Referendums: Parliamentary Democracy
Lord Brown of Eaton-under-Heywood Excerpts(6 years, 5 months ago)
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Lord Brown of Eaton-under-Heywood (CB)
My Lords, we are indeed fortunate to have listened in a single debate to two such distinguished maiden speeches, each delivered with great style, wit and charm. I am particularly pleased to follow my noble friend Lord Anderson and thus be the first to congratulate him. I confess to no surprise at the excellence of his speech: periodically during my years as a judge he used to come before us and make dazzling appearances; not invariably with success, but that was probably our fault and not his. He is described in the main reference book appraising members of the Bar as the—the, not a—leading EU public law expert, with,
“an incredible level of analysis and mastery of presentation … charismatic and charming”,
and,
“a spectacular advocate”.
His huge contribution to public life, as the Government’s Independent Reviewer of Terrorism Legislation for some years, until February last year, needs no emphasis from me. It is well summarised, surely, in the citation for his knighthood, awarded just a month ago in Her Majesty’s Birthday Honours List:
“For services for national security and civil liberties”.
To advance both those twin imperatives, wrongly thought by some to be in conflict, is surely a singular achievement. This House is going to benefit immensely, I suggest, from the expertise and wise judgments of my noble friend Lord Anderson, and we greatly look forward to his future contributions to our debates.
Turning to the issue of the debate, referendums, I first join with others in congratulating the noble Lord, Lord Higgins, on securing and so skilfully opening this debate. I should begin by confessing to having written a “Thunderer” article in the Times on this question in April, headed, “Britain needs one last referendum before we ban them”. A few days later I was confronted in a corridor by the noble Lord, Lord Lawson, to whom the noble Lord, Lord Pickles, has already referred. He asked me if it really was me who had written this piece, and when I acknowledged that it was he said he hoped I realised how stupid it was. Did I recognise, for example, that 20 years ago the referendum held on both sides of the border in Ireland had been integral to the success of the Good Friday agreement? I was, I confess, rather shaken by that encounter and I have become rather less clear in my view that once, by a further referendum, we have, as I suggest we should, obtained the public’s view on whether, after all, we should Brexit, we should, as I said in the article,
“legislate to ensure that never again will our parliamentary representatives feel bound by a referendum to sacrifice their own mature judgment on the altar of public opinion”.
My more up-to-date views are these. First, referendums are, I suggest, by their very nature a risky and dangerous way of determining important political issues. I will not quote again the famous quotation from Margaret Thatcher, but they are a populist device, all too often ill-informed and dangerously repressive, and they ride roughshod over minority interests. Of course, all that was notoriously true in Nazi Germany, as has been observed. Nevertheless, with appropriate safeguards there may be occasions when, perhaps as a prelude to major constitutional change, a referendum is indeed appropriate. The Good Friday agreement is, I am inclined to accept, a good example of that. So too, I think, was the vote on Scottish independence and possibly—although here I put a particular emphasis on safeguards—the vote on membership of the EU.
By safeguards I am really talking about the various ways of protecting representative democracy from the obvious deficiencies that we can now see to have afflicted the 2016 EU referendum. That gave the public a deceptively binary choice, to be made by a bare majority and in circumstances where, although in strict legal theory the result was advisory only, politically it was really compelling, as has been acknowledged, at least to the extent of requiring an Article 50 notification to begin the Brexit process, although not, I would argue, to the extent of pre-empting any further, final referendum once the available terms become clear.
Possible future safeguards, obviously interrelated, for any future referendum would, I suggest, include the following. First, we should require more than a bare majority of those voting before giving effect to a vote for change. Secondly, we should spell out as precisely and truthfully as possible the actual likely consequences of a choice either way. As my noble friend Lord Wilson put it, any referendum should follow, not precede, a full public debate on the questions at issue. Thirdly, we should make it plain that the result of the referendum will be treated as advisory only. The weight of such advice, the respect in which it is held, would depend always on the clarity of the choice offered to the electorate, the extent of the majority, in both absolute and proportionate terms, and indeed the relevance of subsequent events.
Taking the present situation, surely there are here highly relevant subsequent events. They include, do they not, the increasing likelihood that leaving the EU will prove altogether more difficult, and possibly damaging, than many of those who voted for Brexit can possibly have supposed; the discovery of substantial breaches in electoral law by those campaigning for leaving; and of course the mere passage of the two years, which of itself has enfranchised many of the younger generation, who plainly wish to remain.
Three suggestions have been made. The suggestion of the noble Lord, Lord Sherbourne, is that we simply slavishly follow the referendum, however imprecise may have been the decision then taken: it was to leave and we should do no more than follow that. Secondly, the noble Lord, Lord Higgins, suggested that parliamentarians could properly now ignore the referendum utterly. I suggest that there is a real risk of forfeiting public trust in the political process if that course was taken. Thirdly, it is suggested that we should ask the public and respect their view on the deal now available by a further referendum, and that is the course that I support.
