Higher Education (Freedom of Speech) Bill

Lord Brown of Eaton-under-Heywood Excerpts

Report stage
Wednesday 7th December 2022 Lords Chamber

[Baroness Fox of Buckley (Non-Afl)]

My Lords, like the noble Lord, Lord Strathcarron, I have put my name to Amendment 21 in the name of the noble Lord, Lord Moylan.

Earlier, the noble Lord, Lord Wallace of Saltaire, suggested that the front page of the Telegraph, complaining about the Government backing down, was simply complaining about mere amendments to the Bill. My concern, though, is that the government amendments are in danger of gutting the Bill. I thought that the Bill’s hope was to allow a shift in the balance of power in higher education institutions away from censoriousness and towards open-minded, tolerant free speech. However, it seems to me that so much turns on enforcement because one’s rights are only as effective as the remedies available when they are violated.

Clause 4, as was, underpinned the duties designed to protect academic freedom through allowing a person to bring civil proceedings against a university or college in respect of a breach of those duties. That would mean hitting universities where it hurts: their pockets. An institution found guilty of violating academic freedom would have to fork out cash to an individual whose rights were infringed. As one academic—Julius Grower, an associate professor of law at the University of Oxford —points out,

“the threat of this alone should be enough to encourage university and college leaders to promote academic freedom.”

Let us see what we are left with following the Government’s new amendments; it is all a matter of national-level administrative procedures, where a person may now bring private proceedings only if they have previously

“brought a complaint relating to the same subject-matter … under a relevant complaints scheme”—

that is, via the Office for Students.

It is with relying on such complaints schemes that I have a problem. Anyone familiar with these schemes will know that they can be sclerotic and bureaucratic and can take months, sometimes years. What is more, they are vulnerable to political interference. A political appointee will, after all, oversee the complaints procedure of the Office for Students, so a beleaguered academic whose freedom has been violated will have to wait and wait before being able to bring a meaningful claim against the university. The amendment in the name of the noble Lord, Lord Moylan, would avoid the threat of overly litigious responses, which has been mentioned, and give us a way out. No one is claiming that these remedies will suffice to keep campus cancel culture at bay, but it is important that they will give university authorities pause while encouraging intimidated staff and students to have the confidence to voice their dissenting views.

Most of the push-back against Clause 4 has been from university vice-chancellors and those who run colleges. I absolutely agree with the points made by the noble Lord, Lord Moore, on this issue. They are a powerful, privileged lobby group of people with an interest in this. I appreciate that, if you run a college, it is your worst nightmare to have a civil tort aimed at you. I understand that. However, it is precisely those who run universities who need to feel that the pressure of this legislation is more than words because, despite all the focus on ideological trouble-makers and mischief-makers that we have heard from noble Lords today, they are presented as the villains just waiting to pounce into the civil courts and throw litigation around. This is an incredible example of straw-manning.

The very driver of the Bill is that there are real-life, concrete trouble-makers, here and now, in universities, who are targeting closing down free speech and declaring that certain views are verboten. They are not imagined trouble-makers; this is really happening now. Yet the imagined villains that have been described are those who are somehow waiting to use this clause only to make money. The truth is that, despite what the noble Lord, Lord Grabiner, suggests, vice-chancellors are not, as yet, queuing up to invite JK Rowling to speak at their universities. The suggestion that she can speak is good. Invite her, all of you—why not? A challenge.

The villains of this piece are often posed as generation snowflake, or social justice warriors who are young. Goodness knows, I spend huge amounts of my time when I am not here going around talking to students at universities and to sixth-formers. Generation snowflake does exist—and wow, do they heckle; I know all about that. But I actually do not think that they are the problem. Often the problem is university senior management, which either spinelessly gives in to the loud demands of a minority of students or leads the charge with ideological silencing policies that are adding to a censorious climate. I talked about this in my earlier speech.

The University of Sussex has been named and shamed so often in this House in relation to Professor Kathleen Stock that I have got to the point where I am feeling sorry for it. The university’s vice-chancellor is not some outlier; he is one of many. We just happen to know about Kathleen Stock because she went public. This is not some imaginary culture war. These are university managers who are hanging out to dry their own professors, academics and often students.

The noble Lord, Lord Blunkett, mentioned Professor Jo Phoenix. I have heard a variety of interviews with Professor Phoenix and have met her on many an occasion; she is battling away in an employment tribunal. It is true that it is difficult to sort out how she can get redress for her reputation having been traduced. She is taking action against the Open University and the way she was treated by the University of Essex. She said that she was shocked but not surprised that the Government had folded on Clause 4, and felt that she had been abandoned yet once more. There are many people like Jo Phoenix who are fighting on and on. Look, for example, at the files kept by the Free Speech Union, of which I am an advisory member. People think that my membership must mean something, and it does: it means I am committed to free speech. In those files there are hundreds of examples of students and academics who have been suspended by university authorities and gone through disciplinary procedures for mis-speaking and saying the wrong thing.

