Scotland: Devolution

Lord Bew Excerpts

Wednesday 29th October 2014 Lords Chamber

[Lord Bew (CB)]

My Lords, the noble Baroness, Lady O’Neill, has already made this point very strongly. There is one respect in which the referendum result in Scotland has been stabilising for the rest of the United Kingdom, and that is with respect to the experiment in Northern Ireland. There is no possible way, if Scotland had elected to leave the United Kingdom, it could have been stabilising in its implications for Northern Ireland. As a strong supporter of the settlement embodied in the Belfast agreement, along with the noble Lord, Lord Empey, who worked so hard both to see the Belfast agreement pass in a referendum and also to maintain the institutions in the first few difficult years, I am delighted by that really excellent outcome.

In more general terms, however, the mainstream English political mind has had a problem for a century, which is that it tends to be too sentimental about devolution as the answer to problems in the United Kingdom. It may be absolutely necessary—and I have already said that I believe it is absolutely necessary for Northern Ireland, and I accept, in the context in which we live, for Scotland and Wales—but nor has it worked in the way that it was expected to work and we must face up to this. There is a reason for that, I think. For much of the century people believed that, if only we had achieved devolution as a settlement for Ireland, we would have avoided all the violence and the separation of Ireland from the rest of the United Kingdom, but this fine magical solution, because of short-sighted behaviour of some major political players, was not made available to us.

However, the Scottish experience of the last few years raises a major question about that. Scottish nationalism, which I accept is a serious force, does not have anything like the deep historical roots of Irish nationalism, yet it came to the point where 45% of Scots, after a sustained period of devolution, were prepared to vote for separation. Anybody, therefore, who thinks that had we had devolution for Ireland earlier in the century that would automatically have switched off the separatist urge is, I think, deluded. None the less, the idea is there and we think about it in a sentimental way.

Often the poor performance of the devolved regions—look, for example, at the performance of Wales in terms of its educational structures in international tests—does not receive the attention that it should. We say, again and again, “Local people making local decisions—it is going to work and it is going to be better”. Actually, not all the figures, if you look at the educational culture of the devolved regions at any level, would for example suggest that that is necessarily the case. In this debate, many noble Lords whose opinions I greatly respect—

[Lord McConnell of Glenscorrodale]

Perhaps the noble Lord would address this point. There is a feeling in Scotland that at least part of that accumulation of support for independence is due to increased confidence. That is partly because Scotland’s performance economically today compared to the rest of the United Kingdom is significantly better than when the Parliament was established. Population decline has been reversed and a number of other improvements in Scottish society have been made. That confidence is perhaps part of the reason why people feel they can take on the additional powers of independence.

[Lord Bew]

I accept the noble Lord’s point, but the same point could be made about Irish nationalism, which also becomes more intense at certain points when there is more self-confidence as a result of good economic performance. Indeed, in the period leading up to Ireland’s break with the United Kingdom, the First World War was a tremendous boon for Irish farmers and most people in Ireland were farmers. So I accept the point.

On the issue of the federalist moment, which so many have conjured up this evening, I have no intellectual objection to it and I understand its appeal, but I just want to express one point of scepticism. In 1910, all the major parties and all the major players had a serious interest in separatism, with Winston Churchill at the heart of it. Why? Because they could see the Irish home rule crisis about to come and they could see the threat of civil war. They could see the danger that the unwritten rules of the British constitution were going to be absolutely torn apart. Federalism was the wonderful, magical way in which all these contradictions could be resolved, everyone could be happily secured in their identity and the Irish could be given the substance of what they wanted. If we could not do it then, when the political class on all sides thought that this was the right way to go, are we likely to be able to do it now, when the pressures are nothing like so great? It may be so, but—this is not a judgment on the concept of federalism; it is a judgment on just what it requires to get people to move in that direction—I am not sure that we are quite there at this point.

The noble Lord, Lord Forsyth, has already made the point about the reduction of MPs in Westminster from the devolved regions being the obvious solution to the West Lothian question. When I met the McKay commission, I made exactly the same point as the noble Lord, Lord Lexden, that this was the approach adopted with respect to Ireland. It is the obvious and logical way of approaching that question. However, we are now in a situation where the McKay commission has decided to go a different way.

