Outcome of the European Union Referendum

Lord Brown of Eaton-under-Heywood Excerpts

Tuesday 5th July 2016 Lords Chamber

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

My Lords, the noble Baroness, Lady Walmsley, whom it is a pleasure to follow, is an orator. She has spoken eloquently on the question of the NHS. I am but a dry, superannuated lawyer. I shall leave the merits of this debate behind, although I should perhaps begin by saying that I favoured and voted for remain. Indeed, as I had suggested in a letter to the Times, whatever might be thought to be our national interests, the wider interests of Europe as a whole surely dictated that we should remain. But that is now mere nostalgia; the present reality is that the majority of our citizens have voted to leave. We have already lost not only a Prime Minister but the benefits—limited though they no doubt were—that he achieved in the February negotiations.

The only lawful route to leaving is via an Article 50 notification. So much is clear and, I think, undisputed among lawyers. It is clear, too, that we cannot lawfully repeal the 1972 Act—in particular, those parts of it that submit us to the paramountcy of EU law—until we have reached the point of leaving the Union. Until we leave, we need it. Altogether less clear is whether, under UK law, a parliamentary process—probably an Act of Parliament—is necessary to authorise an Article 50 notification of withdrawal, or whether this can be done by the Executive under prerogative powers. As we know, this issue is now apparently to be the subject of litigation. The noble Lord, Lord Pannick, consistently argues the view that he expressed in his Times column last week that legislation is required. In a letter in yesterday’s Times, the noble and learned Lord, Lord Millett, a retired Law Lord, took the contrary view. If this issue has to be litigated, it will be decided, as the noble Lord, Lord Kerr of Kinlochard, said, purely by reference to our domestic law because it depends ultimately on, in the language of Article 50(1), our “own constitutional requirements”. I tend, as he did, to share the view of the noble Lord, Lord Pannick, that legislation is necessary, but that may become an academic issue. The noble and learned Lord, Lord Millett, ended his letter by saying that, in practice,

“it would be politically impossible to implement Article 50 without the consent of the House of Commons”.

I suggest, too, that it would need the consent of your Lordships’ House.

The critical question is this. I suppose there to be a substantial majority of the Members of both Houses—many in the light of the gathering uncertainties as to precisely what Brexit will involve—who are now strengthened in their belief that Brexit will be profoundly damaging to our national interests, let alone the wider interests of Europe as a whole. Notwithstanding this, should Parliament none the less give effect to the outcome of the referendum vote by authorising an Article 50 notification on whatever basis the incoming Prime Minister believes is best?

The arguments for and against our feeling bound to follow the will of the majority expressed in the referendum vote are obvious on both sides. They have already been widely canvassed by several of your Lordships and I shall not rehearse them. They are neatly encapsulated in today’s Times correspondence columns. Vernon Bogdanor suggested that rejecting the referendum result would be “very dangerous” for democracy—in short, a betrayal of the already somewhat fragile trust that the public have in us as parliamentarians. But other letters suggested that since parliamentary sovereignty was a central plank of the Brexit campaign, the campaigners could hardly complain if Parliament now rejects their vote to leave the EU. I have to say, albeit with great reluctance, that like the noble Lord, Lord Butler of Brockwell, I am of the clear view that we have to give effect to the leave vote. This referendum was, after all, legislated for by a large majority in Parliament and designed to settle once and for all a basic question of principle, even though, ineptly, as others have pointed out, it is suggested that we are faced with a simple binary choice.