For me, I wanted this law to frighten university authorities —a little bit. I thought that the amendment of the noble Lord, Lord Moylan, had done a huge amount to ensure that the overchilling impact—which the noble Lord, Lord Willetts, talked about—of litigiousness everywhere could be kept at bay, while also ensuring that that tort exists. It will not solve all the problems; there is a much bigger cultural problem in relation to free speech in society. Those opposing Clause 4 are too often not loud enough to fight that culture either. They tell us that they do not need the Bill and that they do not need this clause, and that everyone here is a free speech warrior—I wish. We need this clause, and we need you all to become free speech warriors as well.

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

My Lords, after a lifetime in the law, I was thrilled beyond all else to hear what my noble friend Lord Moore said about the merits of the courts as he lauded the courts, independent justice and so forth. However, I profoundly disagreed with what he said in this debate, because one other thing I have learned over a lifetime in the law—actually it seems a good deal longer than a lifetime—is that any legal proceeding has real downsides to it.

Cost is the first and obvious one: all the problems outlined today about that are true in spades. Secondly, there is the delay in getting to the hearing of the action on the statutory tort, and the subsequent delay between the hearing and the result, with the uncertainty that these delays inevitably carry as to the exact position in law—assuming that there is any law in the case and that it is not just asking for a fresh, factual decision. There has been talk of delay under the statutory regulatory processes. This statutory tort has no special time limit: you can bring it for six years. And why would it end with a first-instance decision? It might wind up in the Supreme Court. Is that what you want?

The third downside during the whole process is the hassle and worry. It is a nightmare for the litigant who is dragged into the process. Therefore, unless there are the most compelling reasons, I say that it should be avoided at all possible costs.

[Baroness Altmann (Con)]

My Lords, I support many of the comments that have been made. As a non-lawyer, I think it is impressive that two senior lawyers have urged the House not to accept this remedy that would be ideal for helping lawyers. I will listen very carefully to my noble friend on the Front Bench because I think that, at the moment, we have to be very careful about unintended consequences. This is a well-intentioned, well-meaning and good Bill, and I share the determination to attempt to stop the stifling of free speech that has been going on. But the fear is that, even if a case were taken and won, it might not provide a meaningful remedy in financial terms—of course winning is fine, but if you do not get the right remedy, it has not taken you very far—for the person who is under threat, and the risk that poses to universities themselves to me suggests that there is perhaps an overreliance here on the idea, in theory, that having the ability to sue will make a huge difference. The result in practice of having that remedy could be that it has the reverse impact of what is intended.

Procedure and Privileges

Lord Brown of Eaton-under-Heywood Excerpts

Tuesday 13th July 2021 Lords Chamber

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

My Lord, I hope not to detain your Lordships for very long. Largely, I support the proposals in the main Motion.

There is really only one point on which I want to speak, which arises under chapter 2 on page 8 of the report: the interim option of voting using PeerHub. In my view, this is clearly a sensible option to allow us to continue voting by PeerHub until the technology is in place to enable us to move, as is planned, to swipe cards. I also support the proposal that to vote by PeerHub the Member should have to be on the Parliamentary Estate, which I hope includes Millbank so that those such as the noble Baroness, Lady Brinton, can continue to vote. Among the benefits, I hope, of being on the estate is that it may reduce the number of occasions when Members get in a muddle and misunderstand precisely what they are voting for, and, as a result, vote the wrong way, contrary to what they intended. One knows of several cases, in recent times, where that has happened.

My central point, however, is that there is a real problem—and to my mind little or no advantage—in stipulating not only that the Member must be on the estate but that he or she must also be in “a place of work”. That expression is not defined. To my mind, it is incapable of being given a useful definition in this context. What is intended to be encompassed? What is intended to be excluded and why? Clearly, it has to include places such as the Library, Lobbies, the Royal Gallery and so forth, where Members actually often work at desks. Presumably it would, and should, include corridors and other common space where Members meet and discuss parliamentary business and so forth.

I have heard it suggested that the reason for including this requirement is to safeguard the House from possible reputational damage if a Member were to vote by PeerHub in restaurants or bars, but work may very well be done even there. I have written speeches in the Bishops’ Bar myself. In any event, the most that could be required would be that the Member briefly wanders into the corridor in order to press a button. Who would be advantaged by that? Because there is so little point in excluding places of refreshment—and if it were necessary it could be done explicitly—it is difficult to give any cogent definition of what constitutes a place of work.

I am on the Conduct Committee, under the excellent chairmanship of the noble and learned Lord, Lord Mance. For some years before that, I had the honour of chairing the Sub-Committee on Lords’ Conduct. It is against that background that I am troubled by the veiled threat underlying this additional requirement. In this context, we are reminded of our obligation to act always on our personal honour, but it seems wrong to threaten a breach of the code without a clear, positive idea of just where we are allowed to vote and where we are not. This provision does nothing to advance Members’ faith and confidence in the disciplinary process and the concept of personal honour. If anything, it risks bringing that out of favour.

We would never allow this degree of imprecision, this manifest uncertainty, if we were scrutinising legislation, so I suggest we should not do so here either. I invite the Senior Deputy Speaker, when he winds up, to say it that is only if a Member is in a place of refreshment on the estate—if it is thought necessary to exclude that —that they cannot properly confirm, when voting, that they are at a place of work on the estate.

