Police, Crime, Sentencing and Courts Bill

Debate between Lord Beith and Lord Mackay of Clashfern

Lords Hansard - part one & Committee stage
Monday 22nd November 2021 Lords Chamber

[Lord Mackay of Clashfern (Con)]

My Lords, some time ago when the Hillsborough matter was before this House, the noble Lord, Lord Rooker, I think, and I put forward a suggestion that the coroner in an inquest should have power to allow a public authority, or an authority with resources, to put forward a defence using lawyers for that purpose, and that a condition of granting such permission should be that the authority is responsible for providing the necessary funding for the relatives of the deceased to be represented. The choice of who they would use, of course, would be for the relatives, but the provision of the necessary money would be a matter for the authority—at the level at which the authority wanted to do it—so that there would be obvious equality of arms.

I think it is a much better solution than legal aid. Needless to say, I have had, some time ago, some experience of dealing with legal aid. I had the authority as Lord Chancellor to grant legal aid in specific cases that I thought required it, but I think it is much better, fairer and less burdensome to the public, that this should be the rule. It seems to me this is quite easy to systematise when you have more than one of these authorities. Hillsborough is a good example of what happened when there was no proper representation for some of the relatives. This is a suggestion that goes along with the spirit of the first amendment the noble and learned Lord has put forward, and I venture to think that it is an effective point of view.

I am glad to see that the noble Lord, I referred to has returned because I think he will probably remember that he and I were pretty well agreed about what should be done. Needless to say, the Home Office said it would be reviewed when the details of Hillsborough, the prosecutions and so on, were finished. Of course, that happened some time ago, but I see no sign of any kind of innovation from the Home Office, until it agrees with this amendment in spirit.

[Lord Beith (LD)]

We have always been able to rely on the noble and learned Lord, Lord Mackay, for ingenuity when difficult problems have to be resolved. This one seems to have got lost in the Home Office somewhere. That is a pity because the problem that these amendments raise is long-running and serious. It is open to discussion, whether the amendments are the best way of dealing it, but I do not think we can go on ignoring it or failing to deal with it in any adequate way.

European Union (Withdrawal Agreement) Bill

Debate between Lord Beith and Lord Mackay of Clashfern

Consideration of Commons amendments & Ping Pong (Hansard): House of Lords & Ping Pong (Hansard)
Wednesday 22nd January 2020 Lords Chamber

[Lord Mackay of Clashfern (Con)]

My Lords, I would like to say a word or two about the two amendments in which I had an interest. I am sorry that my voice is not quite up to it, but it is better than it was yesterday.

I am very glad that the situation now is that Parliament can act and get on with what is required. Clause 26 is the one I am interested in. Your Lordships will remember that the noble Lord, Lord Beith, moved an amendment to take out the provision which required a selection of courts to be made in a statutory instrument. I had understood that the Prime Minister had said that he wanted all courts to be able to deal with this matter in some way. By a majority of around 100, those in the House of Commons preferred that situation to what he said—that must be a matter of some interest. So far as I am concerned, I was extremely anxious to uphold what the Prime Minister said in his answer during the election.

Those in the Commons do not say that my amendment is unsuitable, but that it

“does not deal appropriately with the issue of domestic courts departing from the case law”.

But they do not say that their own provision is necessarily suitable either. I am sure that I, and all my noble and learned friends who spoke on these amendments, would be very willing to offer any help that may be required when it comes to promoting this statutory instrument.

[Lord Beith (LD)]

I wonder if I might be allowed to follow the noble and learned Lord, since we are discussing the amendments to Clause 26. He made such a bold and ingenious attempt to provide the Government with a reasonable platform on which they could deal with this problem.

I am faced with words from the House of Commons that my amendment would not leave an appropriate means of dealing with

“the issue of domestic courts departing from the case law of the European Court after IP completion day”—

but nor does the Bill as it stands. It relies on the use of a regulation-making power, under which any or all courts could be included, including lower courts which do not have the capacity to bind other courts and therefore can make many inconsistent decisions. It still leaves the Government with the power to, effectively, impose a different, unspecified test.