I shall say a word on the subsidiary question—another legal question—as to whether an Article 50 notification is irreversible. Suppose, following such a notification and negotiations under it, it becomes apparent that, after all, the best deal available would be conspicuously worse than remaining in the Union, could we simply abort the process and simply say that we are going to stay, or would the process have to proceed inexorably to the exit door? The noble Lord, Lord Kerr of Kinlochard, suggested that we could change our mind, and so, too, did Sir David Edward, our distinguished judge who used to be in Luxembourg, and Professor Wyatt in their evidence to the EU Committee of the noble Lord, Lord Boswell. I hope that they are right but I have to say that I have read very powerful legal arguments to the contrary. This is a legal issue which, if it did arise, would have to be decided by the ECJ. Alas, we cannot count on being given a second chance to stay once we have started negotiation and proceeded down that road. Of course, the other 27 states may be happy to allow us to change our minds, particularly if, as the noble Lord, Lord Butler, envisages, the Union had already moved—as one day it is likely to—to a less extreme position on the issue of freedom of movement. However, I am not optimistic about this. I fear that the rest of the Union will not wish to be seen to be trimming this cardinal principle to encourage a generally disobliging state—as they would perceive us to be—to stay with them. That said, there was not a word in the speech of the noble Lord, Lord Butler, with which I disagreed. This is essentially a concurring judgment, not a dissent.

Because, however, we are unable to guarantee a second choice—a second bite of the cherry—it is surely imperative that we do not notify our Article 50 decision until we have in place a plan which the Government are quite sure will satisfy those who voted for Brexit and is likely to be achievable in the real world. Alas, at present, plainly no such plan is agreed by all Brexiteers. One has only to contrast the speech today of the noble Lord, Lord Lawson, on the one hand, with the much more cautious, nuanced suggestion of continued close association with the single market in the speech of the noble Lord, Lord Maude, on the other. That is a difference replicated by the contenders for the next premiership. One day, no doubt, the clouds will clear on this issue, but I fear that thunderstorms are all too likely along the way. Boris may have gone but he leaves appalling problems in his wake.

English Votes for English Laws

Lord Brown of Eaton-under-Heywood Excerpts

Wednesday 21st October 2015 Lords Chamber

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

My Lords, the principle of EVEL was not only a specific manifesto commitment of this Government; it appears to command widespread popular support. Like the noble Lord, Lord Butler, I support the principle, but I support it only if it is implemented in an appropriate way. That surely must be by way of primary legislation after full debate, in both Houses, of all the various matters that we have brought up today, not merely by rule changes in the House of Commons, as is now proposed. To create, as the Government propose, two classes of Members of Parliament, one with more extensive powers than the other—essentially a power of veto over the other in certain circumstances—is a measure of such obvious constitutional importance and sensitivity as to demand legislation.

There are basically two different ways to resolve the long-outstanding West Lothian question to reflect the fact that, logically, in devolved areas of law, Scottish MPs should have a lesser input than English MPs or, as the case may be, English and Welsh MPs, given that legislation in these devolved areas has no effect—put aside the possibility of some purely incidental effect through the operation of the Barnett formula—on their constituents. Scottish MPs’ constituents’ interests in these devolved areas are taken care of by Members of the Scottish Parliament. One possible approach is that which has been advocated in earlier debates by, as I recall, the noble Lord, Lord Forsyth, and, I think, also the noble Lords, Lord Lawson and Lord Cormack. It is based on the Irish precedent and is to reduce the number of Scottish Members of Parliament to reflect the fact that, because of a measure of devolution, their constituents have fewer interests being decided by the Westminster Parliament. The intended reduction of Westminster MPs from 650 to 600 and the existing requirement for a new Boundary Commission report surely offer a good opportunity to deal with the problem in that way. Clearly, as in the past in the case of Northern Ireland devolution, this would need, as it attracted in Ireland, primary legislation.