House of Lords (Hereditary Peers) (Abolition of By-Elections) Bill [HL]

Lord Brown of Eaton-under-Heywood Excerpts

2nd reading & 2nd reading (Hansard) & 2nd reading (Hansard): House of Lords
Friday 13th March 2020 Lords Chamber

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

My Lords, this House is often under attack and now is no exception. There is not much that we can do in the way of self-reform to improve our image and reputation, but the Bill provides a real opportunity for just that. Let us show by passing it that we at least are trying to modernise, reform and improve our House. If others then choose to thwart our efforts, that will be seen to be where the blame lies, not with us. That, I suggest, is the answer to those who say that this should be a government Bill.

Before turning to what seems the most basic unanswerable argument in favour of the Bill, I shall repeat what I have said on other occasions. I am one of those who greatly admire our existing hereditaries. Man for man, pace my noble friend Lady Mar, who is of course the only female hereditary Peer, they contribute at least as much as those, like me, who are appointed here. They undoubtedly match us in commitment, expertise and independence of mind and spirit. But, and this is the big but, the main point is that the fundamental objection to continuing to replace them is that the whole system amounts to nothing short of what I, and maybe others, have called an assisted places scheme. It is a scheme whereby a privileged class—namely, the group of 200 or so hereditary prospective candidates—are candidates for 90 places when they fall free. Indeed, they are to be elected by a further privileged class, generally the hereditaries already here, or usually just those few in the group where a vacancy arises. I suggest that this objection is altogether more fundamental than, and indeed subsumes, certain other sound objections to the scheme, which in addition is manifestly both racist and sexist. In short, this system favours a very tiny privileged—as we presume, well-born—group within an overall population of millions who would otherwise be available as candidates. Why should these many others not be at least as good candidates for these places?

To those such as the noble Lord, Lord Strathclyde, and the noble Earl, Lord Caithness, who suggest that at least this scheme ensures that we are not a wholly appointed House, and the fact that 90 are elected provides us with a certain democratic mandate, I say simply: come off it. Is it really to be suggested that those who object to our having no democratic legitimacy—in short, who want an all-elected Chamber—will say, “Oh well, now that you tell us and we understand that you have 90 elected Members who are hereditaries, that’s fine”? Surely that is nonsense.

There is another central objection: that it runs counter to much of the underlying thinking in the report of my noble friend Lord Burns. However, those matters have been dealt with and I shall not return to them. Of course, if it continues it will narrow the choice available to the party leaders of the relevant groups as to who they can appoint on the two-out, one-in—or, eventually, one-out, one-in—system. It is therefore damaging to the party leaders, too.

[Lord Mancroft (Con)]

I am most grateful to the noble and learned Lord. I am slightly confused; does he think that hereditary Peers should come here automatically, like Supreme Court judges? The noble Countess, Lady Mar, is the single hereditary Peeress and the noble and learned Baroness, Lady Butler-Sloss, is the single lady Supreme Court judge. Is that what he is suggesting?

[Lord Brown of Eaton-under-Heywood]

I am not suggesting anything of the sort. Former Supreme Court justices are not routinely appointed here; they are merely, just as the rest of the population is and as the hereditaries should be, candidates for appointment. That is how it should work.

Extension of Franchise (House of Lords) Bill [HL]

Lord Brown of Eaton-under-Heywood Excerpts

2nd reading & 2nd reading (Hansard): House of Lords & 2nd reading (Hansard)
Friday 7th February 2020 Lords Chamber

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

My Lords, three weeks ago, on 16 January, the new President of the Supreme Court, the noble and learned Lord, Lord Reed of Allermuir, was introduced into this House in succession to the noble and learned Baroness, Lady Hale, and I welcome him to our Cross Benches. However, that very same day, by the very fact of his ennoblement to this House, he found himself wholly disenfranchised. He had already served on the Supreme Court for eight years and, during those eight years, like almost all his colleagues, he enjoyed the right to vote in parliamentary elections, but now, ennobled, although, of course, under our rules, immediately disqualified from speaking and voting in this House, he finds himself without a vote here or in parliamentary elections. So too does the Lord Chief Justice, the noble and learned Lord, Lord Burnett of Maldon, who was ennobled in November 2017 and immediately disqualified. They are worse off in terms of the parliamentary vote than a Member of this House who is convicted of a crime and expelled under one of the extremely desirable bits of incremental legislation—I say that in response to the noble Lord, Lord Rennard—which is gradually improving the situation here. The Bill is another manifestly desirable incremental improvement in our position.

I wonder what those who oppose this Bill say about these judges? Do they say that it is merely an anomaly—possibly a regrettable anomaly, but do not worry about it? I suggest that these anomalies are symptomatic of the deeper illogicality of denying us the vote in general elections. In fact, not all Members are denied the vote; one must recollect that it is only temporal Peers. The Bishops continue to have a vote in general elections. Is that perhaps just another anomaly?