Brexit: European Arrest Warrant (European Union Committee)
Lord Brown of Eaton-under-Heywood Excerpts(6 years, 10 months ago)
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Lord Brown of Eaton-under-Heywood (CB)
My Lords, I have prepared a speech and shall deliver it, although what of any great value it will add to the series of outstanding speeches that we have already had—and it would be invidious to choose between them—may be doubted.
In the increasingly borderless world in which we live, it is really difficult, as others have said, to overstate the critical importance of the European arrest warrant to international criminal justice. The scheme, as your Lordships know, originated in a European Council framework decision in 2002 and was transposed into UK legislation in the Extradition Act 2003, coming into force on 1 January 2004. It immediately transformed extradition arrangements between EU states, making for an altogether swifter and more streamlined process. It was immeasurably an improvement on what had gone before; essentially, the 1957 Council of Europe Convention on Extradition was criticised variously as being,
“inefficient, cumbersome, slow (which resulted in long periods of pre-trial detention for suspects), expensive, technical, political, restrictive, containing a series of loopholes and subject to less judicial oversight”.
That is the description in the EU Committee report of 2013, paper 159, to which my noble friend Lord Hannay has already referred.
As your Lordships will know, under the Lisbon treaty the Government initially opted out of some 130 measures in the field of justice and home affairs and then, in December 2014, three years ago, opted back into 35 including, notably for our purposes, the European arrest warrant. This for the first time conferred jurisdiction on the CJEU or the ECJ in regard to our operation of the scheme. This opt-in occurred during a 15-month period in which the ad hoc Select Committee on Extradition Law of this House sat. I was privileged to be a member of that committee, under the excellent chairmanship of the noble Lord, Lord Inglewood. On 10 November 2014, we published a short interim report recommending that we should indeed opt back into the scheme. In our final report on 10 March 2015, we reiterated, with emphasis, that conclusion. Of course, we had by then indeed opted back in.
In preparing the interim report, we heard oral evidence from two witnesses: the noble Baroness, Lady Ludford, who supported the opt-in, and Mr Jacob Rees-Mogg, who advocated leaving the scheme on the basis that it was an unacceptable extension of European judicial influence. That was not a view that we accepted, nor, evidently, was it a view shared by the Government, who of course then opted in.
I should perhaps note that, during the pre-Lisbon operation of the scheme, and therefore before the European court had jurisdiction over its operation here, a number of EAW cases came before our courts, both in this House and then, after we were banished in 2009, in the Supreme Court. Indeed, I was involved in a number of them, including, shortly before I retired in 2012, a Mr Assange’s appeal—although, in the event, it appears to have taken him no further than Knightsbridge. Against that background, I assert some experience at least of the scheme in practice.
I believe that, both before and after we opted in, overall the European arrest warrant has operated admirably. Of course, as the noble Baroness, Lady Ludford, said, there have been flaws and obviously there remains room for further improvement. There have, however, been certain notable legislative amendments made to the 2003 Act that have undoubtedly helped; for example, the introduction of a forum bar, the effectiveness of which can be seen this very week in the Administrative Court’s judgment in the Lauri Love case, the computer hacker with Asperger’s who is not now to be extradited to the Unites States but who will, one trusts, instead be tried here for his alleged criminal activities. That was under Part 2, not Part 1, of the 2003 Act and is not therefore an EAW case, but the point is none the less well made.
Perhaps I should note in this connection that I in fact wrote the single judgment of the Appellate Committee of this House in the earlier case of McKinnon, where we unanimously dismissed Mr McKinnon’s appeal—a judgment that was then fully upheld in Strasbourg under the European convention. Of course, at that stage there was no question arising at all as to Mr McKinnon’s health. It was argued on an unarguable case by the noble Lord, Lord Pannick; he failed. Only later was Asperger’s diagnosed and there was of course then executive discretion—which is no longer there—for the Home Secretary to bar extradition. Now, the position has improved under the legislation: there is a forum bar, and the court rather than the Executive will make the final determination on the merits of issues such as oppression.
Thus far, I have focused on the critical importance of the warrant scheme—as all your Lordships have, I think, emphasised—and the imperative need, as I see it, to maintain its operation in the post-Brexit era. Indeed, as I read the Government’s response to the report, there is really no longer any doubt or dispute about its importance and the necessity of maintaining it. Rather, the remaining question is simply about how in future its operation should be judicially overseen. I say this simply remains the question, but actually, as other noble Lords have indicated, it is really rather difficult.
The Government’s response, I think of December last, to this report, consistent with their published paper in September last, the future partnership paper Security, Law Enforcement and Criminal Justice, while asserting that they will,
“bring about an end to the direct jurisdiction of the CJEU in the UK”,
recognises that some form of supranational resolution mechanism will be required, certainly after the transitional implementation standstill period, during which, as I understand it, the Government are now ready to accept that they will continue to acknowledge the CJEU’s continuing jurisdiction in this field. But what will then follow?
