Police, Crime, Sentencing and Courts Bill

Lord Davies of Stamford Excerpts

Report stage
Wednesday 12th January 2022 Lords Chamber

To come back to this amendment, I hope that the House is assured of the Government’s position on the matter, and I urge the noble Lord to withdraw the amendment.

[Lord Davies of Stamford (Lab)]

My Lords, I have listened to the debate this afternoon with great pleasure, and I must say with growing agreement with what was said—until I heard the contribution of the noble Lord, Lord Faulks, who said that sentencing should be a matter for the Government of the day. That is a very dangerous approach, because it means that sentencing becomes a reflection of the political pressures on the Government of the day. Somebody used the term “auction”. You would get competition between people who were seeking votes from the public in projecting themselves as being tough on crime, and the resulting sentencing guidelines—

[Baroness Scott of Bybrook (Con)]

I am sorry, but the Minister had already sat down. We can only take a question if it is very short.

Assisted Dying Bill [HL]

Lord Davies of Stamford Excerpts

2nd reading
Friday 22nd October 2021 Lords Chamber

[Lord Davies of Stamford (Lab)]

My Lords, I want to refer to the case of my mother-in-law, a person of whom I was extremely fond, but I must make it quite clear that she was not a campaigner for law reform in this area. Indeed, she was not a campaigner at all; by instinct she kept away from public controversy. If I draw any conclusions from my memory of her experiences, I am responsible for those conclusions, not anybody else.

My mother-in-law suffered terrible pain in the last months of her life and her doctor suggested that she should enter a hospice, which she did. I well remember the occasion when she arrived at the hospice. Within 24 hours she had received various injections—I assume of opiates of different kinds—which put her into a deep coma from which she never recovered. She died two weeks later. I was at the time, and I am still, appalled that in this country we use the law to try to force people to go for a long and lingering death when a much more rational, rapid and pain-free option is available. I deeply hope that we will give a Second Reading to this important Bill.

If I may say so, I also hope that we take a decision. The country is waiting for the House of Lords to take a decision on this matter. I think that in this country there is considerable faith in and respect for our legislative procedures, but I do not know how people would respond if we just postponed this decision and left the matter for another day, perhaps in 10 years’ time when we have a whole new series of debates, inquiries and so forth. That seems a cop-out and as a legislature we should not go for cop-outs if we can possibly avoid them. I fear that if we did that, we would bitterly disappoint a lot of people—probably thousands—who have a condition that could be fatal or a statistical chance of developing such a condition and who, in those circumstances, see a Bill of this kind as the only exit from a terrible fate that lies before them. I congratulate all those who have taken part in producing the Bill and I hope that it goes forward.

European Union Referendum (Date of Referendum etc.) Regulations 2016

Lord Davies of Stamford Excerpts

Wednesday 2nd March 2016 Lords Chamber

[Lord Davies of Stamford (Lab)]

My Lords, it is a great pleasure to follow the noble Earl. We sit together on the same Sub-Committee, and I endorse everything he said about financial regulation.

It has been a most extraordinary debate. We have had three very original, very lucid, very remarkable speeches from a personal point of view on the subject: one by the noble Lord, Lord Jopling; another by the noble Lord, Lord Russell of Liverpool; and the third by the noble Lord, Lord Cormack. I found those particularly inspiring. However, we also had a complete abdication in the debate from those advocating our leaving the European Union. I always believed that the normal rule for rational human discourse was that, if someone had a proposal to make a change, it was for him to argue the case to explain why the change would represent an improvement and how the benefits could be secured. We have heard absolutely none of that.

Let me get across some of the major activities that we have in common with our partners in the European Union, which we would no longer have if we left. We played a major part in the political co-operation in common foreign policy activity, which has been very useful for world peace. The European Union has been part of the quartet in the Middle East: it played a major role with the United States in achieving accommodation with Iran, which is very important, and in achieving the Minsk agreement with Mr Putin. I put this question to the eurosceptics, such as the noble Lord, Lord Lamont: why is it that we would be better off in performing that role—whether for world peace, or in our own interests—if we no longer sat in the Council of Ministers and were no longer a party to the discussion or to the processes of policy formation and delivery? Similarly, we in the European Union have done a great deal to help the development of emerging countries, both through trade agreements—Cotonou and post-Cotonou—and through the largest aid programme in the world. If the eurosceptics win this referendum, is it their intention that we pull out of that activity altogether? Presumably we cannot be part of a trade agreement, Cotonou or otherwise, if we are no longer part of the European Union. Would we cease to support the projects that are now being supported there, or would we perhaps decide, all on our own, to replicate the structures of project evaluation and supervision and thereby spend a lot of money, which could have been spent for the benefit of the countries we are trying to help? Is that a sensible thing to do—is that in the national interest?

On the environment, we had great success in the Paris conference, and the EU has been shown to be a major force in this field. If the eurosceptics win the referendum, do they intend to abandon our present policy on the environment altogether? I know that the noble Lord, Lord Lawson, wants to do that. If they do not want to abandon it, what sort of role do they see for our country? The people in this country are entitled to ask that question. If we are still going to support, from outside, the European Union and its policy initiatives in this field, why would it be an advantage to us to do it from outside? Why would it be an advantage not to be in the Council of Ministers, nor to be discussing these matters with the Commission and developing a coherent and common position?

I turn to the very important issue of the Justice and Home Affairs Council, Europol, the common arrest warrant and so on, which are matters of life and death. We know that the eurosceptics hate those measures. They fought like cats against them, in this House and the other place, and never wanted to accept them in the first place. What are they going to do? That is one area where the man who I think wishes to be leader of the out campaign, Boris Johnson, has actually given an answer, in yesterday’s Telegraph. He says that he is going to form a series of bilateral intergovernmental agreements. The idea of having 28 separate bilateral agreements is obviously absurd; I will not waste the time of the House by explaining why, because everyone can see that. It shows that Mr Johnson and his colleagues have not even begun to think this through. What is required is an integrated structure of communication and response systems of information and intelligence- gathering and distribution. It has to be a permanent or long-term structure in which people are trained and which can be exercised if it is going to be of any use when a crisis suddenly arises. In this field, I do not think that there is any understanding of the national interest among the eurosceptic spokesmen, either in this debate or by Mr Johnson in his famous article yesterday.

Let me turn to the economic issues, which noble Lords have rightly discussed, although in an extraordinary way. The noble Lord, Lord Lawson, actually said earlier that we can get the same benefits through the World Trade Organisation that we can get through the 45—he did not say that, but I know that there are 45—trade agreements that the EU has with other markets around the world. That is completely wrong; it is simply factually incorrect. I do not know how such a distinguished man, who has been a Chancellor of the Exchequer, can make such an elementary error. The WTO is not a substitute for those agreements and, if it was, it would probably take seven or eight years to negotiate such agreements. Again, there was a sense of complete unreality on the part of the eurosceptic spokesmen.

The eurosceptics owe us an answer on our relationship with the single market—which we all know is so important for the employment of millions of people—future investment flows and the location of business decisions. Are they going for the Swiss model, or the Norwegian model, or some model of their imagination? What effort have they made to see how viable that model might be? They owe it to the British people not to lead them into the dark or on to treacherous ground and abandon them when it is too late and the decision has been taken. We need to know now what the alternative plan is and we have not had a single whisper about what it might consist of.

Obviously, this is a very important matter; anybody who thought that it was not should at least pay a little attention to the fact that all our major trade partners, in the EU and outside it—in fact, all the major decision-takers in the world, with one important exception—have urged us publicly to stay in the European Union and pointed out the damage we would do to ourselves and to others if we left. That is true of Shinzo Abe, Xi Jinping, Narendra Modi, Barack Obama and Christine Lagarde. Are we simply going to ignore all that advice? If we are going to take this matter seriously, we need to have a serious debate in which the British public can focus on factual, material and genuine arguments and not on just a lot of emotionalism. In this debate the noble Lord, Lord Lawson, talked about colonialism, but that is just an emotive term, bearing no relationship whatever to reality. Quite extraordinary things have been said. Every day the Daily Mail publishes pictures of refugees, asylum seekers or foreigners generally, making them look as sinister as possible, and it will of course go on doing that until June. However, that is not the way to take a very important decision, which is going to affect the lives of ourselves and many future generations in this country.

European Union Referendum Bill

Lord Davies of Stamford Excerpts

Monday 2nd November 2015 Lords Chamber

[Lord Grocott]

It would be fine if that happened, but the figures are worth reflecting on. I find it difficult to imagine that the contribution to British agriculture would be less than it is currently via the common agricultural policy. I took the precaution of getting an up-to-date figure—I assume that responses from Ministers are accurate on these matters. I asked the Government two or three weeks ago what the current cost of the common agricultural policy was and the answer from the noble Lord, Lord Gardiner of Kimble, was €55 billion for 2015. He went on to say that the CAP accounts for 40% of the EU budget.

Noble Lords who regularly contribute to economic debates—which I do not—will be able to do these figures in their heads. However, €55 billion is the total cost of the CAP. That represents 40% of the EU budget. The UK contribution to the EU budget as a whole is €16 billion. Let us work that out. Off the top of my head, I think the British contribution to the cost of the common agricultural policy is 2 billion or 3 billion euros. I repeat that I have doubts about the use of the word “objective” in this kind of discussion, but it seems that anyone considering this objectively would have to consider that a very substantial contribution to agriculture—that vital industry in this country—would have to come from the British Exchequer if there were less support coming via our contributions to the CAP.

[Lord Davies of Stamford (Lab)]

My noble friend asked rhetorically whether there was any reason to suppose that, if we came out of the EU, our level of support to our agricultural sector as a separate country would be any less than it currently is within the EU. I put it to him that there is one obvious ground on which one might expect that our support to agriculture would be much less if we were outside the EU. The political weighting of the agricultural sector’s interest is markedly less in this country than on the continent, in the Republic of Ireland or in other EU member states. If the noble Lord goes to Ireland, Germany, the Netherlands or France—let alone Poland or Romania—he will be able to satisfy himself of that. We have one of the very lowest proportions of population—which of course means voters—who are directly dependent on the agricultural sector: about 1%. That means that the political balance is very different here when agricultural matters are discussed from how it is on the continent, where there is much more political weight behind agriculture. Inevitably that will be reflected in the amount of money coming through to agriculture and in the willingness of the Treasury to continue to support agriculture at the current level, which is based on the aggregate weight of agricultural interests in the European Union as a whole and not on their weight within this country in terms of domestic and political debate.

[Lord Grocott]

My noble friend makes my point very effectively: these are matters of debate. There is no objective analysis of the cost of the CAP and the likely expenditure in the UK that can be resolved by putting statistics into a computer. He makes a perfectly valid argument from his own perspective.

I am tempted to go down memory lane. Believe it or not—this may come as some surprise to the House—40 years ago, in 1975, I would occasionally go to meetings of the Agriculture Ministers of the European Union, in my lowly capacity as a Parliamentary Private Secretary. I have to say that the conclusions reached by the Council of Ministers at the time were not always in Britain’s interests.

However, let us not go down that road, because I am not disagreeing with my noble friend. These are not matters of fact but matters of judgment. Part of the judgment might be whether—

--- Later in debate ---

[Baroness Ludford]

I am grateful to the noble Lord for drawing a 15 year-old report to my attention. Unfortunately, I am not familiar with the International Trade Commission or its report. If he would care to send it to me, I would be more than pleased to read it. I think my point about living in the real world has been well made. The idea of the United States wanting us to join NAFTA is new to me.