I do not pretend that this is a first-order issue. If and when we get the commission on the constitution that is promised—or do I mean threatened?—it will not be item one on the agenda. No doubt there will be an awful lot of issues, such as those the noble Lord, Lord Rennard, outlined, including the voting age, but this is no occasion to debate all those wider issues. We are here concerned to try to eliminate finally one absurd lingering anomaly. Of course, we retain our seats from one Parliament to another and, if not disqualified like our serving judges, we play some part in the legislative process, most usefully perhaps in the scrutiny and revision of Bills that come from the other place, but we all accept—nobody doubts—that the real power lies there. It has the democratic mandate and its policies, particularly the manifesto promises of an elected Government, rule, and rightly so. As has been pointed out, money Bills—taxation—are for it alone. The old adage “no taxation without representation” is waved aside as an historical accident.

What, then, are the arguments? The noble Lord, Lord Sherbourne, demolished those based on history and tradition. If ever it was justifiable to deny Members of this House the vote, it is impossible to see that it is so now. Can it really be regarded as a privilege of our membership here? I suggest that it is conspicuously elitist. It is implicitly suggested that we are just above all that sort of thing—that we are too important to need a vote and should let the democratic burden fall on lesser folk.

I suggest that, although, as I said, we are not dealing with a first-order issue today, there is a genuine point of principle here. Universal suffrage is the badge and symbol of a healthy democracy. It would help the public to recognise that fact if, finally, it were accepted that your Lordships should indeed have not only the benefit but the responsibility of the vote, thereby playing their part in the democratic process of electing the all-powerful other place.

--- Later in debate ---

[Earl Howe (Con)]

My Lords, I hope my noble friend Lord Naseby will allow me to congratulate him on his success in the Private Members’ Bills ballot and on securing this opportunity to raise the question of the voting right of Peers. He deserves enormous credit for bringing this House back to an issue about which I know he feels strongly. As we have heard today, it is an issue with which a number of your Lordships are in considerable empathy.

As my noble friend made clear, the Bill seeks to change the current position, whereby Peers who are Members of this House are not entitled to vote at elections to the House of Commons. The arguments for that change have been succinctly laid out for us, by my noble friend and many other noble Lords, including the noble and learned Lord, Lord Brown.

There is, however, a long-standing rationale for the current position and I would like to draw on this in setting out the Government’s view of the matter. It is a view which I anticipate will come as no surprise to my noble friend or the noble Lord, Lord Kennedy of Southwark. Peers who are Members of this House are already able to represent themselves in Parliament. They do not, therefore, require others to represent their interests, unlike members of the general public. That is the function of Members of the House of Commons: to represent those who cannot be present in Parliament to represent themselves. I therefore have some reservations, if I can put it as mildly as that, about my noble friend’s proposal to extend the franchise to Members of this House. But I appreciate that any issue on democratic participation is worth raising and discussing, and I therefore repeat my thanks to him for giving us this opportunity.

The principle that bars Peers from voting in elections to the House of Commons dates back, as has been said, to a 1699 House of Commons Journal entry. I say to my noble friend Lord Sherbourne that that may be an ancient provision but its rationale applies with equal force today. It is based on the premise I have already set out: that Peers who are Members of this House are already able to adequately represent themselves in Parliament. Parliament of course consists of the three estates of the sovereign, the Lords and the Commons. The Lords sit in their own right. The Commons is elected to represent the general public in Parliament. I do not believe that there is a strong case—there are arguments—for Members of this House to be able to vote to elect representatives to the House of Commons, since they are able to sit in Parliament anyway as their own representatives. This principle has long been established in common law.

Of course the bar on the voting rights of Peers in regard to general elections is not absolute; it applies only to Peers who are Members of this House. Hereditary Peers who do not sit in this House are able to vote in general elections, as are noble Lords who have retired or otherwise left the House under the provisions of the House of Lords Reform Act 2014. The basic principle has therefore been reinforced recently in statute, not simply in common law, as my noble friend reminded us. There is nothing to prevent noble Lords who sit in this House from being heard in the House of Commons. If a Member of this House wishes to pursue an issue as a constituent, such as in the example cited by the noble Lord, Lord Blunkett, there is nothing barring them from raising it with their local MP. Noble Lords can also use their position to ask Parliamentary Questions and introduce legislation.

To address briefly a point raised by the noble and learned Lord, Lord Brown of Eaton-under-Heywood, Supreme Court judges are able to vote in general elections. However, when those judges who are eligible to sit in the House of Lords return to the House, it is then that they are no longer able to vote in general elections. Bishops in your Lordships’ House can vote because they do not have permanent membership of it.

[Lord Brown of Eaton-under-Heywood]

Can the Minister deal with the specific cases I raised of the President of the Supreme Court and the Lord Chief Justice, who are Members of this House but disqualified? They have no vote here and do not have a parliamentary vote. Would he not at least accept that that is a most regrettable anomaly? What he just said as to how other members of the courts have the parliamentary vote is true, but it does not apply if they are Members of this House.