As I read the report, while indeed it acknowledges the need for some future international judicial process to be devised in place of the CJEU’s direct jurisdiction, it gives, as others have pointed out, no real clues as to what precisely, or indeed even imprecisely, it currently envisages will fit the bill. For all the reasons set out in this admirable report, it needs to be a court, a judicial body, as opposed to some arbitral body. It needs to be available to individuals and not merely to states. It needs to enforce the scheme, I would suggest, in full measure, and not, for example, some alternative scheme, such as that devised in the case of Iceland and Norway, whereby those states are now entitled to refuse to extradite their own nationals, which under the EAW scheme is not a permitted restriction. Above all, it has to be acceptable to the other 27 EU states.
For my part, I cannot see how any replacement for the existing role of the CJEU would be an improvement on it. As I have said on other occasions, I greatly regret that the Government have demonised that court and, essentially on ideological or doctrinal grounds, are intent on ending its jurisdiction. I cannot think of a single instance of that court’s rulings in this field which has caused the UK the least problem or, indeed, been regarded as in any way unsatisfactory. That court may on occasion be criticised for its integrationist approach and its bias towards ever-closer union, but no such tendency has the least application or relevance in this particular context, and to schemes such as the EAW, and so too, indeed, in relation to other criminal justice measures which we opted back into.
I am conscious that I am taking up a lot of your Lordships’ time, but it is perhaps worth mentioning that essentially the same point arises also with regard to a number of EU civil justice co-operative measures: the various Brussels Regulations, maintenance regulations and so forth, dealing with a host of important questions affecting our citizens and businesses, the recognition and enforcement of judicial judgments, family law disputes and so on. All these were the subject of an excellent report, and subsequent debate last December, led by the noble Baroness, Lady Kennedy of The Shaws. Frankly, the same problems of certainty, predictability and continuity were left at the end of that debate as I fear may be left at the end of today’s debate too. I would dearly love the Minister to assuage my doubts and misgivings when he comes—as I understand it, comparatively fresh to this issue—to wind up. I just hope he can.
As a postscript, the one point on which I record my disagreement with the noble Baroness, Lady Ludford, is on the European Charter of Fundamental Rights. My mind of course, as always, remains open until I have heard the last word of the argument on both sides, but my present feeling is that the Government are right to discard that. I can see that it would add nothing whatever to the issue of the European arrest warrant.
European Union (Withdrawal) Bill
Lord Brown of Eaton-under-Heywood Excerpts(6 years, 10 months ago)
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Lord Brown of Eaton-under-Heywood (CB)
My Lords, I am happy to follow the noble Baroness, Lady Thornton, particularly as on this occasion she has said nothing to make me change my speech. I remain a remainer but, for the purposes of this Bill, regard that as a complete irrelevance. As many have said, this is a necessary continuity Bill to transpose EU law, which represents a large part of our existing law, into UK law when we repeal the 1972 Act. In short, it will avoid a huge legal vacuum if and when we leave the EU.
That said, save in one eventuality only, the entirety of this Bill could and in some ways—pace the noble Lord, Lord Wilson of Dinton—should more appropriately be dealt with not here but in the next Bill. The withdrawal agreement and implementation Bill will come along later in the year when, one hopes, we will know—at least to the extent of heads of agreement—the basis on which we are leaving. The one eventuality in which this Bill truly would be crucial would be if—one hopes it is a remote “if”—the Government at some point abandoned negotiations for an agreed withdrawal and we simply crashed out of the EU on exit day. Then indeed, with no prospect of a later Bill, a continuity Bill to keep our laws intact would be required. That eventuality apart, why can all these provisions, as to what should be retained law and our future approach to it, not be part of the implementation Bill?
In all probability, we will initially leave by a transition, implementation or standstill period—call it what you will. During this period, we will continue to recognise the jurisdiction and jurisprudence of the CJEU. Given that, surely the point at which EU law will be frozen and, as retained law, become part of UK law will be at the end, not the beginning, of that transitional period. Clauses 2 and 3, which in effect freeze EU law as at exit day, will have to be amended, presumably by the implementation Bill itself rather than by any of the highly contentious regulation-making powers in this Bill, most notably Clause 9(2).
Incidentally on the question of the Bill’s regulation-making powers, not only do Henry VIII powers—executive powers to repeal or amend primary legislation —need to be curbed; so too we should place controls on the Executive’s power by secondary legislation, which is generally unamendable and not that closely scrutinised, to implement policy decisions that are more properly the subject of primary legislation.
That takes me to the Constitution Committee’s recommendation in yesterday’s report that “retained direct EU law” should have the legal status of “domestic primary legislation”. That is a most interesting recommendation. Instinctively I am inclined to agree, in so far as it would prevent retained law being changed merely by executive regulation by secondary legislation. However, I am less convinced that retained law should not be subject to the Supreme Court, as proposed under Clause 6(4)(a) and 6(5), being able to depart from it as it can from its own or previous House of Lords decisions under what lawyers know as the 1966 Practice Statement—exceptionally and only for compelling reasons. That is essentially the test now proposed in the Bill.