In conclusion, it is essential to have these reports on withdrawal. In anticipating the ones on alternatives or the future relationship, I think they will become points of reference. We campaigners on both sides will try to make our point, but we have to give confidence to citizens and a point of reference to check our claims. These reports are essential.

[Lord Davies of Stamford]

My Lords—

[Lord Flight]

My Lords—

[The Earl of Courtown (Con)]

Could we hear from the noble Lord, Lord Davies of Stamford? I know that he has been trying to get up for some time.

[Lord Davies of Stamford]

My Lords, I should like to comment briefly on two contributions this evening that should not be left unanswered or uncommented on. One was a contribution from the noble Lord, Lord Higgins, which I shall come to in a moment. The other was the recent remarks of the noble Lord, Lord Forsyth. He said that it was obviously absurd that the European Union should fix the level of retail deposit insurance. This is an important matter for financial stability. I put it to the noble Lord that there are extremely good reasons why there should not be a free for all in retail deposit insurance, and he should think about them carefully.

There are two such reasons. One is that if there is a free for all, there is a great temptation for individual states to compete by increasing the level of their guarantee, thereby attracting deposits from neighbouring states—or, as they would see it, competitive states. That is extremely dangerous because it leads to transferring risk from the banking system to a sovereign Government and when taken beyond a certain point, as happened dramatically in the case of Ireland just a few years ago, can produce a crisis of confidence in the credit rating of the sovereign state itself. That would be very foolish.

The other thing that it does is to introduce a moral hazard, when depositors find that in certain countries they face the chance of getting such a large level of guarantee on their deposit from the local sovereign state that they do not have to pay any attention at all to whom they are banking or placing their deposits with. That goes for sophisticated investors who are depositing hundreds of thousands, or millions, of dollars, pounds or euros. That sort of moral hazard is extremely dangerous and leads to lazy banking, and to banks being able to get away without satisfying their depositors that they are solidly and solvently managed—an extremely damaging thing for the stability of the financial system. I give way to the noble Lord, Lord Forsyth, who I hope will take my comments seriously because they are genuinely important.

[Lord Forsyth of Drumlean]

I do not take the noble Lord’s comments at all seriously. We are talking here about a guarantee of £75,000, which has nothing to do with people who are depositing millions of dollars around the world. Where I think he is right is that I can see the case for having a guarantee in a single currency zone. My point is that we are not in the euro, yet we are being told what to do with sterling.

[Lord Davies of Stamford]

My point is that if we had a free-for-all, it would start off at £75,000, which is roughly the equivalent of €100,000—that is why we have that figure. Some member state might well then be tempted to say “We will offer €150,000”, then somebody else would come back and say, “We will offer €180,000”. Then another would offer €250,000. There becomes a Dutch auction in these matters, which is very much in no one’s interest. This is an example of where the collective interest is much better served if individual member states do not adopt their own rules on this matter. I leave the point there. Although it is very important, I am prepared to continue with it in another context.

[Lord Hamilton of Epsom]

On the same principle, would the noble Lord, Lord Davies, advocate that we all had the same corporation tax rate?

[Lord Davies of Stamford]

There could be economic advantages in doing that; equally, there are other advantages in having tax competition. I am rather in favour of the latter, as tax competition produces downward pressure on the level of taxes. A free-for-all in retail deposit insurance produces upward pressure on the guarantee and therefore on the liability of the member states extending it. The two things are diametrically opposed. I know that there are arguments in favour of unifying corporation tax rates but they do not persuade me. I do not imagine that they persuade the noble Lord either.

I come to the remarks of the noble Lord, Lord Higgins, who always speaks with great thought and wisdom on these matters, although I do not usually agree with him on European issues. He said something very depressing: he did not think that anybody—or very few people—would bother to read any reports produced on this matter and that people would take their decisions otherwise, perhaps by looking at the press. I have no illusions about this. I am very depressed and worried about this campaign, which could turn extremely unpleasant. I anticipate that a number of the large-selling newspapers, particularly the Sun and the Daily Mail—and the Daily Express, which does not sell very many—will adopt a very demagogic and emotive campaign, which will be rather subtle and indirect. It will use dog-whistle techniques but will really be all about foreigners, refugees and barbarians at the gate. I fear that people will be influenced by that sort of thing but I hope that it will not be a dominant number, or certainly not a majority.

We have a sophisticated democracy and an educated public, so we should not be too depressed or cynical about our fellow citizens. There must be literally millions of people in this country who will face the decision they will be asked to make in this referendum very conscious of its importance for the future of their country, their families and their communities. They will desperately want to have some clear advice and information from somewhere. If they go on to the internet they will have 5 million references and be completely paralysed, as we all are when we look up a matter which is the subject of substantial and wide-ranging controversy on the internet. It is utterly reasonable that they have a small, defined number of authoritative sources, some of which must be identified with the two campaigns but some of which should be identified with the Government.

We seem to be missing two essential points here. One is that the Government and Parliament are the servants of the public, not the other way round. It is our responsibility, and the Government’s responsibility, to provide such a source of material and information. Whether or not the elector chooses to bother with it at all would of course be his or her decision. The elector is sovereign but under no circumstances should we not fulfil our duty, which is to provide the opportunity for this important element in the decision that individual electors will need to take.

[Lord Marlesford (Con)]

Does it not follow from what the noble Lord is saying that one way of reducing undue influence would be for both sides of the campaign to agree on a simple exhortation: make up your own mind?

[Lord Davies of Stamford]

I come now to my second point, which relates to what was said by the noble Lord, Lord Wigley. A citizen of this country is entitled to think that the politicians who he or she pays for will do an honest job in a case like this, by not merely providing an opportunity for a referendum to take place but providing what we can by way of elements to enable that individual elector to take a decision.

I want to re-emphasise the point made by the noble Lord, Lord Wigley. Any Government who are half competent—or even a quarter competent—will, in circumstances like this, produce their own study of the cases for joining or leaving, along with the costs of leaving or not leaving and so forth. Any Government who were 10% competent would be going through those exercises and, as he said, given that those studies will have been undertaken, they must not be kept under lock and key in Whitehall. The public in a democracy have a right to know to what conclusions the Government have come in their own studies. They have a right to have disclosed to them material information of that kind, which may be available in Whitehall or elsewhere in the interstices of government. On those two counts, it is absolutely essential that we do what we can to ensure that such reports are identified, undertaken and, above all, made available to the British public.

[Lord Flight]

I wrote to the Treasury about the reduction in the guarantee to £75,000 to have the reason confirmed. I have had a letter back from the Treasury saying that it is doing its best to negotiate that it cannot go any lower than £75,000, so I wish it luck.

I very much agree with my noble friend Lord Higgins but, to be candid, for even wider reasons the exercise is unlikely to be of huge use. First, if you are to have papers about staying in, you have got to have papers about coming out. Secondly, and fundamentally, the issues that are so important are matters of judgment. We do not yet know what the agricultural arrangements may be or what trade agreements there may be with America and India, and so forth. You could take an educated guess but a factual paper must not have educated guesses in it. A whole lot of historic dead data about the EU one way or the other will, candidly, not excite anyone in the slightest, but it is not the job of the Government to publish opinions. It is the job of the campaigning entities to express those expectations and opinions.

[Lord Davies of Stamford]

The whole point is that the individual campaigns will not have access to the material which the Government will have produced. It is essential that the public have access to that; if they cannot have access to it through the campaigns, the campaigns themselves will not know what material the Government have on the subject.

[Lord Flight]

Most of the factual information is already there in various forms, so it would not have to be reprinted by a government department. The crucial point is that the campaigners will set out their expectations and judgment as to what will happen one way or the other. As the noble Lord pointed out, leadership in this situation one way or tother is likely to win the referendum campaign.

The proposals seemed to start by suggesting that there should be a whole set of papers on either the advantages of staying in or the problems and risks of staying out. If we ended up with a fair and balanced covering of both sides, I think it would be pretty much a waste of time.

European Union Referendum Bill

Lord Davies of Stamford Excerpts

Wednesday 28th October 2015 Lords Chamber

[Lord Forsyth of Drumlean]

I shall tell the Committee a story. I spent two, I think, years of my life going to European Social Affairs Council meetings in order to prevent the European Union and the Commission abusing the rules and defining the working time directive as a health and safety measure rather than an economic measure in order to get it through by qualified majority and undermine our veto. I sat through endless meetings where people read out prose. I knew that in the end we would have to go to the European Court and argue our case and that it would find against us because it is under an obligation to preserve the acquis. The result was that the working time directive was imposed upon us, even though we had joined on the basis that those matters would be decided by unanimity.

At a meeting of Ministers one night after one of those long and tedious sessions, we were having a few drinks, and I decided to take it upon myself to lecture them on the benefits of supply-side reforms. I pointed out that if they went on like this, adding to the costs of labour and to the disadvantage that European countries would have competing in the global economy, the results would be huge levels of youth unemployment and a slowing down of growth in the European Union. I think it was the Dutch Minister—maybe it was one of the others—who turned to me and said, “Ah, but you do not realise. We understand all of this but what you do not realise is that we have proportional representation and have already given people these rights. It is impossible for us to remove them. We want a level playing field, and we do not want you to have a competitive advantage over us”.

The noble Baroness asked whether I think we will get these changes. I hope and pray that the European Union makes these changes for the sake of the large numbers of unemployed young people—50% in the southern European states—and for the sake of what we see in Europe, which is a country that is failing to grow and meet the aspirations of its people. What I see at present—and the Prime Minister has to contend with this—is that we are not leaving the European Union; the European Union is leaving us. Monetary union means, as the noble Lord said—he talked about the inevitable process of moving closer together, except he used different language as he sees the way forward as further integration because of the consequences of the single currency, which the same people who are advocating—

[Lord Davies of Stamford (Lab)]

My Lords—

[Lord Forsyth of Drumlean]

I shall give way in a second. The same people who are telling us now that we need to remain members of the European Union regardless of the terms are the same people who told us that, if we did not join the euro, Frankfurt would become the main centre for financial services in Europe and we would fall behind and become irrelevant. Thank goodness we did not join the euro; otherwise, we would be in the same predicament as France, Spain and Italy and the others. I give way to my former colleague.

[Lord Davies of Stamford]

I am most grateful to the noble Lord. I am perfectly happy to say my noble friend because he is that outside the Chamber. If the Prime Minister—maybe likely, maybe not—got the concessions that the noble Lord has just set out, would he then vote for us to remain part of the European Union?

[Lord Forsyth of Drumlean]

I might want to add to the list. Broadly speaking, if we get our country back, are in control of our borders and are able to decide on the regulations that govern business, not only would I vote in support of our continued membership of the European Union but I would say that the European Union has been saved and that the Prime Minister was a magician.

It is not what I think that matters. This is not what we are discussing; we are discussing giving the British people an opportunity to decide for themselves. It is a great disappointment to me that the noble Lord who used to be on our Benches, and who I know is a great democrat, really does not want the British people to have that opportunity and that is a great sadness. I give way to my other Scottish friend.

--- Later in debate ---

[Baroness Suttie (LD)]

My Lords, I agree with the comments of the noble Lord, Lord Foulkes, on the Scottish experience in September last year. At a time when there are genuine concerns about voter apathy and lower voter turnout, the Scottish experience showed that you can engage and enthuse young people to believe that their vote really will make a difference. All the 16 and 17 year-olds to whom I have spoken were extremely positive about being able to vote in that referendum.