[Earl Howe]

The noble and learned Lord has raised a very interesting constitutional point. It is so interesting that I think it is appropriate for me to write to him about it, and copy that to noble Lords who have spoken. As noble Lords who have stood where I am standing will be aware, there is a point at which the brief in front of a Minister runs dry. That is the case in this instance, but I reserve the right to produce some arguments.

Another issue raised was about the well-worn principle that there should be no taxation without representation. My noble friend Lord Young’s comments on that issue in the debate on 19 July last year were cited. I can understand why the point about a Japanese citizen could be attacked, but a British citizen of voting age who is not a Member of the House of Lords but who pays no income tax retains the right to vote. The point my noble friend was making on that occasion, which I echo today, is that there is not a direct connection in law between people who have paid tax and people who have the vote.

The reason why Members of the House of Lords cannot vote on Finance Bills goes back a long way. The financial primacy of the Commons dates back many centuries and was formalised by two Commons resolutions in the late 17th century. The first, from 1671, states

“that in all aids given to the King by the Commons, the rate or tax ought not to be altered by the Lords.”

That is quoted in Erskine May. The second resolution is more detailed, from 1678—I would love to read it out, because the language is wonderful. Noble Lords suggested that this is an anomaly or even an affront, but none of it prevents this House debating money Bills or tabling debates on a financial matter.

As many noble Lords have pointed out, Peers who are Members of this House can also vote, where appropriate, in elections to the Scottish Parliament, the National Assembly for Wales and the Northern Ireland Assembly; in local government elections; in police and crime commissioner elections; and in both national and local referendums. The difference in those instances, I say in particular to my noble friend Lord Bourne of Aberystwyth, is that those are forums or offices in which Peers do not have an automatic right to represent themselves.

Noble Lords therefore have a say in local, devolved and national decision-making. Enfranchising noble Lords to vote in general elections would give Peers two ways of being represented in Parliament—it would give them double leverage as citizens. My noble friend Lord Sherbourne suggested that there is no possible downside to such a change. The Government believe, on the contrary, that conferring such an exceptional privilege cannot be right.

I was asked by the noble Lord, Lord Adonis, and others to say something about the commitment in the Conservative manifesto to review the relationship between the Government, Parliament and the courts in a constitution, democracy and rights commission. I wish I could provide him with further and better particulars on this commitment at this juncture, but, as I have said on two occasions recently, it is still too soon for me to do so. The scope of the commission will be announced in due course. However, I can tell him that the aim of the commission will be to develop proposals to restore trust in our institutions and in how our democracy operates. I hope I need not say, although I will, that we will continue to promote the UK’s interests and its values, including freedom of speech, human rights and the rule of law. It is clear, I hope, to most noble Lords that careful consideration is needed on the composition and focus of the commission.

In light of all that I have said, I must end with a disappointing message to my noble friend. Even if the Government supported the principle behind this Bill, and I hope that I have set out clearly our reservations about it, they do not think that spending further parliamentary time on it is justified when other, more pressing electoral reforms—reforms which the Government are working hard to bring into being—have been so widely called for.

Business of the House

Lord Brown of Eaton-under-Heywood Excerpts

Thursday 4th April 2019 Lords Chamber

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

My Lords, pace the noble Lord, Lord Warner, not in his place, the noble Lord, Lord Scriven, and now my noble friend Lord Bilimoria, and recognising that I shall not be making myself popular by this, I start by strongly regretting today’s succession of guillotine Motions. I believe that this dramatic expedient for halting all further debate is a radical and exceptional device, as the speaker each time seeks to remind us, suitable for, but only for, obvious filibustering contributions when no cogent position is being advanced or defended, not for an afternoon such as this, where truly serious questions underlie the debate. It is one thing to have deployed it, as recently by the noble Lord, Lord Cormack, on the Grocott Bill about by-elections for hereditaries. There, it was purely for killing amendments with, I certainly accepted, no substance. To do it here, I suggest, is really not, I hope, a precedent for the future.

I turn very briefly to the Motion, with one or two sentences only. Although the Bill passed late last night after a much abbreviated debate by a single vote, we, as an unelected House, obviously have to be wary of being thought to thwart the will of the elected Chamber. That said, surely we would have to be very certain indeed of the critical need for the Bill, which is essentially promoted as an insurance policy against the risk that the Prime Minister may somehow dramatically let us down and breach her promise to us. We would have to be sure too of the urgent need for the Bill to be passed today, rather than on Monday, to justify so dramatic a curtailment of this House’s ordinary, vital scrutiny functions.

I cannot resist the beginning—alas, I can never remember more than two lines—of a spoof letter to the Times from some 70 or 80 years ago, perhaps by AP Herbert: “Sir, I crave a tiny portion of your valuable space, To record my stupefaction at the follies of our race”—if anybody could finish it, I would be enormously obliged and readily buy them a drink. I today feel stupefied that we have reached a point which begins to look ever less necessary, and would echo the suggestion made an hour or two ago by the noble Lord, Lord Cormack, for a double consensual approach to try to inject some time into this process. I simply repeat: postpone Committee and Report until Monday, and extend the time left today for the Second Reading speeches through the noble Lord, Lord Forsyth, graciously forgoing—as I understand he has already agreed to do—his two debates which otherwise were to be heard before this Bill proceeds. If that were arranged, we could bring this whole matter to an end and start the Second Reading debate. In 20 minutes, everybody could get tea, agree to that and then proceed to Second Reading.