The alternative way of implementing EVEL is essentially the one now proposed by the Government—although inappropriately proposed by way of rule change—limiting in some ways the powers of Scottish MPs in respect of such legislation as following devolution will apply only in England or, as the case may be, in England and Wales. For simplicity’s sake, let us just call the dichotomy England/Scotland. Logically, on this approach, Scottish MPs’ powers should surely be limited no less in respect of their ability to vote down fresh legislative proposals affecting only England—for example the proposed modification of the existing fox hunting laws, as was proposed earlier in the year—than in respect of their ability to promote legislation which is otherwise opposed by a majority of non-Scottish MPs. The rule change currently proposed would limit Scottish MPs’ powers only in this latter respect. In other words, it would give non-Scottish MPs what effectively amounts to a veto over legislation proposed by a majority which is dependent on the votes of Scottish MPs. Perhaps that is because the proposal was originally devised in order to combat what seemed during the election campaign to be—as some certainly saw it—the threat of a Labour Government dependent upon support from Scottish MPs. It must be recognised that the current proposal would not enable a Government to pass legislation which Scottish MPs could help to defeat. There seem to be obvious pros and cons to each of these two basic ways of limiting the powers of Scottish MPs in respect of devolved matters—respectively, reducing the number of such MPs or reducing their ability as Members to influence certain new legislation. The latter method is more nuanced and targeted to particular cases, but it is of course hugely more complicated.

The latest Cabinet Office document from October 2015 extends to no fewer than 31 pages, seeking to set out and explain the proposed revised changes to the House of Commons rules. Indeed, this scheme still leaves a number of unresolved problems, many of them identified today, including of course that canvassed earlier by the noble Lord, Lord Forsyth. I wonder whether the answer to his question is that if these changes are indeed achievable simply by a rule change, as proposed, then a Government in the position that he postulates would simply change the rules to revert to where they are, so we would not at all have the permanence that we would hope to get with primary legislation.

For my part, because of these obligations and difficulties, I prefer the solution, imperfect though it is in turn, of limiting the numbers of Scottish MPs, as happened in Northern Ireland. Crucially, though, whichever of these solutions is adopted, it really should be by way of legislation. I, too, deplore the fact that the Government seem simply to have discourteously presented us with a fait accompli. In common with others, I hope that the House of Commons may in fact thwart the Government’s desires in that tomorrow.

House of Lords Reform

Lord Brown of Eaton-under-Heywood Excerpts

Tuesday 15th September 2015 Lords Chamber

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

My Lords, as a member of the subgroup led by the noble Lords, Lord Cormack and Lord Norton of Louth, I am altogether more interested in learning the views of others than in expressing any clear views of my own today.

Two things are clear beyond doubt. First, the size of this House really is a problem—alas, not the only problem we face with regard to the reputation of the House, but the one which in my experience is generally the first criticism to be levelled against us with a measure of mockery. We are, indeed, becoming something of a laughing stock, and it cannot go on. Secondly, it is now for us to devise, if we possibly can, a workable solution acceptable to the House as a whole, difficult though that may be in the light of the very many differing views that have already been expressed in the course of this debate. Whatever solution we may devise will ultimately depend for its effectiveness on the Prime Minister being prepared to be fastidious and reticent in the exercise of his prerogative for the future.

As for what the solution may be, I will tentatively offer a few thoughts. First, the fact that we are a House of part-time Members is clearly not understood by the great majority of the public. There are plainly advantages in having within our membership a number of people, experts in their particular field, whose expertise can usefully be called on as and when it is required, but who are not regular attenders of the House. Of course, such Members occasion no expense to public funds unless and until they actually attend and claim an allowance, but undoubtedly, in the public perception, they swell the numbers of the size of the House. Moreover, unless they attend a substantial proportion of proceedings, they cannot realistically play any very effective part in the business of the House. There seems to me to be an argument for moving gradually towards a House consisting largely of working Peers who attend regularly and contribute widely.

It is idle to suppose that Section 2 of the House of Lords Reform Act 2014, on non-attendance during the course of a Session, will play any significant part in the size of the House. It will not—not even if, as I would hope, the basis on which Members can obtain leave of absence is very considerably restricted.

Secondly, as others have also pointed out, although our principal function is as an advisory Chamber, scrutinising, revising and occasionally delaying proposed legislation—acting, therefore, rather as wise elders than as an essentially party-political group—we should recognise the need to attempt some broad relationship between party representation here and in the other place. The Motion moved by the noble Lord, Lord Lea of Crondall, calls this,

“an appropriate balance between the political parties”,

although—and this point has been made too—before 1999 there was never such a balance under a Labour Administration. Perhaps this could be achieved in the sort of way that the noble Lord, Lord Jopling, has suggested for some years: by periodically fixing the size of each group and then achieving that by election within the group. In the mean time, it may be hoped that those Members belonging to parties that are overrepresented will act rather as elder statesmen than as promoters of policies that have not apparently been accepted by the electorate.