I have a final word or two about the Charter of Fundamental Rights being disapplied by Clause 5(4). I see no good reason to retain the charter. We are of course retaining the Human Rights Act and our full acceptance of the reach of the European Convention on Human Rights. The convention and the Supreme Court’s ever-growing readiness to invoke our own historic common law, as necessary, fully meet our human rights requirements. It is true, as the noble Baroness, Lady Smith of Basildon, pointed out in her speech, that David Davis himself invoked the charter last year when making his complaint against the UK about investigatory powers, but all that is now expressly taken care of in the Data Protection Bill that we have just passed on.
The charter, I suggest, would needlessly complicate things to no good purpose. It is, at best, of uncertain reach, applying as it does only to the implementation of EU law, which is, of course, to become a past concept. The present criteria for deciding the scope of EU law is already described as “incredibly ambiguous”. The charter, of course, consists both of rights, essentially mirroring ECHR and other international law rights, and of principles. The latter are mostly social and economic, are really aspirational and without direct effect. In short, I accept the Government’s arguments on the charter, but clearly there are aspects of the Bill that will need amendment and we look forward to 10 busy days to deal with those.
House of Lords Reform Bill [HL]
Lord Brown of Eaton-under-Heywood Excerpts(7 years, 10 months ago)
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Lord Brown of Eaton-under-Heywood (CB)
My Lords, an awful lot of water has flowed under Westminster Bridge since the Bill had its first reading on 26 May last year. What nine months ago may have seemed an interesting, imaginative and perhaps even sensible set of proposals now seems, I suggest—if the noble Baroness, Lady Jones, will forgive me for saying this—rather less so. We all know the concept of a probing amendment but I would say that this is rather like a probing Bill, and it can best be viewed surely as no more than a means of encouraging, if we need encouragement, yet further thinking about the direction we want this House take.
Now that we have a Lord Speaker’s committee, chaired by the noble Lord, Lord Burns, looking into the whole problem of size, which I suggest is our core problem reputationally, the Bill can take its place as a response to that committee’s consultation paper—precisely, indeed, as the noble Baroness suggested in a helpful letter that she circulated last week. I suggest, though, that although the noble Baroness is to be commended on advancing this as yet another of the many schemes advanced down the years by thoughtful Peers recognising that we are an un-ideal body and intent on trying to look constructively ahead, it is not a Bill that could ever command the consensus approval of this House.
For my part, with the best will in the world, I cannot support much of her approach. There are many provisions within it with which I profoundly and fundamentally disagree, but others have already made most of the points that I wished to make, and I deplore mere repetition. I put on record my support for the fairly well-known approach adopted by the group of the noble Lord, Lord Cormack, the Campaign for an Effective Second Chamber, in which the noble Lord, Lord Norton, plays a huge part. His magisterial analysis and discussion of the Bill said much, if not all, that needs to be said. Perhaps at this point I should simply adopt the response to the Bill that he suggested and sit down—but I will make just one or two very brief points.
First, like most noble Lords—although not, alas, the noble Lord, Lord Scriven, and one or two others on that side of the House—I could never support an elected House, whether or not, as proposed here, there were second-class non-voting Peers sitting and speaking alongside the elected elite. I share the view of those who regard an elected House as the worst of all possible worlds. The Chamber would lose much of its talent. It would surely have few experts. Many on the Cross Benches would not dream of standing for election. Instead, a body of Peers who would then have acquired more obvious democratic legitimacy would inevitably be vying with the other House for real power.
Surely we are most valuable if we remain as a House of elders. That is what we are: we bring the wisdom of age, experience and expertise to the issues of the day and to the scrutiny of legislation, which emerges in increasingly defective form from the other House.
Lord Scriven
I appreciate what the noble Lord says, but does he accept that in a technologically fast-moving world we need not just the expertise of elders? Younger people understand this world far better, and their expertise is needed.
Lord Brown of Eaton-under-Heywood
I applaud the appointment to this House of people such as the noble Baroness, Lady Lane-Fox. If that meets the noble Lord’s point, so be it. Of course I do not suggest that you have to be quite as old as I am to justify your place in this House.
My second point is a narrow one on Clause 1. I am not a hereditary, but as I understand it, Clause 1 adopts an altogether more dramatic, radical and draconian approach to hereditaries than the Bill of the noble Lord, Lord Grocott, and is altogether less appealing. We are looking to try to achieve consensus in this House. This is hardly the way forward to consensus.
Thirdly, the points system for determining transitional Members set out in Clause 11 is, to my mind, deeply flawed and objectionable. I very much hope that the committee of the noble Lord, Lord Burns—the noble Lord, Lord Beith, who is a member of it, is here—will not be in the least degree tempted down that road. Do we really want to encourage all Members to speak? Some, for my part, I would rather discourage—although, I hasten to say, none who are present in the House today. What constitutes speaking? Is it a supplementary question during Question Time, an intervention during a debate, supporting an amendment in Committee? On voting, what about a conscientious abstention, where the Member, having listened intently to the debate but being unpersuaded of the correctness of either side, abstains?