I just want to say a couple of words about that commission, because noble Lords are afraid of too speedy a reaction. Sir William McKay, a former Clerk of the House of Commons who deeply respects its traditions, has produced an answer to this difficulty that does not create two fundamentally different classes of MPs, which is the great danger at stake, but allows a greater register of English opinion. If we are in the situation where the West Lothian question will not go away—currently, it is the Conservative Party that is most active on this; in the 1960s, it was the Labour Party, which was furious that a Labour Government with a majority of only five or six had to put up with 12 Ulster Unionist MPs and Labour MPs could not ask questions about what was going on in County Antrim—today it is a different party that finds the West Lothian question hard to endure. However, if we are in a position where we have to act on this matter, a report of this sort may not have the answer but deserves some serious consideration.

Above all, the characteristic of that report, as we might expect from William McKay, is what the union requires to survive: it is dominated by the language of civility. That is the sine qua non for the survival of the UK as we approach these problems.

Civil Procedure (Amendment No. 5) Rules 2013

Lord Bew Excerpts

Monday 29th July 2013 Lords Chamber

[Lord Marks of Henley-on-Thames]

My Lords, I fully respect the concern of the noble Lord, Lord Beecham, to scrutinise these rules, and I share his view that they are of considerable importance. However, while of course we all accept that these rules ought to be debated, I find this regret Motion and its terms somewhat puzzling.

Along with many others on these Benches, I spoke and voted during the passage of the Justice and Security Bill for amendments that implemented recommendations of the Joint Committee on Human Rights, many in the name of the noble Lord, Lord Pannick, and others. However, I also ultimately accepted that with the safeguards we secured, it was better to enable those few cases which otherwise could not be heard at all, because open hearings would jeopardise national security, to be determined using CMPs. Since then, as the noble Lord, Lord Pannick, has pointed out and the noble and learned Lord, Lord Goldsmith, has amplified, we have had the Bank Mellat case with the trenchant criticisms by the Supreme Court that the application was made. However, those criticisms were applicable to the particular circumstances of that case. It is important and significant that the case nevertheless gave the Supreme Court the opportunity to spell out the principles that ought to be applied when the courts are considering closed material proceedings. I join the noble and learned Lord, Lord Goldsmith, in welcoming those principles, and with the noble Lord, Lord Pannick, in seeking clarification that they still apply. For my part, it seems that they can and do apply under these rules. It was interesting to note that the first Section 6 declaration application has been a claimant’s application, thus vindicating in a startling way our important “equality of arms” amendment.

The reason I find the noble Lord’s regret Motion puzzling is that the rules as drafted contain nothing that we would not expect and omit nothing that we would expect, given the Act we passed and the safeguards we built in. I will briefly give one or two examples. The central point of Part 2 of the Act is to permit CMPs to enable security-sensitive material to be used in litigation without compromising national security. The rules provide for a modification of the overriding objective, as has been pointed out, to ensure that information,

“is not disclosed in a way which would be damaging to the interests of national security”.

The court must still deal with cases justly and in accordance with the overriding objective. I suggest that the modification is the minimum necessary to bring the overriding objective in line with the decision of Parliament to enact the legislation. Furthermore, the court is still specifically bound, as the Minister pointed out, by Section 14(2) of the Act to give effect to the fair trial requirements of Article 6.

Earlier today, Liberty circulated a briefing which suggested that the amendment of the overriding objective is,

“an attempt to undo the modest amendments made to section 6 of the Act as it passed through Parliament. Namely Parliament’s insistence that before an application for CMP can be granted, a court must be satisfied that ‘it is in the interests of the fair and effective administration of justice in the proceedings to make a declaration’”.

That is simply wrong and I regret that I must disagree with the noble Lord, Lord Beecham. The rules are subordinate. They must be read subject to the statutory second condition which he quoted, that it must be,

“in the interests of the fair and effective administration of justice in the proceedings for a declaration to be made”.

That is a precondition.

