chamber

[Lord Brown of Eaton-under-Heywood (CB)]

My Lords, I have the misfortune to oppose these amendments and to take a different view, therefore, from that already indicated by earlier speakers. I welcome the general thrust of Clause 14.

It is hardly surprising that the Government are intent on clarifying as plainly as possible in primary legislation their policy with regard to Article 8 and the interests that Article 8 furthers. Initially they sought to do this by way of changes to the Immigration Rules back in June 2012 but the courts then said, correctly, in the judgment of the Upper Tribunal in a case called Izuazu:

“Only the Parliamentary process for primary legislation permits a clause by clause discussion of the measures, with opportunity for amendments and revision”.

A little later the judgment quoted from a recognised work on constitutional and administrative law, as follows:

“An Act of Parliament has legal force which the courts are not willing to ascribe to other instruments which for one reason or another fall short of that pre-eminent status”.

It is not that the rules are vulnerable to legal challenge. As the noble Lord, Lord Pannick, rightly said, in a recent case the Master of the Rolls made it plain that the rules, for what they are worth, are perfectly lawful. But it is in these circumstances that the Government—to my mind, unsurprisingly—have chosen to translate their policy into primary legislation. Indeed, the Minister made this plain in his response to an earlier group of amendments.

In the past, courts have rather too often tended to thwart the attempts of the Government to control immigration and deport foreign criminals on the basis of Article 8 interests. On occasion, they have carried the reach of this article beyond even the lengths to which the Strasbourg court itself has gone, and that court is no mean exponent of the art of dynamic and creative interpretation of the convention. Indeed, I said as much in a dissenting judgment I gave in 2011 in the Supreme Court in a case called Aguilar Quila. In that case, in reliance on Article 8, my colleagues struck down as not proportionate to Article 8 interests an immigration rule designed to combat the evil of forced marriages. I concluded there that:

“Article 8 is a difficult provision which has already led to some highly contentious, not to say debateable, decisions. Upon that I am sure we would all agree. In a sensitive context such as that of forced marriages it would seem to me not merely impermissible but positively unwise for the courts yet again to frustrate government policy except in the clearest of cases”.

I do not say that the deportation even of foreign criminals is as sensitive a matter as preventing forced marriage but, undoubtedly, it is one that gives rise to wide public concern.

I am strongly in favour of the United Kingdom remaining fully committed to the European Convention on Human Rights—and the Human Rights Act, which gives effect to it domestically. However, I can think of nothing more calculated to induce government to conclude that the nation’s better interests may in fact be served by abandoning our convention commitments than the continual frustration of government policy by an overenthusiastic interpretation and application of the convention, not least Article 8.

The amendments proposed here, particularly those of my noble and learned friend Lord Hope, for whom I have the utmost respect, and my noble friend Lord Pannick, eliminate from the face of the provision the relevance of foreign prospective deportees, and criminals in particular, having been here unlawfully or with only a precarious immigration status when their private lives or relationships were established. The Joint Committee’s recent report very helpfully looked afresh at this provision. Even it did not suggest that these were irrelevant considerations. On the contrary, the particular amendments that the committee proposed at paragraph 111—not, if I may say so, that anybody has yet explicitly adopted them—recognise and acknowledge the relevance of these sorts of consideration. Logically it would follow in the specified circumstances when someone is here unlawfully or under a precarious immigration status that the court would give less weight to whatever private life and relationship interests they have managed to build up. Why therefore not say so? That is precisely what Clause 14 now does. I do not see any distinction—certainly no critical one—between giving interests built up “little weight” and giving them less weight.

Judges will continue to honour their oaths to decide cases independently and objectively. Their entitlement to do so is by no means removed by this clause. In so far as in any particular case the judge considers that absolute Article 8 obligations require that there be no removal of the person concerned, there is nothing in this legislation to drive a contrary decision. Judges can give effect—indeed are duty bound to do so—to that conclusion as to the requirements of Article 8. However, government are entitled—it is what they are doing here in primary legislation as plainly as may be—to set out what their policy is and what they regard as the critical considerations in play in these cases. In short, I see much to be said in favour of this clause and nothing substantial to be said against it.

A final word just on children: clearly the best interests of all children, not just qualifying children, remain a primary consideration in all cases. Qualifying children are a particular concept introduced in respect of the removal of foreign criminals. Surely it is not difficult to see why their situation is singled out for particular special treatment. I am agnostic and neutral on whether that consideration should be spelt out not only under Section 55 of the 2009 Act giving effect to the interests of all children under our international convention obligations but also in this particular provision. It may not be thought necessary but if it is, so be it. However, I support the clause as a whole.

[Baroness Smith of Basildon]

My Lords, as a non-lawyer, I always take some comfort when the lawyers disagree on an issue. I have already stated our position on Article 8. We consider it right for Parliament to set out how the qualified rights of Article 8—the right to private and family life—should be balanced. However, as I think I indicated previously, we share those concerns that some decisions have been taken where we would ask whether the qualifications to Article 8 had also been appropriately considered when assessing the right to private and family life. I would disagree with the noble Lord, Lord Pannick, on that point.

However, I share his anxieties about some of the rhetoric around this debate. I recall the Home Secretary telling the Conservative Party conference that one individual had had his leave to remain granted on the basis of his private life and his family relationship with his cat. That proved to be absolute nonsense and unfair. There is a duty on all of us when discussing this issue to be measured and fair and to ensure that our facts are correct on all occasions.

I would like to probe a couple of areas with the noble and learned Lord. This may be the first debate on this where equal numbers of lawyers and non-lawyers have taken part. The noble Lord, Lord Pannick, and my noble friend Lady Lister made points about the language of the clause. The Government raised the issue of the interpretation of the legislation. However, I do not know whether any other legislation uses the term or gives advice that “little weight” should be given. If there are problems about “little weight” in terms of definition, will there be any clarification from the Government around interpretation for those taking these decisions? We are introducing a concept that could create the same problems around interpretation. It is appropriate that Parliament should state for the benefit of judges how we expect the interpretation to take place if the language is not familiar to them. That appears to be a problem in such cases at present.