[Lord Framlingham (Con)]

My Lords, it is a great pleasure to follow the noble and learned Lord, Lord Brown, and I agree entirely with his remarks—particularly his final recommendation. The one thing of which he cannot be accused is being a member of the ERG, which is very refreshing. I shall be brief, because, as always in these debates, much has been said. However, I claim the right to say what I think on important occasions such as this.

The noble Baroness, Lady Hayter, started off by saying that unconventional times require unconventional measures. I could not disagree more. In unconventional times, you need conventional measures to keep your bearings and know where you are. Otherwise, if you are not careful, you descend into chaos. Not many days ago we had a debate in this Chamber revolving around statutory instruments, dealt with by my noble friend Lord True. I will repeat the point he made again and again: we must always draw huge difference between the great issues which we want to discuss—the things that divide us and about which we get very worked up—and the framework within which we discuss them. Today we are destroying the framework. If we do that, there is a danger of descending into chaos. Some outside this Chamber may say—the people of this country are starting to say—that it is chaos that we between us have created.

This is a momentous decision, and it needs time. It seems to be generally accepted in the country that we will rubber-stamp it; that the Bill will take a little while today, but then go through. The media treat it that way. But we cannot be seen as a pushover, a rubber stamp or a mere formality. Otherwise, as has been said by many, we have no justification to continue to exist.

In days gone by—quite a while ago, I remember, when I was a Member of the House of Commons—time used to be the Opposition’s main and legitimate weapon. Yes, it meant that things were sometimes strung out, but it also ensured scrutiny without time limit. That meant proper scrutiny in real depth; you did not make the same degree of mistakes. To cut the debate short in those days, which was rare, there was such a thing as a guillotine. Over the years, the guillotine became “programming”, which is the modern word for it. The House of Commons now guillotines things routinely, with the result that, like a sausage machine, we get half-thought-through legislation from down the Corridor, which we have to deal with by the bucketload. This is just part of the same thing. Surely we must maintain our right to correct if need be or to look carefully at what they do, and, if need be, to ask them to think again.

The Bill itself is an abuse of the parliamentary system. To ram it through in one day like this would be to compound that abuse. The truth is that it is all part of the plot to stop us leaving the European Union—I am not afraid to mention that. The noble Lord, Lord Bilimoria, just intervened on somebody in the debate; he now spends night and day working to stop us leaving the EU. I find it hard to take remarks from people in this Chamber when I know what their motives are. There has been a huge amount of dishonesty over the last two and a half years, not least from the gentleman who is burbling from the Opposition Back Benches.

Brexit: Withdrawal Agreement and Political Declaration

Lord Brown of Eaton-under-Heywood Excerpts

Thursday 6th December 2018 Lords Chamber

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

My Lords, for a remainer like me who deeply regretted and still regrets the outcome of the 2016 referendum, there was never going to be—never could be—a happy ending to this story. For that reason, I have reluctantly come to support the deal now on offer. I make five points.

First, imperfect though I recognise the deal to be—although not as damaging as some would urge—I support it as the least-bad option now available. It is a better solution than any alternative way ahead and as good a Brexit as any we can now hope to achieve. Its defects, or comparable defects, were necessarily implicit in the original referendum vote. The very fact that it satisfies no one, least of all the diehards on either extreme—those still intent on remaining and those equally intent on leaving with no deal—seems to me a plus. I acknowledge that everyone loses a little, but no one loses everything and there are no winners. That gives the best chance of actually healing the divisions that now exist and ending the present nightmare—the mess that we all agree we are now in. I cannot pretend that it brings final clarity and certainty, because uncertainties inevitably remain as the political declaration is worked through.

Secondly, if Parliament is to reject this deal, my hope would be for the EU to give us just a jot more, perhaps on the backstop. Alternatively perhaps, as the noble Lord, Lord Owen, urged yesterday, we should move—pivot is the fashionable word—to rely on our EEA membership. I myself advocated that during the debate in summer 2017 on the Queen’s Speech. I pointed to a number of specific benefits of such a course, several of which, including freeing ourselves from the common fisheries and agricultural policies, are now mirrored in the deal on offer. For my part, however, I do not regard the conceivable benefits of such further negotiations as worth the delays and risks that they would carry.

Thirdly, in common with most of your Lordships, I believe the no-deal scenario to be disastrous, particularly for the most vulnerable in our society. Yet there remains the real risk of such an outcome if the present deal is rejected. Those still canvassing for that—the zealots, as some would call them; I prefer to call them the non-compromisers—are perhaps trying to run the clock down so that it actually happens. Noble Lords should beware and recognise that, absent further legislation, that would indeed happen on 29 March 2019.