I happened to listen to the debate about HS2 earlier in the week, and for the life of me did not feel that I knew enough to be able to take a view on either side, so I abstained. That would count for nothing—but does it count when Division Bells ring and somebody emerges from a deep sleep in the Library to vote as whipped, asking what he is voting on as he comes into the House? Do we really want to go down that road?
If I may be allowed the briefest of digressions, I would rather support a Bill that provides for unwhipped Cross-Bench votes to count for double—although I might include in the Bill a provision that a vote by a party member against his Whip should count for three times. But put all that aside. When I first read the Bill, I confess that it put me in mind of one of our Victorian statesmen—alas, I forget which one—whose reaction to a suggested reform was, “Reform, reform—good God, man, aren’t things bad enough as they are already?”. For my part, I would suggest that things would be a great deal worse if we adopted this proposed Bill. For my part, I would not progress it, or even give it a Second Reading.
Surrogacy
Lord Brown of Eaton-under-Heywood Excerpts(8 years ago)
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Lord Brown of Eaton-under-Heywood (CB)
My Lords, I, too, am most grateful to the noble Baroness, Lady Barker. Despite more than 50 years in law, I can claim no particular experience or expertise in this subject, although I have boned up on a number of recent cases. I have chosen to speak in this debate not to canvass any particular view as to how precisely to change and develop our existing inadequate surrogacy law, but rather to urge that this is, par excellence, a topic self-contained and policy-laden as it is, that cries out for attention by the Law Commission for inclusion in its imminent next programme of law reform. As the noble Viscount said, its consultation period on what projects to take ended on 31 October, but I have no doubt at all that it will take full account of what is said in this debate for which, alas, no earlier date was available. I have the very highest regard for the Law Commission—its chairman, commissioners, support staff and processes. In many debates in this House, we express regret about the lack of pre-legislative consultation on the various Bills before us, but such consultation is at the very heart of the Law Commission’s processes and, if ever it was desirable, surely it is so here, with regard to reshaping—as we now should—our obviously outdated surrogacy law.
In the 30-odd years since the Warnock committee report and the first surrogacy legislation in 1985, there has been a huge increase in the use of surrogacy to satisfy aspiring parents’ understandable and estimable craving for a full family life. This is due variously, no doubt, to advances in genetics; the expansion of social media, which so greatly facilitate surrogacy arrangements, here in the UK and abroad; and perhaps, also, to the widening recognition of differing types of secure family unit. All too plainly, the law has struggled to keep up with those developments. As others have already said, some of its basic architecture has been causing problems, most notably perhaps in the provision for parental orders to be made only after birth. This results in the surrogate mother and her spouse being at birth the legal parent, the biological parents being wholly dependent on the surrogate’s consent for an order, and the child in the meantime being in legal limbo. That particular aspect of the law was admirably brought to light in the piece mentioned by the noble Lord, Lord Faulks, in today’s Times by Alice Thomson, plainly based on the very case that the noble Lord, Lord Faulks, cited and has now described—as I was proposing to do but now need not do.
But this is far from the only problem that arises in this ever-expanding, sensitive and profoundly important area of our law. As has rightly been said, parental orders are transformational; they go to the very identity of the child as a human being. Another problem encountered was the inability of the court to make a parental order in favour of a single father, as opposed to a recognised couple, declared by Sir James Munby in the case of Z this May to be incompatible with the father’s and child’s rights under the European Convention on Human Rights—the one mentioned by the noble Viscount, Lord Craigavon. It may well be, and the Minister may inform us about this, that that particular problem will be solved by way of a ministerial order under Section 10(2) of the Human Rights Act. But even if it is, surrogacy law as a whole would to my mind be best reviewed and brought up to date in the light of a Law Commission report. As Alice Thomson said at the end of her article today, it is true that the Law Commission could take years, but I question whether the problem that she and the noble Lord, Lord Faulks, have fully described can be regarded as,
“a simple anomaly that could be changed right now”.
Law reform is now required but, in a controversial and difficult subject such as this, I would urge that it be done with the initial involvement and invaluable assistance of a Law Commission report.
Trade Union Bill
Lord Brown of Eaton-under-Heywood Excerpts(8 years, 9 months ago)
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Lord Brown of Eaton-under-Heywood (CB)
My Lords, in supporting this amendment I will repeat, very briefly, a point that I made in Committee. I might not have done this if the Minister had dealt with the matter in her reply. But, tantalisingly, just as she said:
“Perhaps this is the point at which I should respond to the noble and learned Lord, Lord Brown”,—[Official Report, 8/2/16; col. 2026.]
the noble Lord, Lord Mendelsohn, interrupted—perhaps I mean intervened—to raise a different question and the Minister never came back to it.