The third point is that of age. Unless the proposals of the noble Lord, Lord Jopling, are adopted, it will become difficult to resist any longer the suggestion that we need to reduce the size of the House by introducing some age limit. The proposal of the noble Lord, Lord Steel, may be the way ahead, there being an obvious advantage in fixing it by reference to the end of a Parliament to achieve continuity. Of course it would mean that some Members would remain until the age of 85. I note that judges appointed since 1995 have to retire not at 75, as my generation did, but at 70. The position is not quite as the noble Lord, Lord Steel, put it.

Surely we should think about following a different, parallel route. May it be desirable instead that at some given age a Member should become what might be called “emeritus” and at that point cease to be entitled to the daily financial allowance? Attending the House is, of course, a privilege and honour—indeed, it is a fulfilling and pleasurable way of spending one’s advancing years. Almost all Members—certainly those aged over 75—will have a pension and perhaps some savings. In any event, they will be unlikely to be forfeiting other sources of income through their attendance here. By all means, pay the direct expenses of those who come from afar, but why more? It is just a thought; its obvious advantage would be to ensure that we could thereby retain the wisdom of our elders as emeritus Members of the House.

Parliamentary Privilege

Lord Brown of Eaton-under-Heywood Excerpts

Thursday 20th March 2014 Lords Chamber

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

My Lords, like the noble Lord, Lord Norton, I congratulate the Joint Committee on its work and its report and also the noble Lord, Lord Brabazon of Tara, on his crisp and clear introduction of this debate.

This is an admirable report: thoughtful, clear, incisive and readable. Although, as I shall indicate, I do not agree with quite all its recommendations, indisputably it provides a sound platform on which to consider and eventually come to decisions on the way ahead.

I certainly agree, as do the Government, with the committee’s conclusion that there is no strong case for a comprehensive codification of parliamentary privilege. I was one of the court of nine—my noble and learned friend Lord Hope of Craighead was another—in the Supreme Court, which heard the cases of Chaytor and two others late in 2010. We signed up to what I believe can be regarded as the magisterial judgment of my noble and learned friend Lord Phillips of Worth Matravers. I like to think that that decision solved what might otherwise have been seen as a number of doubts and tensions in the relationship between the courts and Parliament.

I agree with all that the noble Lord, Lord Norton, has just said about this, in particular the advantages of the flexibility of the present system and relying on the comity between the institutions involved. I share his regret at the banishment of the Law Lords back in 2009 across Parliament Square.

Of the various other conclusions reached by the committee I will focus on only four, and even then comparatively briefly. The first concerns judicial questioning of proceedings in Parliament. The starting point here is Article 9 of the Bill of Rights of 1689:

“That the freedom of speech and debates or proceedings in Parliament ought not to be impeached or questioned in any court or place out of Parliament”.

The decision of the seven-Member appeal committee of this House in Pepper v Hart in 1993—just over 20 years ago—was a landmark decision which, for the first time, allowed the use of parliamentary material as an aid to statutory construction. However, this relaxation of the rule was made explicitly subject to stringent conditions: first, that the legislation was ambiguous or obscure or could lead to absurdity; secondly, that the material sought to be relied on to explain it was made by the Minister promoting the Bill; and, thirdly, that the statements to be relied on were clear.

Over the past 20 years, there has been a great number of occasions when counsel has explored and cited Hansard in an effort to bolster their contended for construction of legislation, but far fewer occasions on which they have succeeded in that aim. As the noble and learned Lord, Lord Mackay of Clashfern—the then Lord Chancellor—predicted in his lone dissenting speech in Pepper v Hart, the necessary researches in Hansard have in these cases resulted in a substantial increase in the cost of the litigation, and it may be doubted whether this has in truth been justified.