With this high turnout and higher levels of voter engagement achieved, it would be a backward step politically, not least in the Scottish context, not to include the same 16 and 17 year-olds in the referendum on the EU. If the referendum is held in the summer of next year, we could potentially face a situation in which a young Scot, who had just turned 16 in August 2014, for example, and so was able to vote in the Scottish referendum, would find themselves unable to vote on the future membership of the EU next summer. Can the Minister confirm whether the Government have given due consideration to the potential political impact, as well as the factual one, of this group of young Scots? Have they assessed the numbers involved in Scotland in this situation?

[Lord Davies of Stamford]

My Lords, there is no way, either empirically or by reference to theory, in which one can reach what might be an agreed doctrine on the right age at which people should begin to enter into a parliamentary franchise. We could debate the matter all night as to whether it should be 16, 17, 18 or some other age, or why it should be one particular and not another. We would never come to a definitive conclusion.

If we debated what have to be the essential qualities of a law, and especially the essential qualities of a constitutional law or rule, we would come to a definitive conclusion. By definition a constitutional law or rule must have a very wide degree of support. It must have legitimacy. That is the essence of an effective constitution. You cannot have legitimacy if you have a law that is contradictory and incoherent. At present we have a law or set of rules that are utterly incoherent.

It is not possible to find a respectable argument to say to a young Scot, in exactly the sort of case cited in the noble Baroness’s intervention a moment ago, that they had the right to vote in the Scottish referendum on independence and the break-up of the United Kingdom but no right to vote in the referendum on the future of our membership of the European Union. I have yet to hear a respectable argument that could be delivered to such a young person. If somebody on either side of the House has one I would be delighted to give way immediately so that we could hear what that respectable argument is. I simply do not think that it exists.

It is also not a respectable argument to say to a young English person, “The Scots were able to vote in an important referendum but you are not capable of exercising the same degree of choice as a Scottish person of the same age”. That would be a hideous thing to say to anybody. Of course this applies equally in Wales. The noble Lord, Lord Wigley, gave us a good example. Young people in Wales are now being told that they have a right to vote on whether the Welsh Government should have tax-raising powers, but not on whether Wales and the United Kingdom should remain part of the European Union. On what possible basis can one make that distinction? What possible respectable argument could one use in saying that to such a young person, who would quite rightly be challenging that kind of judgment?

At the moment we have complete incoherence, which we should not have because it is deeply damaging to the legitimacy of our constitution. The logic of what I am saying means that we should also change the voting age for Westminster general elections. One thing that we absolutely should not do is keep the present franchise for the referendum on the European Union, cutting out 16 to 18 year-olds throughout the United Kingdom, including Scotland, and then a year or two later change the voting age for Westminster elections. In other words, we should not deliberately close the door on a referendum that, as had rightly been said, affects people for the next 40 or 50 years—this will not affect us in the House in this time, but it will affect those young people—and then say that these people can vote now in Westminster elections after all: we have waited a couple of years but have cut you out of the referendum, which is even more strategically important for the country. That would be an indefensible thing to do.

[Lord Forsyth of Drumlean]

I will have a go at a respectable argument. Is the answer to the noble Lord’s point about the mess that we are in that we should not proceed with constitutional or franchise reform on a piecemeal basis?

On the point about the difference between a 16 year-old north of the border and south of it, I am sure that the noble Lord has been to a place called Gretna Green. That exists because 16 year-olds south of the border are not allowed to marry without parental consent, whereas in Scotland that consent is not needed. There is a precedent. It is not a particularly good one, but it illustrates what happens when you do not look at the age of majority in a coherent, cross-border manner.

[Lord Davies of Stamford]

Not for the first time in these European debates, the noble Lord and I, although associated with very different camps, agree on something. We agree on the word “coherence”—a word that the noble Lord used and which I used myself. I totally agree with what he said. One should not legislate in a piecemeal fashion, particularly for constitutional legislation. One should look at the whole. That is precisely why my party proposes a constitutional convention to ensure that we do not go in for piecemeal legislation on the constitution. That is another debate for another day.

[Baroness Royall of Blaisdon]

I point out to the noble Lord, Lord Forsyth, that it was his Government who let the genie out of the bottle precisely by enabling Scotland to give 16 and 17 year-olds the vote. I am delighted, but once the genie is out of the bottle I am afraid that you cannot put it back in.

[Lord Davies of Stamford]

I fear that that is the case. The noble Lord and I agree on coherence. The only way to restore coherence now is by the way I have just suggested. The pragmatics—the actual experience of this—are that 16 and 17 year-olds make very mature choices. That has been the lesson of the Scottish referendum. Giving them the vote has encouraged and increased participation rates, and increased intellectual interest in politics and in public life in general among young people. All those things are very desirable. The pragmatics support the theory.

[Lord Forsyth of Drumlean]

I am most grateful to the noble Lord. It was not our Government who let the genie out of the bottle, but the Scottish nationalists in Scotland. It was this House and the other House that gave the Scottish nationalist Government the power to make piecemeal changes to the franchise. I warned against it at the time. I warned that we would end up with people making piecemeal changes to the franchise, which should be looked at in the context of the overall age of majority.

I am not sure that I do agree with the noble Lord. We agree that it is a mess but the way to sort it out is to look at it across the board on the basis of the age of majority, not to add to the mess by making yet one more piecemeal change regarding voting in this particular referendum. I was responding to his point on what you say to a 16 year-old about how the law is different on different sides of the border. Gretna Green is a long-standing example.

[Lord Davies of Stamford]

I had not quite finished my remarks. I will do the noble Lord the courtesy of replying to his intervention. We both agree on the need for coherence. I totally agree that we do not want to make another piecemeal change, which is why I suggest that we make a universal change. In my view the Government should take the opportunity to say that they will legislate as soon as possible and bring forward legislation that will enable us to reduce the age of the franchise for Westminster elections—indeed, for all elections in this country.

[Lord Blencathra]

My Lords, I oppose these amendments. I appreciate the Government’s position that they had to select an electoral register that would be appropriate for this referendum. No one register is perfect. Clearly the one used for the EU elections is not appropriate, nor is the one for local government elections. Therefore, I accept that the one used for the last general election is probably as good as any because it is based on the age of majority.

I believe that, whatever amendments we make, we should stick with the age of 18. We have to pick an age somewhere and there is nothing magical about reducing it to 16. One of the arguments advanced is that this referendum will affect that generation for 40 years. If it affects 16 and 17 year-olds for the next 40 or 50 years, then it affects 15 year-olds, 14 year-olds and 13 year-olds, many of whom are equally switched on and with it and know what is going on. Yet there is no suggestion that it should go down to that age. If the argument is based on the referendum affecting millions of young people, there is no logical reason to stick at the age of 16.

The other argument used is Scotland. The argument that we have heard tonight is that there are so many enthusiastic young Scots. Scotland is recommended because it made young people enthusiastic for voting and for change and that we should therefore follow the Scottish example. I profoundly disagree. Just because Scotland did it does not make it wise or right. When I was aged 16 in Scotland in 1969 I was heavily involved in politics. I was enthusiastic, keen and reasonably well informed. I had absolute certainty, not just on how this country should be run. I even had suggestions on how Chairman Mao should amend some of his little red book. I knew what Mr Brezhnev should do to make the Soviet Union better. I had a wide range of enthusiastic views, but thank goodness I was not in a position then for the Government to be inflicted with my vote or for my childish enthusiasms to be put into law or enacted.

There are very few areas where we treat 16 as the age of majority. That is quite telling. Indeed, we treat 16 and 17 year-olds as children with no real say of their own in a large number of areas. What are those areas? Sixteen year-olds can get married, but only with their parents’ consent, although Scotland is different. While 16 year-olds can marry, they cannot buy a kitchen knife until they are aged 18. I know that for a fact because I was the Minister who put that law through, for some reason or another. Sixteen year-olds can join the Army, but only with their parents’ consent. They cannot go into combat until they are aged 18.

So what can they not do until they aged 18? They cannot buy tobacco or alcohol. They cannot gamble. They are too young to be sentenced to a young offender institution because the law regards them as children. They cannot legally watch a film with an 18 classification. That is a telling point. If our law considers them too young to watch a violent or pornographic film, how can we say that they are capable of making a decision on major political issues? They cannot serve on a jury. If they are regarded as incapable of exercising judgment there, why are they able to exercise judgment on national political matters?

--- Later in debate ---

[Baroness Smith of Newnham]

My Lords, like the noble Baroness, Lady Royall, I have also put my name to the amendment from the noble Lord, Lord Hannay. I fundamentally believe it is right that EU nationals who are living and working in the UK and who have been here for a significant time, paying their taxes, ought to be enfranchised, irrespective of how they might vote. If I were speaking from behind a Rawlsian veil of ignorance, I would still say that they should have a right to vote. They have come here thanks to EU free movement rights, just as millions of British taxpayers have moved to other parts of the European Union—they may have retired there or be working there thanks to the free movement of people and 40 years of membership of the European Union. They will all vote in different ways. This is not a free-for-all to say that any EU national who just happens to have pitched up here should be entitled to vote. However, people who have committed to being here but have not sought British citizenship, precisely because, as the noble Lord, Lord Liddle, said, they have understood that they have rights as EU citizens, should be enfranchised.

It should not be a free-for-all. I do not quite believe that the amendment from the noble Lord, Lord Liddle, is the right thing to do. However, enfranchising people who have a great stake in the future of Britain in Europe is important, whether they are British nationals or not. Commonwealth citizens resident in the UK will be enfranchised, so it seems invidious that EU nationals are not. This is not about skewing the franchise but about giving people with a genuine interest the opportunity to have a say.

[Lord Davies of Stamford]

My Lords, I think that it is completely improper for anyone, anywhere, at any time, to make an assumption about how a fellow citizen or group of fellow citizens will cast their votes. It is particularly improper for us to do it here, where we are legislating on the franchise for a very important vote, and discussing the general principles on which the franchise should be based for referenda and elections in this country. So I shall not go down that road at all.

I take my position on the basis of first principles. This involves the same first principle from which I argued on the last group of amendments—the central principle of coherence. At present the regime is utterly incoherent. We face the prospect of a referendum which, if we make no changes in the course of these debates in Parliament, will result in citizens of three members of the European Union present in this country having the vote, and not the rest. That is a thoroughly anomalous position. One is the Republic of Ireland, which is said to be a special case because of our historical relationship. The other two are Malta and Cyprus. They are said to be a special case because they are members of the Commonwealth.

What is so special about the Commonwealth? The Commonwealth is a group of countries with which we have had a happy historical relationship and a good relationship at present; it is something of a club. But surely we have at least that degree of close intimate relations and common interest—and probably far more in the way of common interest and connections—with the other members of the European Union. It seems utterly anomalous not to extend the vote to citizens of other EU countries who happen to be resident in this country.

Perhaps I could forestall the noble Lord, Lord Green, intervening to say that other EU countries do not give our citizens resident there the vote in their referenda, by saying that—apart from the issue of the different types of referendum we have already touched on—members of the Commonwealth do not do that either. I cannot go and vote in India or Australia if I become a resident of one of those two countries—unless, of course, I take nationality of one of them, and that is a different matter altogether. There is a real anomaly here.

I gather that Fiji has just rejoined the Commonwealth. Are we seriously saying that we have closer connections with Fiji than we have with, say, France, or that we should make more favourable arrangements for Fiji’s citizens to take part in British elections than we should for people from France? What an extraordinary notion.

[Lord Green of Deddington]

The noble Lord will be aware that I have an amendment in the next group that would deal with his problem.

[Lord Davies of Stamford]

If it deals with my problem in a satisfactory way I may support it. I look forward to the noble Lord introducing it in due course.