This is a very unsatisfactory situation, but the best thing that the Government can now do, since they have failed to accept either my amendment or that of the noble and learned Lord, Lord Mackay, is think very carefully before proceeding, because there is already sufficient statutory provision in place in the 2018 withdrawal Act, under which the Supreme Court and the High Court of Justiciary can do the job of deciding to depart from European case law. Should the Government wish to extend that to some other courts, perhaps to appeal courts, they will probably find sympathy and support in the House, but should they try to bring forward proposals by way of regulations of the kind that were widely discussed by very experienced colleagues around the House, they will meet resistance at that stage.

European Union (Withdrawal Agreement) Bill

Debate between Lord Beith and Lord Mackay of Clashfern

Report stage & Report stage (Hansard): House of Lords & Report: 1st sitting: House of Lords & Report: 1st sitting
Monday 20th January 2020 Lords Chamber

[Lord Beith]

My Lords, I rise to move Amendment 12. This amendment will not delay Brexit. It will not even delay this Bill, which is going to the Commons in any case. However, it will avoid a great deal of legal confusion and safeguard the independence of the judiciary. It reflects concerns held by the Constitution Committee, several members of which have taken part in the debates, including of course our chair, the noble Baroness, Lady Taylor. The background is that European Court of Justice case law will be relevant in interpreting retained European law. We recognised that in the 2018 withdrawal Act and made provision for it to be dealt with, so that the Supreme Court and the High Court of the Justiciary would be able to depart from EU case law when they thought it right to do so.

Clause 26 of this Bill gives Ministers very wide regulation-making powers to decide which courts can depart from CJEU case law. It could be any court, right down to the magistrates’ court, the county court or the sheriff court. Through unamendable statutory instruments, Ministers could decide what test the courts should apply when considering whether to depart from EU case law. Ministers could effectively direct the courts to disapply case law in specified circumstances. Bear in mind that lower courts cannot bind other courts, so we will have conflicting interpretations and a lot more litigation as a result.

These are not appropriate powers to be exercised by regulation. They open the way to ministerial interference with the courts. If any of this needs to be done, it should be done in primary legislation. I would have been happy to see provision in the Bill to extend the powers in the 2018 Act to the Appeal Court and the Inner House of the Court of Session, for example. However, I have tabled these amendments on Report because last week’s proceedings in Committee were inconclusive. I said then that when such serious concerns are raised by so many noble and learned Lords, including those with a lifetime of experience in interpreting the law, Ministers need to think again and respond.

I encouraged the noble and learned Lord, Lord Mackay of Clashfern, to use his skills when he spoke in the debate to think of ways in which we could get through this and to encourage Ministers to do so, which he certainly has. Amendment 14, his valuable amendment in this group, would be very helpful. It does not do all the things I sought to do by deleting some of these powers, but it would very much clarify the situation I am worried about, of lower courts making rulings which conflict with those of other courts. If the noble and learned Lord decides that he wants to press his amendment to a vote, in circumstances which I will refer to in a moment, I would be happy to make way by withdrawing mine in due course to enable him to do so. I hope he can make it clear to us when he explains his amendment whether that is the course of action he wishes to take.

I said that reconsideration was necessary. I believe that such reconsideration had taken place and that the noble and learned Lord, Lord Keen of Elie, was ready to move an amendment at Third Reading which would have met all our concerns. I have a copy of that draft amendment. The noble and learned Lord was expected to wind up this debate, but is no longer doing so. That seems very significant to me. I think he knows full well that the Bill as it stands would be a source of legal confusion and would lead to this danger of Ministers having the power to impose an unspecified new legal test on the courts, a test which could not be amended by Parliament. Parliament is about to make bad law which Ministers know to be bad. I am afraid that my conclusion is that No. 10 Downing Street is in a sulk because this House carried an earlier amendment to the Bill. The noble and learned Lord, Lord Keen, is an entirely honourable man who serves the House very well and is always a man of his word. I think his absence from the debate at this stage indicates that some exchanges in the Government have led to this House being asked to make law that it knows to be bad. I beg to move.