At all events, the point was simply this: while I support the turnout requirements in these clauses, it should be noted that certain bizarre consequences could, at least theoretically, follow from these provisions. Assuming a bargaining unit of 1,000 union members—the illustration used in the Explanatory Notes to the Bill—if 499 members voted in favour of industrial action and none against, a strike would be unlawful. However, if 499 voted in favour and one against, because at least 50% of those eligible would have voted, a strike would be permissible—so, too, of course if 499 voted in favour and 498 against.
Doubtless, such possible anomalies as these are inevitable in any scheme which combines, as this one does, a minimum turnout requirement with the principle of a simple majority decision. But my point is that surely this underlines the imperative need to ensure that the best and most effective way is found of achieving a maximum turnout of those eligible to vote. This amendment will surely facilitate the search for that better way, and plainly nothing can be lost by it. It prejudges nothing: if electronic balloting were to prove ineffective or insecure in addition to postal voting, it simply would not be adopted. But we should at least let such an independent review be held.
Lord Pannick (CB)
My Lords, I support this amendment for all the reasons given by the noble Lord, Lord Kerslake, and for one further reason, which I mentioned in Committee: promoting electronic voting will make it much less likely that any legal challenge to the new thresholds would succeed if such a challenge were brought in Strasbourg. It is very simple: the less balanced the provisions in the Bill, the greater the danger that the Government will not secure their objectives, and I support their objectives in relation to the ballot thresholds. The Minister mentioned a few moments ago that the Bill is concerned to strike a fair balance. So is this amendment.
Bank of England and Financial Services Bill [HL]
Lord Brown of Eaton-under-Heywood Excerpts(9 years ago)
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Lord Brown of Eaton-under-Heywood (CB)
My Lords, speaking purely as a superannuated judge with no particular expertise in banking, I oppose the amendment. Article 6.2 of the European Convention on Human Rights says:
“Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law”.
Baroness Kramer
I will just make a point of clarification, because a number of noble Lords have made this comment. The reversal of the burden of proof applies not to a criminal offence but to a civil offence.
Lord Brown of Eaton-under-Heywood
With respect, as I understand it, this is a punishable offence; therefore it is a criminal offence. I certainly understand that it is proposed that this offence should be on the statute book to bring blame on those who commit it and lower them in the estimation of the public so that a conviction or finding of guilt under this provision would be to their considerable disadvantage. I have little doubt that Article 6 would apply to how one proves this breach of the law. There is nothing very new in this either. The golden thread that for centuries has been said to run through our law is that it is for those who accuse to establish a case against those who are accused.
Lord Sharkey (LD)
Is the noble and learned Lord aware that the Minister who introduced the Financial Services (Banking Reform) Act 2013 into Parliament certified that it was not in breach of the convention he quoted?
Lord Brown of Eaton-under-Heywood
That is by no means conclusive of the issue. However, for the most part I am not hinging my argument on the convention; it simply represents what I have already indicated is a common thread of our law—it is for those who accuse to prove. Generally, the burden of proving every ingredient, every element of any wrongdoing or offence—including the disproving of any legal defence to it—lies squarely on the prosecution.
Certainly, there are occasions when the law, including the European Convention on Human Rights, accepts a reverse burden of proof. However, in considering whether this is acceptable one must recognise that whenever an accused is required to prove a fact, as here he would be on the balance of probabilities, that permits him to be found guilty, even if the fact-finding tribunal has some reasonable doubt as to his responsibility. That is the whole essence of the burden of proof. Where there is a doubt, it is resolved in favour of he who stands to be criticised and held liable before the public. It is all very well to speak of the cultural impact of a change like this but the consequence is that in a case of doubt, because he has failed to discharge the reverse burden placed upon him, he is found guilty.
There is a great deal of law in all this, which I will not go through, but I will make just one or two points. First, there is all the difference in the world between the legal burden of proof and the evidential burden of proof. Realistically, the latter is of comparatively little importance. In relation to many defences, the evidential burden is said to be on the defence but this burden is found to be discharged whenever there is any evidence—basically, any evidence at all, wherever it comes from—which raises the possibility that such a defence may exist. For example, when somebody is accused of assault, if there is a suggestion that he may very well have acted in self-defence, the legal burden to disprove that immediately shifts back fully on to the prosecution. The fact is that courts—there are many cases to indicate this—do not like reverse burdens of proof and prefer this golden thread. It is by no means impossible, and I think it is quite likely, that under the 2013 Act—the one for which the certificate was given under the convention—that would be found to be consistent with the convention because the court would construe the legislation as involving not the legal burden of proof but the evidential burden of proof, in which case it would have precious little effect.
The legal burden of disproving guilt is only very rarely put on the defendant. It generally happens only in the case of statutory offences concerned with the regulation of conduct in the wider public interest, and generally in comparatively minor cases involving—I quote from an earlier judgment—
“no real social disgrace or infamy”.