Mozambique is also a member of the Commonwealth. Let me take that as an example. Do we have especially close relationships with the people and the state of Mozambique? Can it be said that we share the fate of Mozambique to a greater extent than that of most other countries? Do we have common interests that need to be debated and considered together? Hardly so. Is Mozambique more important to this country than, say, the Netherlands, Spain, Denmark or other friendly countries very close to our shores? It is an extraordinary insult to those countries to suggest that that might be so.

The Spanish ambassador told me the other day that there are 15 million visits by British citizens to Spain every year. Some people go more than once, of course, but that is still an extraordinary number. It shows the degree of human interchange—and of course, behind that there is a great deal of economic interchange—that we have with our fellow members of the EU. We all face similar problems and we will all be impacted by a British withdrawal from the EU, if that takes place. So there is an immense logic in extending the franchise on this occasion to EU citizens resident here. There is no logic whatever in extending that franchise to Commonwealth citizens but not to EU citizens. I repeat that in terms of reciprocity, the position is exactly the same, so that argument cannot be used. Again, we need some clear coherence here—some way of justifying the choices we make objectively. Otherwise we will lose legitimacy, and I totally agree with the noble Lord, Lord Hamilton, that we need that.

[Lord Blencathra]

It may be that 15 million people go to Spain every year but none of them gets the right to vote in its elections.

I am probably more naive than my noble friend Lord Hamilton, but maybe not quite simple. I am not suggesting this is a deliberate ploy to stack the electoral register to help the stay-in, BSE campaign. That may not be the intention but there is enormous cynicism out there in the country about politics, politicians and a fear that we will somehow, as politicians, stack things so that we stay in. That is why there is concern about whether Europe will spend money on the campaign and whether Ministers and others will use their position to campaign for an in vote?

They may not, and there are purdah rules to stop it, but the view in the country is a rather cynical one that politicians cannot be trusted to have a proper, fair electoral referendum. If there is a majority of 10 million either way it will not matter, but if the majority to stay in or to leave is 1 million or 1.5 million, and 1.5 million EU citizens have voted, it will not take much to see that the British public will say it was rigged, they “woz robbed”, and the whole election result was unfair.

I repeat, as many others have said, that no other EU country permits non-nationals to vote. The noble Lord, Lord Hannay, who is expert in these matters, tried to draw a distinction between this referendum, which could result in Britain leaving, and other national referenda on less important issues. I beg to differ on a couple of occasions. When the Danes voted against Maastricht it was a nuclear bomb under the EU at that point. The Danes were told to think again and keep voting until they came up with the result that the EU wanted. That is me being cynical on this occasion. If Denmark had not voted again—

[Lord Davies of Stamford]

Will the noble Lord address the point that I made in my intervention a moment ago? Although it is true, as he says, that no other EU country grants the right to British citizens who are resident there to vote, it is also true of Commonwealth countries. No Commonwealth country grants British citizens who are resident in their country the right to vote, so why does he justify the anomaly that we are extending under the regime that he is defending—the right to vote in this referendum to Commonwealth citizens but not to citizens of fellow EU member states?

--- Later in debate ---

[Lord Green of Deddington]

Well, what the noble and learned Lord said is that it should be phased out. His view was clearly, as in the bit that I quoted, that those who are not British citizens should not continue to have the vote.

Of the three reasons, the first is the importance of the decision for Britain’s long-term future—that is obvious. Secondly, there is the issue of reciprocity, since no EU Government permits British citizens to vote in their general elections, let alone in a referendum, and no Commonwealth country, except New Zealand, permits foreign citizens to vote in referenda. Thirdly, and lastly, there is the need for clarity. This proposal would remove the anomaly that citizens in Malta and Cyprus, as has been mentioned, can vote not as EU citizens but as Commonwealth citizens. With this amendment, they would not vote as either.

There is a further anomaly in that Commonwealth citizens are able to vote very shortly after they arrive in Britain. For example, a Commonwealth student could be on the electoral register in a matter of weeks. There are no formal checks on his or her nationality, or even on his or her right to be in Britain. An electoral registration officer has the right to ask further questions if he believes that that is justified and he needs it before making a determination. However, in practice, it very seldom happens because of the risk of appearing to discriminate. So that of itself amounts to a significant loophole, which is surely unacceptable in a matter of such importance. I should mention in passing that Gibraltarians are not affected because they are British citizens under the British Nationality Act and therefore will get the vote in any case.

There has been some discussion as to whether the various groups proposed for the vote are likely to affect the outcome. As far as I know, there has not been any effective polling to tell us how these people might vote, or how many of them would do so. I suggest that that is a further reason to have the franchise on a clear and defensible criterion.

I close by pointing to the need that is bound to arise for reconciliation. As noble Lords will have noticed this evening, there are certain differences between Members of this House, and of course there are very strong differences in the public. Sadly, one side in this argument will have to face a future for this country which is deeply unwelcome to it. That makes it even more important that arrangements for this historic referendum should be above reproach, as the Minister said, in respect of the question, which I think is now settled, of the franchise, which we are debating today and involves millions of voters, and in the use of government resources, which we will discuss later in this Bill.

As the Minister said, any suspicion that the franchise has been manipulated to achieve a particular result would be deeply harmful for many years to come, as the noble Lord, Lord Blencathra, also said. That is why we need a crystal-clear principle for this franchise, and I suggest it should be the following: only British citizens, of whatever origin—it is not a question of xenophobia or racism—should decide Britain’s future. I beg to move.

[Lord Davies of Stamford]

My Lords, I concede very happily that the noble Lord has introduced an amendment, the effect of which—

[Lord Kerr of Kinlochard]

My Lords—

[Lord Davies of Stamford]

It is normally the case that we switch sides in debates here. We use alternative sides, I think.

There is no doubt that the noble Lord’s amendment restores symmetry and what I called earlier on, in a different context, coherence. He invited me in advance, in the course of the previous debate, to agree to it and to support it. I could not possibly support it. I have no idea whether the noble Lord realises this—I hope he does not realise it because he did not mention it—but his amendment would have the most perniciously destructive effect on our relations with the Republic of Ireland. It would be a breach of the arrangements we have had in place with the Republic of Ireland since 1921, since the time of the treaty, and it would be an explicit breach of the Belfast agreement, which lays down that all citizens of Northern Ireland, who are British citizens, of course, and British subjects, can enjoy full civil rights whether they declare themselves to be Irish or British. This would have a devastating effect. If the noble Lord wants to restore symmetry and coherence, he needs to do what was suggested by the noble Lord, Lord Hannay, and turn the thing around, enfranchise EU citizens who are resident in this country and put them on the same footing as citizens of Commonwealth countries.

[Lord Green of Deddington]

In that case, will the noble Lord explain why British citizens are not able to vote in a referendum in Ireland?

--- Later in debate ---

[Lord Davies of Stamford]

My Lords—

[Lord Forsyth of Drumlean]

I will give way in a second but perhaps I may finish what I was saying. I would not have expected to have a say in whether the Irish should remain in the European Union. Indeed, if people like me had had a say and the vote had been narrow, I think that people would have been perfectly justified in arguing that this was a matter for the Irish people and not for citizens of other countries who happened to be resident in Ireland.

I very much look forward to the Minister’s reply because I thought that the noble Lord made a number of powerful points, not least—I could see the expressions on the faces of those on the Opposition Front Bench—in bringing to his support the very distinguished former law officer in the previous Labour Administration. We are not here to sort out the problems of the Commonwealth. I very much share my noble friend’s enthusiasm for the Commonwealth but that does not mean that members of the Commonwealth who are resident in this country should have a vote on matters that concern our internal affairs and our future as the United Kingdom.

It is very amusing to see this division of opinion between the former mandarins in the Foreign Office. I have to say to the noble Lord, Lord Kerr, that his arguments are, unusually, a little weak, whereas I felt that the noble Lord, Lord Green, made a powerful and persuasive case. I suspect that if most ordinary people in this country knew the position, they would find it deeply distressing and worrying. I give way to the noble Lord.

[Lord Davies of Stamford]

I think that the Committee will have enjoyed the spectacle of the three great Foreign Office mandarins disagreeing among themselves.

I have to say to the noble Lord that I was not stopped in mid-sentence. I had completed my last sentence and sat down, and, in consideration to the Committee at a late hour of the evening, I decided not to get up again. However, since the noble Lord insists, I repeat that the amendment of the noble Lord, Lord Green, would lead this country into a blatant breach of the Belfast agreement. That agreement laid down that all citizens of Northern Ireland had the same civil rights whether they called themselves Irish or British, or whether they were the subjects of one country or the other. The Belfast agreement did not make any provision for British subjects living in the 26 counties of the Republic of Ireland. Maybe it should have done but it did not. The fact is that proceeding with the noble Lord’s amendment would lead us to a breach of a major international agreement, with all the consequences that would flow from that.

[Lord Forsyth of Drumlean]

The noble Lord has not dealt with the fundamental point, which is that we do not have a vote in Irish referendums. I have an Irish son-in-law, and I will ask him, but I would be very surprised if people on either side of the border in Ireland lie awake at night worrying about whether or not they might have a vote on the decision that Britain has to take as to whether or not it wishes to remain part of the European Union. That is a pretty poor argument, given that we are concerned here with enabling the British people—British citizens—to decide the future of their country in a referendum in a way that is seen to be fair and equitable.

Divorce (Financial Provision) Bill [HL]

Lord Davies of Stamford Excerpts

Friday 21st November 2014 Lords Chamber

[Lord Davies of Stamford (Lab)]

The noble Lord said that one of the reasons why the Government would introduce the full setting aside of a prenuptial agreement would be “need”. If that is the case, would that not, first, have the potential to open up an area of great ambiguity and uncertainty because “need” would have to be defined very closely? Secondly, would there not be a real risk that “need” could be interpreted by a court as being the right to retain the same standard of living as had been the case when the party had been married, and that might be possible only by drawing on prenuptial, non-matrimonial property? That would undermine the whole purpose and force of the Bill. Will the noble Lord say a few more words about how the Government envisage defining the word “need” in this context?

[Lord Faulks]

The noble Lord makes an important point. What I did say was that the Government had not yet concluded how they proposed to respond to the Law Commission’s recommendations. The Law Commission has said that it considers it appropriate to override an agreement in some cases. I take entirely his point that if, as it were, the court is going to have a free rein to override an agreement simply because it thinks it fairer in the circumstances to come to a different conclusion, that would significantly undermine the degree of certainty which can be obtained by a prenuptial agreement. However, at the heart of what the Government will have to decide on this is to respect all the advantages that one can obtain from having a prenuptial agreement for the reasons that have already been outlined in the debate, yet not making it iniquitous in some circumstances—limited circumstances, I would imagine—where it is manifestly unfair for a party to be restricted by the scope of that agreement.

Criminal Justice and Data Protection (Protocol No. 36) Regulations 2014

Lord Davies of Stamford Excerpts

Monday 17th November 2014 Lords Chamber

Frankly, I am amazed that there is not more concern about this issue. Yes, it is our duty to protect British citizens against terrorism. That is true, but it is also our duty to ensure that British citizens have fair justice. I am afraid to say that I am not so far convinced that the proposals that the Government have brought forward actually achieve that. I shall listen to my noble friend’s arguments but I remain profoundly sceptical about and worried by these proposals.