[Lord Mackay of Clashfern (Con)]

My Lords, when we debated this clause in Committee, we looked at two key provisions: which courts should be able to look at this matter, and what the test should be. I was particularly concerned about saying what the test should be, because I regarded that as an interference with judicial independence—and I still regard it as such. If Parliament sets out the test, as it did in the 2018 Act, for the Supreme Court and the High Court of the Justiciary, that is the law and the courts can therefore take it and act on it. However, it seemed to me and a number of your Lordships that it was not proper for a Minister to deal with the judiciary in these circumstances. Having the Minister set what the test should be by regulation really should not happen. That was the conclusion of the debate in Committee, generally speaking.

When I thought over that, I concluded that we were blocking altogether what the Government were seeking to achieve. I therefore felt strongly that it was my responsibility, along with others, to see whether there was some other way of dealing with this problem. I have thought about it a good deal and, as I understand it, the Prime Minister said that he was in favour of every court being able to deal with this matter. I was anxious that my proposal should achieve that, if at all possible, because he had said that in good faith as part of his election campaign. Therefore, I felt that I should try to think up an amendment which gave that power. Amendment 14 does that because it allows any court in the United Kingdom to consider this matter and make a judgment on it. However, because of the nature of the judgment, there is a requirement that it be referred to the Supreme Court, which should have a power to grant the result, on condition that it has a power not to hear it if it feels that the application was not very substantial or very good, as it has for many appeals in the ordinary course of events.

I can see that having that sort of burden on the Supreme Court might be rather disagreeable. Therefore, it was quite reasonable to think of giving that power, the result of the reporting power, to the Court of Appeal in England—I think Wales and Northern Ireland would also be covered by that—and to the Inner House of the Court of Session in Scotland, which is its equivalent. The High Court of Justiciary would of course also have that responsibility in criminal cases. I am very open to negotiating how this should happen, but I venture to think it important that we consider this issue carefully. I hope that your Lordships may feel that we should pass this amendment.

--- Later in debate ---

[Lord Beith]

My Lords we are no further forward at all on which courts it is intended shall acquire the power; on what the test they will be required to carry out is; or on any reliable process by which we can ensure that Ministers do not get involved in specifying the circumstances in which courts, at any level, can depart from existing case law. The beauty of the amendment in the name of the noble and learned Lord, Lord Mackay of Clashfern, is, as he explained, that it seeks to satisfy the Government’s objective—as restated now by the noble Lord, Lord Callanan—that any court in the land should be able to engage in this process. This is not a very wise thing to do but, if it is going to be done, it should be done with the protection suggested by the noble and learned Lord: that it should involve a reference process which the Supreme Court can take up if it sees reason to do so. On that basis, and knowing in what high regard the noble and learned Lord is held, I am content to seek the leave of the House to withdraw my amendment, so as to facilitate him pressing his.

[Lord Mackay of Clashfern]

It would be right for the noble Lord, Lord Beith, to continue with his two amendments, because I am proposing the option in my amendment in the event of his disappearing. I think I am right in saying that. I may be wrong; I stand to be corrected. I understood from the Public Bill Office that I did not need to put my name to Amendments 12 and 13—in fact I could not, because there were four there already. It may be that those amendments should just stand.

[Lord Beith]

The consequence of my amendment, if it was carried, would be that the amendment in the name of the noble and learned, Lord, Lord Mackay, could not then be taken, because the words upon which it bites would have been removed. I would be content to divide on my amendment, to test the opinion of the House.