There is also the risk that Ministers promoting legislation may make statements which are specifically designed to assist government in the event of future disputes as to the proper interpretation of the legislation. As the noble and learned Lord, Lord Steyn, suggested in an Oxford lecture some years ago which doubted the wisdom of the decision in Pepper v Hart, courts should be inclined to use the relaxation of the rule—if at all—against government rather than in government’s favour. All that said, I am inclined to agree with the committee’s report, and the Government’s response to it, that at present no further action is needed.

On the linked questions of the disapplication of Article 9 in certain circumstances, and the repeal of Section 13 of the Defamation Act 1996, which qualified Article 9, there is not much that I want to add save that I wholeheartedly agree—as do the Government—with the committee’s recommendations. The proper honouring of Article 9 is essential to free speech in Parliament and, frankly, none of the envisaged exceptions to it begins to make sense. Indeed, Section 13 can itself be seen in hindsight to have been a serious mistake. Ironically, nobody will have seen this more clearly than Mr Neil Hamilton, in whose ostensible favour Section 13 was originally enacted. Your Lordships will recall—indeed, the noble Lord, Lord Bew, recollected this—that Mr Hamilton was originally thwarted in his libel claim against the Guardian newspaper in the cash for questions affair because, the newspaper being at that stage unable to use the parliamentary material as it wished to justify the publication, the judge inevitably had to stop the case. Once Section 13 was enacted, however, Mr Hamilton was able to pursue such a claim, but, of course, in the end it failed dramatically.

I wish to say a brief word on the registration of Members’ interests. I should note that currently I have the honour of chairing the Sub-Committee on Lords’ Conduct, which is a sub-committee of the Privileges and Conduct Committee of this House. In common with many others, I regard the first instance decision in the case of Rost v Edwards in 1990 as a curious aberration, which, if ever it becomes necessary to litigate this point in future, will not survive. Such matters as the register of interests seem to me plainly matters within Parliament’s exclusive cognisance.

I want to say a few words about jury service and witness summonses. It is on these two questions that I find myself in respectful disagreement with the committee’s recommendation, but therefore in agreement with the Government’s rejection of the committee’s proposals. I would not wish to legislate to exempt Members of either House from jury service, from which they are presently not excused, but I would wish to legislate to remove Members’ current right not to respond to witness summonses.

As to Members acting as jurors, the courts may be expected to continue to treat them with great consideration and to grant requests to defer jury service where it would otherwise lead to clashes with Members’ public duties. However, given the widespread sweeping away of exemptions from jury service, which includes that of judges at all levels of the judiciary, Members should not in my view seek to re-establish their own exemption. Indeed, to my mind, it should be quite the contrary. It seems to me enormously valuable that Members of both Houses should experience jury service, and thereby gain a real understanding of what it entails and the strengths and—I may add—weaknesses of the jury system.

As the noble Lord, Lord Blair, pointed out in a Question asked in the House only last week, Section 8 of the Contempt of Court Act 1981 currently prevents almost any research into the workings of the jury system. That section was, it so happens, included in the Act to repair a failure of my own when, as Treasury counsel in, I think, 1980, acting on behalf of the Attorney-General, I unsuccessfully prosecuted the New Statesman for contempt of court for publishing a juryman’s revelations of the jury’s deliberations in the Jeremy Thorpe trial. There was then no law against it. We relied, unsuccessfully, on the common law.

Judges who serve as jurors can now see how it all works in practice—so, too, should parliamentarians. As to witness summonses, again, Members should not be privileged. I agree with the noble Lord, Lord Norton, on this, too. Perhaps this is a matter rather more of perception than of substance. The reality is that, even assuming this privilege is removed, it will be perfectly possible to have witness summonses set aside, assuming they have been issued vexatiously.

On the separate Motion of the noble Lord the Leader of the House, I have nothing to add to what the noble Lord, Lord Brabazon, has already said, save only that I hope that one day some new AP Herbert will arise to find fresh anomalies in our law, and so keep the next generation of students amused.