[Lord Davies of Stamford (Lab)]

My Lords, I listened with great attention, as I always do, to the criticisms made by the noble Lord, Lord Lamont, of the 35 measures and the European arrest warrant. I thought that his points made no sense at all. His principal objection to the European arrest warrant seemed to be that it involved the jurisdiction of the ECJ, but then a few sentences later, having complained about the ECJ, he started complaining about the British courts and said that they were too restrictive in applying rights. Well, if you did not have the ECJ you would presumably be entirely and exclusively at the mercy of British justice. He does not like British justice, he does not like the ECJ—what exactly does he like?

The noble Lord then complained about the fact that we did not have exactly the same procedures for handling criminal cases in all the member states of the European Union. Surely if he wants some standardisation of procedures, which is a perfectly reasonable thing to demand, what he wants is indeed a treaty and what he wants to do is to support the Commission with its road map on procedural rights, which I hope he is aware of, which takes us in exactly that direction. But presumably he would not support that proposal because it is European. It is quite clear that his objection, as is always the objection of Eurosceptics to practical, sensible measures in this field, is entirely theological. One cannot do anything about that kind of impenetrable theology but one can at least try to make sure that as a House, as a whole, we look at the national interest in a cool, calm and logical fashion. That attitude has been notably missing from this whole debate over the past two or three years.

I have very little sympathy for the Government over this. The Government last week tried to make a fool of the House of Commons, which is a very undesirable thing for a Government to try to do. They ended up making fools of themselves and no doubt they are very conscious of that at the moment. The way that they have treated this House, as the noble Lord, Lord Boswell, so lucidly set out, is pretty close to duplicitous at times. It is very worrying indeed that we should be treated in that fashion.

The whole thing is completely unnecessary and pointless. It was quite obvious from the beginning that the Government were going to get parliamentary approval for these measures. It was equally quite obvious from the beginning that there was no need whatever, on substance, to opt out of anything at all. There is no objection in terms of national interest—nor has anybody ever suggested it from the government Benches—to any of the measures that we are not opting back in to. They were all secondary, technical measures or else they were redundant or obsolete. They could have been left quite happily and quite safely to wither on the vine. If we had wanted to make some changes in them, we could have negotiated changes.

Where we have in fact gone forward with these 35 measures, we have succeeded very well, I think. I congratulate the Government on getting some practical improvements—for example, in the area of proportionality in the case of the European arrest warrant—and I gather that we have persuaded the Poles, who were issuing warrants far too lightly and easily, to desist from that. That is the way forward, of course, in the European Union generally: quiet, sensible and constructive diplomacy. That works and confrontation does not.

I have to say to the noble Lord, Lord Lamont, and others who think it will be possible to negotiate a treaty between the European Union and the United Kingdom to replace the 35 measures, who is to say that the European Union would agree to anything of the kind? There are very considerable constitutional difficulties about the European Union. It is not provided for in the treaties at all—having a treaty with a member state of itself. It is a very peculiar philosophical and constitutional concept indeed. I do not think it is a precedent that the Union would wish to extend. It certainly has no reason to do so at the present time. Its obvious answer would be, “If the United Kingdom has come out with all these bizarre new proposals and suggestions and special requests, we will have to look at them all together. Since we are going to have a renegotiation by 2017, maybe we will look at it then in that context”. Some of our partners would not want to be helpful at all. As the House knows, Spain, until 10 days ago, was actually objecting to our opting back in. No doubt it would have come to us and said, “We would like a concession on Gibraltar or something in return for our support”. We would have ended up in a complete mare’s nest going down that path. Thank goodness that we did not. It would have been extremely dangerous.

Criminal Justice and Courts Bill

Lord Davies of Stamford Excerpts

Wednesday 30th July 2014 Lords Chamber

[Lord Cormack (Con)]

My Lords, the noble Baroness asks some pertinent and important questions. I had not intended to contribute to this debate, but was moved to do so by the extremely perceptive observations of the noble and learned Lord, Lord Woolf, and the noble Lord, Lord Marks, both of whom made some valid points.

We will be constantly reminded in 2015 of those central words of Magna Carta:

“To no one will we sell, to no one deny … justice”.

When the noble and learned Lord, Lord Woolf, talked about access to justice and how important it is that everyone should have it, it reinforced my belief that, although it is entirely proper to ask the sort of questions which my noble friend Lord Marks addressed, I would rather—I have said something similar in this Chamber before—we erred on the side of leniency. One is constantly reminded of that old adage that it is better that 10 guilty people get off than that an innocent person does not. In the context of the judicial review, it is far more important that the sort of people for whom the noble Baroness, Lady Campbell of Surbiton, pleaded the other day should not be discriminated against than that somebody who may be a little better heeled should be so. I hope that we can bring a balance to this matter and remind ourselves of that basic tenet of the rule of law:

“To no one will we sell, to no one deny … justice”.

[Lord Davies of Stamford (Lab)]

My Lords, I agreed with the very eloquent plea on behalf of the system of judicial review in a country based on the rule of law which we have just heard from the noble and learned Lord, Lord Woolf. I agree also with the remarks of and amendments put forward by the noble Lords, Lord Beecham, Lord Pannick and Lord Marks.

My noble friend Lady Lister has asked a lot of the pertinent questions. The noble Lord, Lord Cormack, just mentioned Magna Carta. I draw his attention to another part of that document. Ever since Magna Carta, it has been a principle that the state, the King or the Government cannot seize the property of the citizen except by some very clearly defined legal process and in very sharply legally defined circumstances.

Although I think that the rules about making third parties financially liable for court cases are not as clear in the law as a whole, particularly since the Hamilton v Al Fayed case, as they should be—and it would very good if we could have those codified more precisely—what would happen to the law in the matter of judicial reviews if we passed this Bill as it is would be quite horrifying. Clause 66 (3) states that a,

“court or tribunal must consider whether to order costs to be paid by a person other than a party to the proceedings, who is identified in that information as someone who is providing financial support for the purposes of the proceedings or likely or able to do so”.

I repeat,

“or likely or able to do so”.

That is in no sense precisely defined—it could be anybody. It could be any of the people listed by my noble friend Lady Lister. It could be—could it not?—someone who is a member of a corporate body, even though he or she had played no particular part in preparing for, or promoting, that application for judicial review. It could be—that would be a fear—someone who was a known supporter of a particular NGO which itself was an applicant; but, again, without he or she having played any part in supporting that application, or perhaps without even knowing that the application was being put forward. That is a perfectly possible scenario. We need to make absolutely sure that none of these obvious perversions of justice could occur.

I totally agree with the implication of the rhetorical question posed in the House this morning by the noble Lord, Lord Pannick, which is: why are the Government doing this? Clearly the Government are doing this in order to close down the judicial review system to the greatest degree possible, with the intention of protecting the Executive branch—it is a very dangerous tendency. What they are doing here, however, is drafting a law which simply does not meet the elementary requirement to be precise, clear and unambiguous. I think this phrase,

“or likely or able to do so”,

is really quite terrifying, and I hope we get some clear definitions from the Minister. Just a statement from the Front Bench will not do: we need to remove these very offensive—very dangerous—words, and replace them with something much more precise.

Since this group of amendments encompasses two clauses and two clause stand part debates, on Clauses 65 and 66, it is probably the right moment for me to raise Clause 67. It is probably also right for me to raise another matter that is coming up: Clause 68. Perhaps Clause 68 is coming up in another group of amendments. Is that the case?

[A noble Lord]

Later.

[Lord Davies of Stamford]

In that case I look forward to addressing the Committee on that matter later.

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

My Lords, I add my name to those who have raised the objections to these clauses. The noble Lord, Lord Davies, says that one should have greater precision if one is going to legislate in this way. The fact is that you cannot have greater precision. This feature of the Bill, like so many other features of Part 4, should be left to the courts to work out. As has already been said, there is an existing and entirely satisfactory body of law which governs the ability to pursue cost orders from unseen funders and backers of litigation—those who mischievously or for their own advantage support litigation—but not from those who, appropriately and philanthropically, rightly back public interest causes.

Indeed, in the justice briefing on these aspects of the Bill there is a footnote—a reference to a case that the noble Lord, Lord Davies, mentioned a few moments ago: Hamilton v Al Fayed (No. 2), which was decided in 2003. Noble Lords will find this an illuminating judgment—it is one that I myself wrote—that provides an ample basis for developing this area of the law. This should be left to the courts. We should not seek to deal with it in this way, which is necessarily going to lack precision because legislation cannot address all the varying circumstances that could arise.

[Lord Davies of Stamford]

In the circumstances, I am following what the noble and learned Lord is saying particularly closely. He seems to think that it is adequate that the courts should set rules on these matters. Does he not agree that it is very important that a citizen should always know in advance whether he or she is incurring liability, just like a solicitor needs to know in advance whether he or she is breaking the law? There should be no ambiguity in these matters. It should be quite clear what constitutes support, potential support or the creation of potential liability. It is very unreasonable that the citizen should be left in any doubt on that subject.

--- Later in debate ---

[Lord Faulks]

In many cases, this will be a fairly straightforward procedure, whereas in the Richard III case it would have been a rather unusual, more searching procedure. I am afraid that I cannot depart from the Government’s position that these clauses will put in statute an important process which has not always been adequately undertaken by judges, and which was welcomed by the senior judiciary, in order, in some circumstances—

[Lord Davies of Stamford]

Can we just establish the facts in relation to the Richard III case? We know that it would have been possible for the court in such a case, if it wished to do so, to investigate the funding of the straw company or the straw man who was the applicant and, if necessary, to have made an order for costs against the backers of that action. We also know that, in that case, that action was not taken. Did the Government make an application for a costs award in their favour on that occasion? In other words, did they attempt to initiate that process in the Richard III case?

[Lord Faulks]

I am not aware that they did. Rather than take up more time discussing the particular facts of that case, I will write to all noble Lords who have taken part in this debate and explain what course the Government took in relation to it. I think I have probably taken up enough time on the subject.

What we are concerned with is not, in fact, a radical departure from what exists, but sets down clearly the scope of the discretion and makes it a matter of course that in such cases there will be information about the financial resources, and that they will be used. As I have conceded, these clauses do not introduce any new principles concerning the costs liability of non-parties. Their purpose is to increase transparency, so as to allow the courts to exercise their existing powers and discretion more effectively. In other words, more information will be available on which to make any decision that they have to make.

The Government do not agree that the requirement to provide information should be limited or applied only in certain circumstances, as Amendment 73G would provide. We do not accept that the transparency requirements should apply to some people and not to others. Furthermore, we do not agree that prospective funding should be excluded from the information that an applicant is expected to disclose, as Amendments 73H and 73M seek to achieve. It is vital that the courts have before them the full financial picture of a claim. This must include details of any financial resources that are likely to be available towards the costs of the litigation. Noble Lords will surely accept that, were these amendments made, third-party funders who sought to protect themselves from liability would merely structure that funding in such a way that it would not be available on application but only thereafter.

We will be working with the Civil Procedure Rule Committee and the Tribunal Procedure Committee so that the rules can make clear the exact parameters of the information that applicants will be required to provide, together with a duty for applicants to update the information where circumstances change materially. The noble Lord, Lord Beecham, suggested that the rules of court would simply reflect what the Lord Chancellor wants. The position is that the Lord Chancellor can direct that they achieve a certain purpose, but the terms are for the rule committee. As I endeavoured to explain last time we debated these matters, the rule committee is made up of some extremely distinguished lawyers, and they will be responsible for the particular terms of the rules. I do not accept that the transparency requirement that Clause 65 permits is an onerous one.