Fourthly, in earlier debates, I spoke in support of a second referendum in the hope that enough of the electorate, appreciating the real difficulties of leaving the EU and the limitations of even the best deal available for leaving, would have changed their minds. But I have come to conclude that that hope does not outweigh the grave disadvantages of such a course, which are as follows. The first is the delay, the disruption and the acute further divisiveness involved in a further referendum. Secondly, there is the real risk that a majority may still vote to leave. I fear that that could and likely would result in a hard, no-deal Brexit. That risk was identified and convincingly explained in a piece by Jenni Russell in today’s Times. Thirdly, even if a majority voted to remain, those who in 2016 voted to leave would be up in arms, feeling, however unjustifiably, cheated of their earlier victory. I think that many of your Lordships would agree that the 2016 Brexiteers included the most politically disaffected, disengaged and disadvantaged people in our society. Were we now to remain, I fear that they would feel betrayed by Parliament such as to cause lasting damage to our democracy and the public’s faith in our political processes.

Fifthly and finally, I come to the vote next Monday night on the Opposition’s Motion and on my noble friend Lord Butler’s amendment to the Motion. On that, I agree precisely with what my noble friend said in his speech yesterday. Of course it is for the other place to take the decision on this deal, and of course, as indicated, I would emphatically reject a no-deal outcome. But I cannot regret the deal proposed given that it is the best outcome now available to us. I shall vote for the Butler amendment and I hope that sufficient numbers of others will do likewise so as perhaps to influence possibly one or two Members at least of the other place to decide in that way.

House of Lords: Lord Speaker’s Committee Report

Lord Brown of Eaton-under-Heywood Excerpts

Tuesday 19th December 2017 Lords Chamber

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

My Lords, this report has my wholehearted support. It is a most thoughtful and imaginative piece of work. I am not one of those who appear able to contemplate with equanimity the ever-growing expansion of this House. Doubtless many of us would have preferred, to a greater or lesser degree, some difference in one or other of the several particular measures that together go to make the intricate overall solution proposed. Some might have preferred to end up with a House smaller than 600, some to have achieved a cap in a shorter time, some to have provided for longer than 15-year fixed-term appointments and so on.

I will make two comments on this. First, any such detailed considerations are surely for a future debate. Today is for determining the House’s support for or rejection of the report in principle. In any event, we need to bear in mind that any change to the proposed scheme has knock-on effects and that this has been unanimously hammered out by a most expert and experienced group—I have the highest regard for each one of them—after months of hard work. The plain fact is that unless a very substantial consensus in favour of this scheme is arrived at today by the House as a whole, none of this will happen and we will instead continue—probably indeed worsen—our present unsustainable position.

A substantial consensus is required, but, above all, this proposal will then require the support of 10 Downing Street. If we can get that now, it will not be easy for any of the Prime Minister’s successors to collapse the scheme later—certainly everybody would then know where the blame lay. To my mind, this is the best possible scheme for winning the Prime Minister’s support. It provides for much the same number, rate and nature of future appointments as in years past—certainly, if one puts aside the perhaps over-fecund years of Mr Blair and Mr Cameron. It allows both for refreshment of the House, including new Front-Bench appointments, and for its rebalancing by reference to the latest general election results. If there are to be significant changes to any of the pieces which go to make up this intricate jigsaw solution, I respectfully suggest that they be only changes suggested by No. 10 itself. If that is the price for winning the necessary consent to the constraints on the Prime Minister’s future prerogative powers of appointment that we now propose, so be it.

I know that one or two Members of your Lordships’ House are concerned at the 15-year fixed-term proposal on the basis that it may discourage youthful appointments of people who would then be left high and dry in their 50s or 60s. This is an overstated objection. Essentially, this is a House of elders, of people whose real value is their acquired expertise and lifetime experience. Generally, they should only rarely be appointed before they are around 50 or so. In that case, given that the scheme expressly provides for them to take a five-year sabbatical during their fixed term without it counting towards the 15 years, they would be upwards of 70 when their term ended. Surely if what they seek is essentially a political career, it is election to the Commons that they should be after and not appointment here.

Really, this is a once-in-a-generation opportunity to reduce and cap the size of this House. I respectfully urge your Lordships to seize it.

Brexit Negotiations

Lord Brown of Eaton-under-Heywood Excerpts

Monday 11th December 2017 Lords Chamber

[Baroness Evans of Bowes Park]

My noble friend is right that the Prime Minister has also been clear that the UK will honour its commitments and obligations. We have agreed a fair settlement of commitments we have made while a member of the EU in the spirit of our future partnership.

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

My Lords, I welcome the fact that over the next eight years, our courts will be able, in the event of dispute as to citizen’s rights, to refer the case to the ECJ for interpretation. But are there any circumstances in which the Minister could foresee that, having obtained such an interpretation although the case itself would be determined by the UK courts, they could actually refuse to follow it?

[Baroness Evans of Bowes Park]

As I have already said, the ability of our courts to ask the ECJ for a view will be voluntary, very narrowly defined and time limited. The courts can choose to ask the ECJ for a legal view on the law in relation to citizens’ rights where there is a point of law that has not arisen before, but our courts will make the final judgment on each case, not the ECJ.