Section 7 of the Act requires the court to keep any CMP declaration under Section 6 under review and permits the court to revoke it at any time, and requires it to do so following pre-trial disclosure if it no longer considers the fair and effective administration of justice test to be met. That is a very important safeguard which, as my noble and learned friend pointed out, was achieved in this House. The rules in Section 4 provide the mechanisms for those reviews and implement the safeguard fully and accurately.

Finally, the rules provide a comprehensive code for the involvement of special advocates. They give the court judicial control at every stage to ensure that a specially represented party’s interests are compromised as little as is consistent with national security. This was one of the cardinal demands of those of us who believed that it should be for the court to determine when CMPs should be permitted and how they should be regulated. In particular, a special advocate will be able to apply to the court for directions under Rule 82.11, enabling him to communicate with the specially represented party so far as national security allows.

It is a matter of record that the special advocates opposed this legislation. They did so understandably, because CMPs are contrary to the principles of open justice that lie at the heart of our common law system, in which we hear and test evidence made available to all parties in open court. No one disputed then or disputes now that CMPs represent a derogation from those principles. No one, I suggest, underestimated the significance of the decision we took. In passing the Act, Parliament acted on the basis that it was better for the few cases to which it applied to be determined with CMPs than for them never to be determined at all, which was the alternative.

My central point is that these draft rules do no more than fairly and comprehensively implement the will of Parliament. The special advocates have had an opportunity to comment on the draft rules since 3 June, but they have not done so. For those reasons, I cannot see that the noble Lord’s regret Motion is fair or justified, and I therefore oppose it.

[Lord Bew]

My Lords, I will speak only to the Northern Ireland section of the Motions before the House tonight. I will ask the Minister two questions in the spirit of the remarks that have been made, particularly by my noble friend Lord Pannick, not in opposition in principle to the Minister’s proposals this evening but with a sense that we ought to proceed with great care, caution and circumspection in what is undoubtedly a significant change.

The Minister, in his introductory remarks, referred to consultation between the Lord Chancellor and the Lord Chief Justice of Northern Ireland, and I was delighted to hear that. However, there is also a question in my mind as to whether there was any consultation with the Northern Ireland Human Rights Commission, either by the Lord Chief Justice or through the Lord Chancellor’s office, and just how wide that consultation actually went in Northern Ireland.

My second question very specifically relates to the special advocates, and to vetting procedures for special advocates in Northern Ireland, where I think it is a more difficult matter perhaps than in the rest of the United Kingdom. When the Rules of the Supreme Court (Northern Ireland) (Amendment No. 3) came before this House at the end of January 2009, I asked the noble Lord, Lord Bach, who was then the Minister, about the vetting of special advocates in Northern Ireland. He replied that there was a high level of vetting. He referred to credit checks, checks on criminal convictions and so on—similar to those for a civil servant. The documents that I have received so far, either in that case or in the case of the Motions before the House tonight, refer not at all to the special advocates and the level of vetting. I just want reassurance that it is still regarded as a high level of vetting, given the sensitivity of the matters, which inevitably come under the purview of the special advocates, and I ask whether, in the difficult circumstances of Northern Ireland, that level of vetting is, in fact, sufficiently high.

[Lord Phillips of Sudbury]

My Lords, I will make one brief comment. I start by commending my noble and learned friend the Minister for the way in which he has dealt with this extremely complex set of issues and for the way in which he opened the debate tonight. It is commonplace to observe that closed material procedures touch on matters as sensitive, in terms of the fundamentals of our system, as anyone can imagine. Having heard the extremely thoughtful contributions of fellow Peers tonight, it occurs to me that, if it were at all possible, it would be advisable—if I can put it that way to the Minister—to take away the issues that have been raised here tonight rather than push them through.

There are only a dozen of us in the House at this time. We have heard some extremely thought-provoking points made by the noble Lord, Lord Beecham. The noble Lord, Lord Pannick, referred to the five Neuberger principles—if I may call them that—which all require, I think, considerable further thought. The noble and learned Lord, Lord Goldsmith, raised the issue of potential vetting, so to speak, of applications by the Attorney-General of the day. I hope my noble friend the Minister will not have any fear of going against precedent if he considers it advisable to postpone passing these rules tonight so that the matter can be further considered and brought back immediately after the Recess, because the issues could scarcely be more important.