I turn now to Clause 66. Amendments 73N, 73P and 73R are concerned with what the judge does with the information, and seek to change the circumstances in which the court should have regard to information about the funding of the application when making costs orders. Rather than requiring the court to consider the funding information provided under Clause 65, the amendments would allow the court to have discretion to consider financial information, which it would be able to order the applicant to provide if it considered it just to do so. The information would be limited to sources of funding actually available to the applicant, and would not cover sources that were likely to be available. Rather than looking at the applicant’s ability to fund the judicial review generally, the information would be limited to how the applicant would meet the other side’s costs.

Amendments 73Q and 73U seek to replace the duty, conveyed by the word “must”, with a discretion, conveyed by the word “may”, for the court or Upper Tribunal to have regard to information provided under Clause 65 when considering costs awards. These clauses do not mean that applicants have to provide an in-depth breakdown of every aspect of their financial position, but it is right that they should provide information on how they will fund the judicial review generally, and not just the other side’s costs. If necessary, applicants will be able to update the court at a later stage if the position changes. I would expect those who choose to bring a judicial review to consider first how they will meet the costs of doing so. This is what the clause seeks to bring about.

It is right that the courts should consider this information. Let me be clear that this does not mean that a court will be obliged to make a costs award against a non-party. As the noble and learned Lord, Lord Brown, made clear, there is a substantial body of jurisprudence as to how the discretion is exercised vis-à-vis a non-party. Rather, the courts are obliged to consider the information properly when deciding whether or not to make such an order.

Amendment 73T would allow the courts or Upper Tribunal to sit in private or impose reporting restrictions to protect the privacy of a person’s financial information which is required to be provided under Clause 65. I fully understand that it may seem that such a provision is necessary, but I hope to be able to provide reassurance that the amendments are not necessary as courts have existing powers in this area. There has long been a general rule that a hearing is to be in public. However, the power has existed for a long time to conduct proceedings in private where necessary in the interests of justice. Rule 39.2 of the Civil Procedure Rules already reflects that power so that if a hearing involves confidential information, including financial information, and if publicity would damage that confidentiality, this information can be kept private. As is the case now, this clause does not change the position that financial information made available to the courts need not be made publicly available.

Amendments 73W and 73X amend the duty on the court so that it need consider costs orders against only those who have actually provided support or, as provided by Amendment 73V, those who have promised to provide support. This would mean that the court would not have to consider making a costs order against those who are likely to contribute to the funding of the judicial review, including not making costs orders against those sheltering behind shell companies created simply to avoid proportionate liability for costs.

Amendment 73V would also mean that those who are likely to fund and drive litigation could escape the appropriate costs liability by not formally promising to provide support. In my view, this would defeat the purpose of the clause and is not a sensible position. It is the Government’s view that those who finance and drive judicial reviews should face appropriate costs consequences in doing so. I shall shortly answer the questions raised on that by the noble Baroness, Lady Lister, and others. This means that the court should have before it and consider all of the information when making costs awards, and this should include not just those who have provided funding but those who are likely to do so.

In my view, it should not be possible to bring litigation in such a way as to circumvent proper costs exposure. The changes introduced by Clauses 65 and 66 tackle precisely this issue, ensuring that those driving judicial reviews assume a fair and proportionate share of the financial risk, always, of course, subject to the discretion which must exist in these circumstances, given that it is impossible for a legislative provision to define exactly every single type of situation where the matter would have to be dealt with.

There is no question of singling out those who support applicants. In answer to a question raised by the noble Lord, Lord Beecham, and, I think, others, I should say that the power that courts have to order non-parties to pay costs in litigation of whatever character exists and, in appropriate circumstances, would apply to non-parties whether they are in some way supporting one side or another. That power exists.

As to the reduction in legal aid, my noble and learned friend Lord Mackay accurately stated the position in relation to legal aid. Unlike in many areas of the law, legal aid does remain in scope for judicial review subject to means tests and merits tests. That is an important inclusion of scope. On the point made by the noble Lord, Lord Pannick, the Civil Legal Aid (Remuneration) (Amendment) (No. 3) Regulations 2014 are concerned simply with that part of the procedure where an unsuccessful application is made for permission and only in relation to that permission. That, I know, is controversial, but it should not be thought that legal aid is not available for judicial review.

The noble and learned Lord, Lord Woolf, whose excuse for lateness was, of course, of the highest order, mentioned the availability of conditional fees. These are of course much less available following Part 2 of the LASPO Act, which indeed was supported by the noble and learned Lord, Lord Woolf, among others, on the basis that an unfortunate consequence of the expansion of the original idea of conditional fees—which I think was in modest scope the responsibility of my noble and learned friend Lord Mackay—had resulted effectively in a bonanza which was in fact having a number of undesirable consequences. There is a much more modest scope now for conditional fees.

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[Lord Faulks]

No, I do not think that the noble and learned Lord was here at the beginning of the debate, but I have not, in fact, suggested that the provisions were there only for that reason. I see the noble Lord, Lord Beecham, is nodding. I said that they are there because the Government think that they should be included. However, I did say that the senior judiciary welcomed a degree of transparency. I am not suggesting that that they also endorsed the precise form of the statute, if that helps the Committee or the noble and learned Lord.

[Lord Davies of Stamford]

The Minister said two things, if I heard him right. One was that the intent of these clauses is not in any way to change the common law basis of the criteria for determining liability for the costs of a judicial review, and that those who are currently not exposed to such liability will not be exposed as a result of the provisions in the Bill being passed. At the same time, he said that there are categories of people who have been getting away with avoiding financial liability for judicial review at the expense of the taxpayer, when they should have been liable. Can I put it to him that those two statements are not logically compatible? Either there is a change in the scope of liability for judicial review as a result of these clauses or there is not.

[Lord Faulks]

I cannot add much to what I have already said. For the first time, in statute—if this clause becomes law—we shall have a requirement for information about financial resources to be provided. We shall also have clear guidance to the court as to how it should exercise its discretion on using that information about financial resources. I think that the noble Lord himself said that it was useful to have some of these things stated in the statute. That is precisely what we are doing.

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[Baroness Deech (CB)]

My Lords, I intervene very briefly, again as one who has been judicially reviewed—indeed, as one who is constantly being judicially reviewed. There is something of a flavour here that judicial review is always a case of David versus Goliath. However, it has to be remembered that sometimes it is a case of David versus David. Although the first David may passionately believe that what is being done in their name is in the public interest, the person on the other side may equally strongly and decently believe that what they are standing up for is also in the public interest. They are not necessarily a well funded public organisation. That is why I have some sympathy with the retention of Clause 69(2), and with giving some support to the other party who also believes that their costs should be capped because they are defending something that they believe is in the public interest. Other than that, I think that the general tenor of the argument that judicial discretion should prevail is the right one. I support the general thrust of the amendments, subject only to our remembering that the person who is not the claimant—the respondent—may have an equally innocent and good case and believe that they are standing up for the public interest.

[Lord Davies of Stamford]

My Lords, in my view there is a lot of mischief in this clause and the best solution would certainly be to leave it out of the Bill altogether. I want to touch on three particular pieces of mischief which lie within it.

Subsection (3) has already been dealt with by the noble Lord, Lord Pannick, in proposing his amendment to remove that subsection from the Bill. No one doubts the great importance and value of having a costs-limiting facility available in judicial review. The Government are not arguing that there should be no such scope for costs-limiting orders, and no one else has argued that there should not be such scope. I think no one would deny that if there were no possibility of getting costs-limiting orders, some very meritorious applications that were very much in the public interest would not be made. That would be a great loss to our legal system. As the Government have not argued against the principle of costs capping, I do not think that I need say more than that.

Equally, I do not think that anyone can deny that if the Bill is introduced in this form and subsection (3) proceeds on to the statute book, an awful lot of the value of costs capping will be negated because applicants will be exposed to very significant financial liabilities—almost certainly incalculable financial liabilities—before they get to the point when a costs-capping order can be considered by the court. Therefore the effect of the costs-capping order would itself have been negated and a large number of potentially meritorious applications will not be able to proceed at all and will not be started. That would be a great loss to the system. If the Government said that that was their intention, they would at least be straightforward about it. In actual fact, however, I think they are again in a state of contradiction, saying on the one hand, “Yes, we do want to have a costs-capping provision”, but, on the other, “We want to introduce a measure that will in practice negate very largely the benefit of that provision”.

My second problem with this clause concerns subsection (6), which states:

“The court may make a costs capping order only if it is satisfied that … (b) in the absence of the order, the applicant for judicial review would withdraw the application for judicial review or cease to participate in the proceedings”.

What exactly does that mean? Once again I ask for clarity because the law ought to be clear. This means that the court has to be satisfied that the applicant would actually withdraw the application if a costs-capping order is not provided. Is that based on the applicant saying that he or she would withdraw the application if no costs-capping order is given? If so, does that create an obligation for the applicant to withdraw if the costs-capping order is denied? It is perfectly possible that a costs-capping order might be asked for in very good faith by an organisation with very slender means or by an individual with very slender means who later finds that his or her cause is backed by a rather wealthier supporter. Therefore it is possible that the application could be saved after the denial of a costs-capping order, by some other party coming in to support the application, with all the liabilities attaching to that which we discussed this morning. Would that eventuality be denied by this provision in the Bill? We should be absolutely clear about that, because the word “satisfied” is a very strong word, it seems to me. How do you know that the applicant would withdraw in those circumstances? How can you possibly know such a thing unless the applicant has given such an undertaking? If the applicant has given such an undertaking, presumably that undertaking is enforceable. We are not told that in the Bill, but we ought to be told by the Minister whether that would be the effect that the Government seek.

Finally, I object very strongly to subsection (9), which has already been referred to as a Henry VIII clause. However, it is a Henry VIII clause of pretty extraordinary dimensions. One is used to Henry VIII clauses in legislation. There are far too many of them. There is one later on in the Bill under Clause 73. Clause 73(1) states:

“The Lord Chancellor or the Secretary of State may by regulations make consequential, supplementary, incidental, transitional, transitory or saving provision in relation to any provision of this Act”.

That is the sort of role that we associate with Henry VIII clauses—that is, adding something that is technical, that fills in some gaps at some point, but that does not change the main thrust of the primary legislation at all and merely makes it perhaps more easily implementable. That is an acceptable Henry VIII clause in principle. However, we are faced with the following in Clause 68(9):

“The Lord Chancellor may by regulations amend this section by adding, omitting or amending matters to which the court must have regard”.

In other words, the Lord Chancellor can rewrite the whole of the clause. That is an extreme form of a Henry VIII clause. It would probably be better described, by using some rather sinister terms from European history, as an Ermächtigungsgesetz or a plein pouvoir. To use a commercial analogy, I suppose that it is rather like a bidder or tenderer in a commercial contract who sends in a bid and says, “The price will be the following, the delivery date will be the following, the specifications will be the following”, and then adds a final clause saying, “The bidder may, at his discretion and without penalty or limitation, change any of the above at will”—in other words, devalue the whole document. The whole thing is complete nonsense because you cannot be certain that any of it will actually remain or that any of the apparent purposes in the text will actually influence reality in the future. The whole of this could be a complete waste of time by Parliament because, as I read subsection (9), the Lord Chancellor could go away and change anything in this clause at all, including the major substantive provisions: the terms, conditions and criteria by which a costs capping order can be considered. For the reasons that I and others have set out in this debate, that is actually a very important exercise.

Again, this is a completely unacceptable clause for government to put forward in any legislative context, and certainly in this one. I hope that the Government will withdraw the provision. I hope, better still, that the Government will withdraw the whole clause.