European Union (Notification of Withdrawal) Bill

Lord Brown of Eaton-under-Heywood Excerpts

Monday 20th February 2017 Lords Chamber

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

My Lords, I support the Bill with the deepest misgivings. Like many others, I remain a remainer and I continue to believe that Brexit will surely impoverish and certainly not enrich this country and, indeed, Europe as a whole—economically, culturally, politically, socially, you name it. Why, then, support it? Not because I am fearful we shall otherwise be abolished—plainly, we will not succumb to bullying of that sort. Indeed, I do not believe we could be abolished, certainly not by invoking the Parliament Acts. Nor do I support the Bill because, as we constantly acknowledge, we are essentially a reviewing and revising Chamber only able occasionally to delay, never to reject, legislation proposed by the elected House.

In this instance it is perfectly plain that the majority in the Commons voted for the Bill, assuming, of course, that they were not indisposed on the night, notwithstanding their opposition to Brexit in principle, either because they were fearful of otherwise disaffecting constituents and losing their seat or—a more generous view—because they felt compelled to give effect to the referendum vote and honour the result. It is that which in the end impels me, too, to support the Bill while at the same time recognising the strength and integrity of the opposing view.

Those minded to reject the Bill may ask, what about the 48% who voted to remain? What of the Brexiteers’ profoundly misleading referendum campaign? What of the obvious disagreement among the 52% majority as to what Brexit actually entails and what are its central aims? What of the absurdity of supposing that the electorate faced a simple, binary choice, so that the course now required to give effect to their vote is perfectly plain? What of the Supreme Court’s decision that the referendum was, after all, in law only advisory? So constitutionally, as parliamentarians, ought we not now to be exercising our own independent best judgments as to whether, after all, to take that advice and pursue Brexit? As I say, I recognise the force of these points, not least cumulatively, but in the end I still believe that they are outweighed by the compelling need to interpret and implement as best we may the referendum result. In short, whatever damage we judge Brexit may do to the national interest in so very many important ways, it is still less than the damage I believe would inevitably be done to the public’s trust in the political process if we were now to thwart the majority vote.

The plain fact—plain at least to me—is that the 52% of Brexiteers included the most politically distrustful and disengaged sections of society. Of course, I do not say that of all Brexiteers; nor do I say that any, or certainly many, would take to the streets violently if we were now to frustrate their success in the referendum vote; but I do say that it would take generations for the public’s confidence in the democratic process to be restored. Of course, there are lessons to be learned from all this: above all that referendums are intrinsically dangerous devices, incompatible with representative liberal democracy. Par excellence that was true of the Brexit referendum, requiring as it did a bare-majority decision on a complex question of the most profound importance, supposedly offering a simple binary choice and realistically offering Parliament no option now but to accept the outcome and embark on this hazardous course of at least initiating the Brexit process.

As for the future, who knows where we and indeed the rest of Europe will be 18 months or two years down the track? For that reason, I am disinclined to support any of the amendments designed to bind the Government at some future point. Least of all should we now bind the Government to a further referendum at the end of the process, at any rate on a bare majority, although one could toy with the idea of perhaps having a referendum requiring a 55% or even 60% majority.

All that said, there are three things I now implore of the Government. The first is a full and immediate assurance to all EU citizens already here before the Brexit vote as to their future, no doubt subject to risks of deportation for criminality and the like but otherwise unconditional. That is the right thing to do. Not entirely coincidentally, it would be the politically and diplomatically astute thing to do. Secondly—the noble Lord, Lord Hannay, touched on this—I implore the Government not to adopt an inflexibly doctrinaire approach to severing our links with the European Court of Justice. There is really no room for zealotry with regard to at least some areas of future co-operation in Europe, crime and policing prominent among them. Thirdly and finally, I ask the Government to consult as fully as possible at all stages and listen to the voices of wisdom, experience, expertise and sound judgment, many of which are to be found in your Lordships’ House.

Judicial Independence

Lord Brown of Eaton-under-Heywood Excerpts

Wednesday 7th December 2016 Lords Chamber

[Lord Henley]

My Lords, I agree with the right reverend Prelate; it is very important that we listen to what is in the press. But I cannot police what is in the press. All I was saying in my original Answer is that that is part of the educative process. What Ministers say is also important. That is why I repeated what my right honourable friend the Lord Chancellor said, and what my noble and learned friend Lord Keen said.

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

My Lords—

[Lord Goldsmith (Lab)]

My Lords—

--- Later in debate ---

[The Lord Privy Seal (Baroness Evans of Bowes Park) (Con)]

My Lords, it is the turn of the Cross Benches.

[Lord Brown of Eaton-under-Heywood]

Does the Minister agree that the real vice and mischief of misconceived attacks on the integrity and good faith of the judges is not the hurt that it causes the judges—judges are not there to be popular and they tend to develop pretty thick skins—but rather the fact that it undermines the public trust and confidence in the administration of justice, and it is that which damages the rule of law?

[Lord Henley]

The noble and learned Lord is quite right, and right to emphasise that judges have in themselves very thick skins—the noble and learned Lord will know this. It is also right, as I made clear in my original Answer, that we are very keen to see greater understanding of the role of the judiciary and how it operates. The Government will continue to support that.