That approach was applied in a trademark case where a trader in branded goods was required to prove that his sale of the goods did not involve any infringement of the trademark legislation. It was held to be in the nature of a regulatory offence with a minor degree of moral obloquy rather than a truly criminal case. Indeed, that was also the position in a case in this House in 2008 in which I was one of the judges. We held that it was not disproportionate to put the legal burden on employers to conduct their undertaking in such a way as to ensure that people were not exposed to health and safety risks. It was for them to establish on the balance of probabilities that it would not have been reasonably practicable for them to have done more than they had to achieve those requirements.
The effect of this amendment is conveniently and succinctly set out in paragraph 137 of the Explanatory Notes. It says that under the 2013 Act senior managers in the relevant area,
“are guilty of misconduct if there has been a breach of any regulatory requirement in an area for which they are responsible unless they can prove that they have taken reasonable steps to avoid the breach … This will be amended so that no senior manager will be guilty of misconduct unless the regulators can prove that the senior manager did not take reasonable steps to avoid the breach happening”.
I respectfully support the Government’s view that the offence being introduced by this legislation, prospectively from the coming March, should properly be considered to be not just a mere regulatory offence involving negligible obloquy—that is not how I understand that the bulk of those opposite would regard guilt of such an offence—but, rather, as constituting serious misconduct. It is the sort of offence, therefore, which should be fully proved and where any doubt as to whether it was committed should be resolved in favour of he who is accused.
Lord Grabiner (Non-Afl)
My Lords, I declare the interests shown under my name in the register. I should also declare that I am an authorised person under the regimes operated by the FCA and the PRA.
This part of the Bill is designed to extend the senior managers and certification regime, which replaces the much reduced—or, I should say, criticised—approved persons regime. It introduces a new statutory duty of responsibility for all senior members across the extended SMCR in place of the reverse burden of proof, which would otherwise have applied to deposit-takers and PRA-regulated investment firms. The new duty obliges the responsible senior manager to take reasonable steps to prevent regulatory breaches in her or his area of the business. As a result, if the complaining regulator shows that the senior manager has failed to take appropriate steps, she or he will be guilty of a breach of statutory duty. No doubt the Minister will assist us on this but I think that that will subject the individual to serious penalties, including an unlimited fine and/or a prohibition. These are very serious matters, whether they are offensive to Article 6 or otherwise.
Constitution: Gracious Speech
Lord Brown of Eaton-under-Heywood Excerpts(9 years, 5 months ago)
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Lord Brown of Eaton-under-Heywood (CB)
My Lords, I want to touch briefly on the proposed British Bill of Rights. Of course, I recognise that a delay for consultation is now proposed, but there could be no clearer commitment than for such a Bill. Indeed, just two days ago in the other place, Dominic Raab, the new Justice Minister, full of enthusiasm, stated:
“We will legislate for a Bill of Rights to protect our fundamental rights, prevent abuse of the system and restore some common sense to our human rights laws”.—[Official Report, Commons, 23/6/15; col. 748.]
He continued by saying that, although leaving the convention was not the Government’s objective, no option was off the table.
There is time today to make only one or two brief points. First, in the debate on the gracious Speech on 1 June, the noble and learned Lord, Lord Mackay of Clashfern—whom I am happy to see in his place—with regard to our failure to implement Strasbourg’s judgment on prisoner voting, confessed to,
“a feeling of great anxiety that the United Kingdom, with its tradition for respect of the rule of law, not the rule of lawyers, should be in breach of a treaty by which it is bound”.—[Official Report, 1/6/15; col. 179.]
That of course was entirely consistent with evidence that the noble and learned Lord had given the Joint Committee on the Draft Voting Eligibility (Prisoners) Bill, as recorded at paragraph 92 of its report, HL Paper 103. Later in his speech, the noble and learned Lord, Lord Mackay, suggested a possible way of dealing with this sort of situation short of withdrawing from the convention. He suggested—as reported at cols. 179-80 of the Official Report for 1 June—that the convention should recognise the possibility that member states such as the UK whose Parliament is sovereign and not subject to having its Acts set aside or modified by the courts of that country should be exempt from the obligation to implement a decision of the Strasbourg court that one of its statutes contravenes the convention, provided only that the state’s legislature passes a resolution which, for stated reasons, declines to implement the Strasbourg court’s decision.
Clearly, the noble and learned Lord was attempting to avoid the unthinkable possibility of withdrawing from the convention and to put forward a constructive suggestion. However, with the best will in the world, it seems to me inevitably doomed. In the first place, it is surely inconceivable that all the states party to the convention would agree to such an amendment of the convention. In any event, would we really be happy to achieve a position where, for example, if the Russian Duma, or indeed the Irish Parliament, wanted to recriminalise homosexuality, it would be perfectly able to do so? In truth, we must recognise that our preparedness to accept the very occasional unwelcome ruling against us is the price we pay for the huge benefits to the wider population of the Council of Europe of subjecting less liberal states to the constraints and disciplines of the convention.