[Lord Woolf]

This costs capping provision was brought in because the nature of current litigation means that the costs of exercising your rights, whether as a claimant or defendant, are often prohibitive. Perhaps I may refer to one of the first matters where costs capping came before the courts. I was personally involved, so I hope that that does not make it inappropriate for me to refer to it. It was an action against tobacco companies that was brought by those who had suffered as a result of smoking. It illustrates that a situation can arise where, even with the help of conditional costs orders—of which the noble and learned Lord, Lord Mackay, was the original author—it is not possible for proceedings to be brought because the costs can be so great that no law firm could take the risks involved in bringing an action against the tobacco companies, which were going to fight them intensely and had huge commercial reasons for doing so. I suspect that the matter came before me because the precedent for those was, in fact, the litigation across the Atlantic. It is an indication that we have to take care to try to control costs capping orders. I refer to that because it seems to me questionable to regard these provisions as appropriate, if appropriate at all, only in regard to judicial review. I do not think that the reference to public interest proceedings would, for example, cover the tobacco proceedings of which I had experience.

In general, however, I agree entirely with the comments and points that have been made by the noble Lord, Lord Pannick, and others who followed him, which are the basis of the amendments. It is also quite right to say that there is no possible justification for this to be done. I know that I am reiterating what I have argued before in relation to other provisions. However, this is not an example of the Government doing something that Parliament cannot do; it is an example of the Government doing something that they should not seek to do. Bearing in mind the relationship between the judiciary and the legislature, the legislature should not seek to impinge on a judicial discretion where there is no suggestion that there is any need to do so and where the court—in the case to which the Minister referred, the Corner House Research case, in 2005, 1 Weekly Law Reports 2600—set out its views and the principles at that time. Those principles have had to be modified in the light of cases that have come before the court subsequently. Here is a natural process being developed whereby a problem arises—not of great dimensions, but very relevant to the very small minority of cases to which it refers—and the courts react to it.

--- Later in debate ---

[Lord Faulks]

I do not have any more authoritative figures. I will certainly write to the Committee before Report giving those figures, if they are available. I cannot guarantee that they are available, but if they are, I will certainly assist the Committee. We have, however, to consider not only the past position but the position prospectively. It is necessary in this context to consider what might be done in the future were there, as some of these amendments suggest, to be a loosening of the rules.

It is important that the matters listed in the clause are taken into account. I do not consider the factors to be contentious. Common sense dictates that, in deciding whether proceedings are public interest proceedings, consideration needs to be given to the number of people directly affected and the significance of the effect. It is also right that the court considers whether the proceedings involve consideration of a point of law of general public importance.

Clause 68 sets out three requirements in subsection (6) that proceedings must meet before a costs capping order can be made: first, that the proceedings are “public interest proceedings”; secondly, that in the absence of the costs capping order the claimant would not continue with the judicial review; and, thirdly, that it would be reasonable for the claimant to act in this way. Amendment 75F seeks to remove these entirely and Amendment 76 would remove the third of these criteria.

The noble Lord, Lord Pannick, was concerned about how this subsection would be interpreted.

[Lord Davies of Stamford]

The noble Lord has just read out the criteria for making a costs capping order in subsection (6). Does he agree that because of the Henry VIII-plus provision in subsection (9), all those criteria could equally well be set aside, waived or completely changed simply by fiat of the Lord Chancellor at any time?

[Lord Faulks]

As the noble Lord would expect, I am coming on to consider the Henry VIII clause, so perhaps he will be kind enough to bear with me until I come to address that particular issue.

In the mean time, I shall deal with the assessment of whether it was reasonable to discontinue the claim, which was a question from the noble Lord, Lord Pannick. This was not in the summary of the Corner House case, and it was only a summary that I endeavoured to assist the Committee with. It is a matter that we can find in the case. The provision in respect of the claimant being reasonable in discontinuing their claim comes from the Corner House principles. The court now assesses whether, without a protective costs order, the claimant would be reasonable in discontinuing their claim based on the lack of financial protection. All that we are seeking to do in statute is to confirm what is already in that case. I will come on to the point about the Henry VIII clause.

It was a requirement of the Corner House case that capping orders may only be in cases where the issues raised were of general public importance. The public interest requires that those issues be resolved and if a costs capping order is not made, the claimant would discontinue the proceedings and would act reasonably in doing so. The Government are not of the view that those requirements should be removed. Amendments 75F, 77 and 81 would remove from Clauses 68 and 69 powers for the Lord Chancellor to amend lists of matters within these clauses through statutory instrument. We do not believe that that is a sensible approach. I will set out why.

Removing the powers to amend these lists of matters would prevent us from responding quickly should it become necessary. Over time we have seen the development of the principles governing where a costs capping order should be made. That is clear from the changes that have been made to the principle set out in the Corner House case, referred to by the noble and learned Lord, Lord Woolf, in his contribution to the debate. It may be the case that there are future developments which mean that it would be appropriate for the courts to consider different matters when deciding whether, for example, proceedings are public interest proceedings. These powers give us the ability to respond quickly should change be needed. While this is done through statutory instrument rather than primary legislation, it does not mean that Parliament will be unable to consider any changes. Both powers are subject to the affirmative resolution procedure, so any changes will be debated in both Houses before coming into force. I also note that the Delegated Powers and Regulatory Reform Committee, whose report was discussed earlier in Committee, recommended the creation of a similar model elsewhere in this part.

This is not a question of the Lord Chancellor, as it were, having a free opportunity simply to alter the whole burden or interpretation of the clause. When dealing with the present position of the Lord Chancellor, the noble Baroness, Lady Lister, referred to the Joint Committee on Human Rights and the position of the Lord Chancellor generally. Of course, the Government responded to that report, as she will be aware. In particular, it referred to Section 1 of the Constitutional Reform Act 2005, which expressly provides that its provisions do not affect the existing constitutional principle of the rule of law or the Lord Chancellor’s existing constitutional role in relation to that principle. Furthermore, the Lord Chancellor’s oath specifies that his role is to,

“respect the rule of law”.

It suggests that the responsibility of the Secretary of State, for example, regarding sentencing or prisons, undermines the Lord Chancellor’s responsibilities for justice and the rule of law. It is a big question which I understand has been considered by the Constitution Committee of your Lordships’ House. I do not think it would be appropriate for me to comment further except to say that, as I think the Lord Chancellor has said on a number of occasions, he is very mindful of his oath and his obligations in that regard. As the noble Baroness herself acknowledged, the change—to put it neutrally—to the Lord Chancellor’s role was brought about in something of a hurry by the party opposite when in power.

I turn to Amendment 75B, which seeks to extend the protection of costs capping orders to those who intervene in judicial reviews even though they are not parties to the proceedings. We see that as a step too far. Under the current scheme, I believe that interveners do not receive such orders. It would not be consistent with their status as a non-party. For example, an intervener could not, as required under the clause and the Corner House principles, meet the criteria of discontinuing the proceedings. I said in the debate on Clause 67 that an intervention should be made in a way that does not incur additional costs for the claimant or to the usually taxpayer-funded defendant. There are sufficient safeguards set out in Clause 67 to render this amendment unnecessary. For example, if the court considers that there are exceptional circumstances that make it inappropriate for the intervener to pay those costs, it will not award costs.

The Government accept that the court should continue to be able to grant cost protection where the issues are genuinely of public importance and the case cannot proceed otherwise because of the costs risk, but we wish to ensure that they are not made widely or in any way routinely. As the noble Lord, Lord Pannick, pointed out, they may not be very frequent, but we certainly do not want to increase their use or increase their use in different circumstances. It is only in exceptional meritorious cases, where there are serious issues of the highest public interest that otherwise would not be taken forward, that a public body defendant should have to pay its own costs regardless of whether it wins or loses. The clause retains the principle that the costs are a matter for the judiciary. When considering an application for a costs capping order, it will be for the judge, as currently, to decide whether the particular proceedings are in the public interest and whether an order should be made in an individual case. I am extremely mindful of the comments made by the noble and learned Lord, Lord Woolf, in the context of this and other amendments—indeed throughout Part 4. In his view and that of other noble Lords, it is an encroachment into judicial territory. It is said that Parliament should not be involved in areas where judges can develop the law and where they exercise their discretion. I understand that point. The Government do not seek to fetter the discretion inappropriately but none the less consider it appropriate to set out with some clarity what the provisions are while still permitting there to be judicial discretion, as indeed is appropriate.

[Lord Davies of Stamford]

Before moving to the next clause, I wonder whether the Minister would be kind enough to address the two questions I asked on how the court will satisfy the obligation that will be imposed on it by the Bill that an applicant would not proceed if a costs-cutting order were denied. My two questions were: would the applicant be asked the question and be required to make a statement saying that he or she would desist from an application if a costs-cutting order was not available? Secondly, in the event that such a declaration was made, would it be enforceable and would the applicant be held to it? In other words, would it in all circumstances be the end of that application, even if other sources of funding could, at that late stage, be found, even if they were not anticipated?

[Lord Faulks]

Those are precisely the circumstances in which we think the matter is best left to the judges. Indeed, judges have been performing such an exercise under the Corner House principles, which would not alter if the Bill is enacted in the way in which the Government suggest.

Clause 69 sets out the way in which a court should approach the decision of whether to make a costs capping order and the terms of such an order if made. It contains a list of five factors that the court must consider as part of this process. Noble Lords will recognise that, with one exception at subsection (1)(e), the factors build on considerations for making a costs capping order which were set out in the Corner House case.

Amendment 78 seeks to make it optional for the court to have regard to these factors. It is right that the court must consider the factors at Clause 69 when considering whether to make a costs-capping order as they are of great importance in ensuring that a costs-capping order is not awarded where it is unnecessary. However, the courts still have discretion, as the clause does not inhibit the courts’ discretion in deciding how much weight, if any, should be given to each factor. In addition, the list is not exhaustive, meaning that courts can have regard to any other factors which they consider to be relevant to the case before them. Amendment 78 is therefore unnecessary in the Government’s view.

In order to understand the effect of Amendment 77A, it is necessary to consider Amendment 75F, which is discussed in a later group and which removes the requirements for making a costs-capping order from Clause 68. When taking this amendment into account, the effect of Amendment 77A is to grant the court a general discretion to make costs capping orders, provided it is of the view that an order would be just, having considered the circumstances of the case, including the factors set out at Clause 69.

Amendment 80A transposes the requirements from Clause 68 that are removed by Amendment 75F into Clause 69, where they become additional factors that the court must take into account when considering whether to make an order, instead of requirements which must be met before an order can be made. Amendment 80 also adds an additional factor to the list of factors for the court to consider, which is the likely effect on the applicant if a costs-capping order is not granted.

Amendments 77A and 80A go too far, particularly when taking Amendment 75F into consideration. The effect of these amendments together would be that a number of the Corner House principles, which must currently be satisfied before a court can make a costs-capping order, would merely become factors for the court to consider, allowing an order to be made in cases where none of those principles was fulfilled. We suggest that that cannot be right. The principles set down in this case must be the starting point, and must certainly be satisfied before the taxpayer is asked to subsidise the cost of the litigation.

Amendments 79 and 80 seek to amend the list of factors in Clause 69 that the courts have to consider. Specifically, they seek to remove the requirement that the courts have regard to: the financial resources of third parties who have provided or may provide financial support to the parties; and the extent to which third parties who have provided or may provide financial support to the claimant are likely to benefit if the claimant is granted a remedy in judicial review.