I should make it plain that I, too, regret a number, although in fact only a very small number, of Strasbourg’s decisions. Frankly, they do not include that on prisoner voting—a decision that we could satisfy simply by giving the vote only to those serving 12 months or less. Surely we are, after all, trying not to outlaw prisoners but to instil in them some sense of civic responsibility. However, I regret one or two Strasbourg decisions—for example, the cases of Al-Skeini and Al-Jedda, which are in direct disagreement with our own final court’s decisions, to which I was party respectively in this House and in the Supreme Court, and which tend to undermine our forces’ fighting capabilities in armed conflicts abroad. I am troubled, too, by the extent to which Strasbourg has extended the scope of the Article 8 right to respect for private and family life.
As to the application of the convention to warlike operations, there are possible solutions. Indeed, I canvassed them in a conference last month at Oxford, but there is not time to develop them today, although I hope that we may one day come back to them. With regard to Article 8 and, in particular, its impact on the deportation of foreign criminals, let us see how the changes to the legislation introduced by last year’s Immigration Act work out. According to the Times, there is shortly to be a Court of Appeal case which questions those changes.
There has been extensive debate during recent years about Section 2 of the Human Rights Act requiring our courts to “take into account” Strasbourg’s jurisprudence on the convention. High authority in our courts dictates that we should not only take account of that case law but, where it is settled, directly on point and authoritative —for example, a clear decision of the Grand Chamber—follow it. The object of the 1998 Act was, after all, to “bring rights home”. If our courts were to refuse to apply a clear Strasbourg decision, the inevitable consequence would be, as the noble Baroness, Lady Kennedy of The Shaws, mentioned, to drive the disappointed litigant back to Strasbourg to establish the claim there.
Of course, success in Strasbourg would bind the Government only in international law, as with prisoner voting, where primary legislation stands in the way of domestic enforceability. But I can see some arguments for preferring that to the present position, which, just very occasionally, requires our Supreme Court to follow a Strasbourg case against its own better judgment—those arguments were indeed canvassed by the noble and learned Lord, Lord Irvine of Lairg, back in December 2011. But it is one thing to elaborate Section 2 of the Act to spell out that our courts are not obliged to follow Strasbourg or, indeed, to repeal the 1998 Act—essentially reverting to the position before 2000, when we merely took account of the UK’s international law obligations—but quite another to legislate contrary to certain specific convention requirements as determined by the Strasbourg court, and that is what I understand the Government presently have in mind. We shall need to watch their proposals very carefully indeed.
General Elections: Peers’ Exclusion from Voting
Lord Brown of Eaton-under-Heywood Excerpts(9 years, 8 months ago)
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Lord Wallace of Saltaire
My Lords, I note that so far there are 11 names of current Peers on the list of those who have expressed their intention to retire at the end of this Parliament: they include no Members from the Labour Benches.
Lord Brown of Eaton-under-Heywood (CB)
My Lords, does the Minister agree that, whatever the arguments justifying the banning of Members of this House generally from voting in general elections may be, there can be no justification in respect of those who are disqualified? I speak on behalf of five erstwhile colleagues of mine in the Supreme Court who, when they were exiled across the Square, lost their vote and their voice here. They are totally disfranchised, and so too is the Lord Chief Justice. Can the Minister justify that?
Lord Wallace of Saltaire
I would have to look closely at the 1999 Act to be assured that they remain disqualified. I was not aware of that.
House of Lords (Expulsion and Suspension) Bill [HL]
Lord Brown of Eaton-under-Heywood Excerpts(10 years ago)
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Baroness Flather (CB)
My Lords, I should like to say a few words from a selfish point of view. The last time we had three expulsions, all three, unfortunately, were Asian. The amount of backlash one received was enormous. People said, “What have you done? You have done nothing; these people have done this and that, and you do nothing to them”. If they were working for some company they would not be there any more. This approach is long overdue and I am really grateful to the noble Baroness, Lady Hayman, for bringing it forward. It is hard to say, “Look, there are people in this House who do not follow the rules they should follow”. They are not honourable and should not be in this House.
Lord Brown of Eaton-under-Heywood (CB)
My Lords, I should like to put on record my support. I had the honour to serve as the chairman of the Conduct Sub-Committee of the Privileges and Conduct Committee. At Second Reading, I gave strong and firm support to, and welcomed, the Bill. As the noble and learned Lord, Lord Mackay, has made plain, it would fill the present, most concerning lacuna in our sanctioning powers. Again, I echo the hope that it will never be necessary to exercise these increased powers.
I welcome all the amendments. The first meets the concern expressed by the noble Lord, Lord Finkelstein, in Committee. In its original form, this provision was too narrow and confined only to what is now in proposed paragraph (a) of the amendment. As the noble Lord pointed out, it would fail, for example, to deal with someone who committed perjury in a libel case and it took four years for that perjury to be revealed. That problem is now cured by the amendment. I strongly welcome it and the other two amendments, too.
Lord Hunt of Kings Heath (Lab)
My Lords, on behalf of the Opposition, I agree with the noble Baroness, Lady Flather, that this is timely and long overdue. We support all three amendments. How good it is to know that something survives from the 2012 House of Lords Reform Bill and goes forward in this Bill. We support it.