Amendment 79 would mean that the court would not have to take into consideration the financial resources of third parties who may provide funding in the future. This would mean that the court would not have a full picture available when deciding whether it was appropriate to grant costs protection. We do not agree that this is a sensible position. Courts should consider information relating to potential sources, otherwise it could lead to orders being made in cases where it is not necessary or appropriate and, should the claimant lose, would result in the taxpayer being asked to pick up the bill. Again in the Corner House case, one of the requirements was that the court should have regard to the financial resources of the parties to ensure that any order the court made was fair and just.

I would like to reassure noble Lords that we intend to provide a safeguard so that, where a claimant has told the court—this perhaps answers to some extent the residual query of the noble Lord, Lord Davies—that it expects to receive future financial support and that support is ultimately not forthcoming, the claimant will be able to inform the court so the court can take the change of circumstances into consideration. Clause 68 provides that rules of court will set out the information that a claimant must provide when applying for a costs-capping order. We will invite the Civil Procedure Rule Committee to include the safeguard in those rules. While it may be argued that an alternative to this safeguard would be for the court to take account of financial support only once it has been received, I do not think that this would be appropriate as the making of the costs-capping order may well remove the need for that support, meaning it might never be forthcoming.

Amendment 80 would remove the requirement that the court considers the benefit to a potential third-party funder. The Corner House principles recognise that a claimant’s private interest in a case is a relevant factor when considering whether to grant a costs-capping order. This principle from Corner House is reflected in Clause 69, which requires the court to consider the extent to which a grant of relief in the judicial review would be of benefit to the claimant and third parties who have funded or may fund the claimant’s case. It is right that the court consider the full picture when considering whether to make an order.

Clause 69 also requires that, when a court makes a costs-capping order in favour of the claimant, it must also make one for the defendant—a matter referred to by the noble Baroness, Lady Deech—thereby limiting the defendant’s liability for the claimant’s costs should the defendant lose. Such orders are commonly known as cross caps and are not new. A court will often already make such an order in practice, but we think that in future they should be made in all cases where the claimant is granted costs protection. Amendments 80B and 80C would weaken this principle so that the courts may, or should normally, impose a cross cap. I accept that in most cases a public body has more resources available to it than a private individual. However, they are not unlimited, as the noble Baroness quite rightly said. These resources ultimately come from the taxpayer and it is right that they should also have costs protection. This subsection reflects the general principle in civil cases that overall costs should remain within reasonable limits and that the taxpayer is not asked to subsidise a disproportionately large costs bill.

I entirely accept what the noble and learned Lord, Lord Woolf, said, that sometimes the courts have to intervene to protect claimants where otherwise a claim simply could not be brought. It is a difficult balance to achieve, begun modestly by my noble and learned friend Lord Mackay and expanded upon subsequently in a way that effectively resulted in unfairness to the defendant. It is always difficult to establish a regime that entitles proper access to justice, but nevertheless retains a level playing field for all parties.

We say that neither this subsection nor the clause as a whole will take away the discretion of the courts—I emphasise this—to make decisions on costs. The clause does not prescribe the level of the caps; judges will be able to set the caps at levels tailored to the cases before them. The levels of the claimants’ and defendants’ caps may naturally be different, depending on their means. This, I believe, will address any imbalance between the financial positions of the parties. It remains a matter for the court to decide whether a costs-capping order should be granted in individual cases, and the terms of that order. This is the only appropriate way to ensure that these orders are made only in cases that genuinely need them and are set at a level that properly reflects the financial position of the claimant.

Criminal Justice and Courts Bill

Lord Davies of Stamford Excerpts

Monday 28th July 2014 Lords Chamber

[Lord Horam (Con)]

My Lords—

[Lord Davies of Stamford (Lab)]

With great respect, I think that it may be our turn.

[Lord Horam]

I do not think that anyone on this side has spoken yet.

Everyone who has spoken so far has been a lawyer, with the exception of the noble Baroness, Lady Lister. I am not a lawyer; I am an economist, but perhaps I introduce a rather separate vein of thinking into this debate, which is extremely interesting and very important for the conduct of government.

The issue that concerns me as an economist and as a previous government Minister is delay. Almost all judicial review cases involve considerable delay. Indeed, the noble Baroness, Lady Lister, rightly and very fairly mentioned the report of the Joint Committee on Human Rights which went into the whole business of judicial review. In that case, the Government’s response indicated several instances where there had been great delay as a consequence of judicial review cases. I will not go through a long list, as that would weary the Committee, but I shall give some examples. A development of 360 homes in Carmarthenshire was delayed by 18 months. A development in east London which would have created 500 jobs was delayed by 15 months. The expansion of Bristol Airport was delayed. Very often, in the judicial review in question, the case was found to have no merit whatever, but there was still delay.

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[Baroness Campbell of Surbiton (CB)]

My Lords, I support all the amendments in this group, particularly Amendments 70, 71, 72 and 73 in the names of my noble friend Lord Pannick and my noble and learned friend Lord Woolf, and I oppose the question that Clause 64 stand part of the Bill. Like the noble Baroness, Lady Lister, I also need to lend my voice to this area of reform from the perspective of the ordinary person. I look at this through the prism of those with little power, little control and very little knowledge.

Clause 64 strikes a blow at the heart of democracy, viewed with the other provisions of Part 4 and the Government’s legal aid reforms. We all agree that British citizens, whether rich or poor, able or disabled, have a democratic right to access the justice system. As I said at Second Reading, holding public bodies to account when they get it just plain wrong is a vital part of the rule of law, and I believe that it leads to better services. I cannot understand why the Government would want to restrict it; surely it is something that we would all welcome.

The clause moves the goal posts when people seek judicial review. It lowers the test and forces judges to refuse it where currently they have discretion. In future, the courts must refuse if the outcome is “highly likely” to have been no different—a significant change from “inevitable”. This is highly likely to mean that unlawful and, I have to say, even dishonest decisions will go unchecked and public bodies will get off scot free. For some very vulnerable people in our communities, this is really serious. It flies in the face of what the Minister said at Second Reading: that Part 4 will ensure that judicial review,

“continues as a check on the Executive”.—[Official Report, 30/6/14; col. 1542.]

Well, this is a very strange check. More importantly, it could give rise to a breach of Article 6(1) of the European Convention on Human Rights in fettering access to the courts. It is also particularly relevant to the public sector equality duty, which requires that due process is followed. The Government may think that that does not matter. It does, crucially, as the Court of Appeal recognised in the Bracking case. The decision to close the Independent Living Fund was held unlawful because it was taken without due regard to the public sector equality duty.

I asked the Minister at Second Reading how judges would be able to weigh up “highly likely” without speculating. Surely, judges are supposed to decide on the facts— that is what I was always told—not second-guess what might have been. I have not heard from the Minister—he was not able to answer me at the time—and I really hope that he will tell me today.

The Minister has said that the aim of Part 4 is to limit the potential for abuse, such as delay. That puzzles me. If the court has to inquire into things that it would not otherwise consider until the judicial review itself, how will that reduce delay? It can only lengthen the case and increase the costs. I agree with the Joint Committee that Clause 64 should not stand part of the Bill but, if it remains, I will certainly support these amendments to reflect the current approach of the courts.

[Lord Davies of Stamford]

My Lords, luckily, and happily, I think there is little danger of this debate becoming a closed shop of the legal profession. It is very important that that is the case, because in my view Part 4 of the Bill, which represents an attempt by the Government to—I think one can only say—clip very severely the wings of the whole judicial review system, is something that goes to the heart of the way that we are governed, something that is of interest to every citizen as much as it is to professional lawyers. It raises questions such as: do we live in a state in which the Government are subject to the law? Is that a purely theoretical state of affairs or a practical reality? Is there some way of enforcing that principle? Is it possible for the citizen to get an authoritative view of what the law is? He or she is supposed and indeed compelled to obey it, but is it possible to get a judicial decision as to what the law is in a particular circumstance? Do the three powers of government operate as they should? Do they act as a balance on each other, or is one of those three powers oppressive to another? These are foundational questions and I think that we have been quite right to spend a bit of time this afternoon addressing some of these basic principles as well as the Bill.

However, I will now say a few words about the Bill. We heard two very distinguished speeches from the noble and learned Lord, Lord Brown, and the noble Lord, Lord Marks, setting out some of the central principles that lie behind this debate. I agree with much of what was said by both of them. On the central controversy between the two as to whether Parliament should legislate in the area of judicial review, I side entirely with the noble Lord, Lord Marks. It is, in my view, Parliament’s essential job to review and keep under review the constitution, and to make changes to it when it decides that that needs to happen. We created the Supreme Court recently, for example, to keep under review the operation of our legal system and the evolution of jurisprudence, to correct a tendency that we do not approve of by using statutory law, and so forth. These seem to be essential roles of Parliament and we should not shy away from that.

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So far as the first clause is concerned, I do not intend to deal with the detail of the amendments at this stage because the Minister will no doubt wish to do so. So far as I am concerned, the first clause does not preclude the idea that, if the court thought the outcome should be a declaration, it would not be able to do so because it is the outcome for the applicant. If the outcome for the applicant is a declaration that there has been a practical wrong or unlawful practice and the applicant could secure that as a declaration, it would be part of the outcome. It might not make much difference for the rest of his situation, but at least that would be part of the outcome that the court might think was possible. At the early application for leave, that point could certainly be considered.

[Lord Davies of Stamford]

I am listening with great attention to what the noble and learned Lord is suggesting. Is he proposing to put down an amendment to allow the court, notwithstanding the restrictions that are being imposed in this Bill, in the event of what is described as being an academic case in which the outcome is not likely to be very different one way or another for the applicant, nevertheless to proceed under those circumstances if its intention is simply to make a declaration? That is not provided for in the Bill at present. Is the noble and learned Lord proposing to put down on Report an amendment that would give that suggestion effect?

[Lord Mackay of Clashfern]

If that were necessary. I regard it as something that could happen under the existing clause because the outcome for the applicant could include a declaration, in my judgment. It is a question of whether the court thought a declaration appropriate. If it did, it could do so, notwithstanding the provisions of Clause 64.

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[Lord Faulks]

It might or might not be “inevitable”, but we suggest “highly likely” would ensure that it would not survive. “Inevitable” might leave room for the argument that it was highly likely but not inevitable. This makes sure that the position would be as we say that it should be.

[Lord Davies of Stamford]

I am grateful to the Minister for giving way. Does he accept that his remarks in his last few sentences do not really address what has come out of the debate on the subject? It is quite clear at present that the court would almost certainly not give judgment in such circumstances as he described; it would set aside the argument, not accept a judicial review and say that there was no reason to reopen the whole case. The court at present has that jurisdiction and has that opportunity if it wishes to use it. What the Government are trying to do with this clause is to remove any judicial discretion at all by the phrases “must not” or “may not”. The examples cited by the Minister stand in favour of the preservation of the existing law, not the changes in the way recommended or as enshrined in this Bill.

[Lord Faulks]

I think that is very much the same comment the noble Lord, Lord Beecham, made, although expressed in slightly different terms. As I will come on to explain, we suggest that the clause—if it is incorporated into the Act—would still give the judge discretion. We are simply making it clearer where the bar is placed.

At present the courts will find that there will be no difference where the end result was inevitably the same. Amendments 71B, 71C, 72B, 72C, 73C and 73D and the amendments consequential upon those would go further in adding additional requirements concerning the public interest and the overriding objective. Those additional requirements do not apply at present as the law is understood by the Government.

The current threshold is already extremely high. In the Government’s view, this means that judicial reviews can be grounded on technicalities which would in practice have made no difference to the end result, or, ultimately, the applicant. That is why it comes up so rarely, and that is why we wish to modify the current approach. In the Government’s view, scarce court resources would be better applied to cases in which a difference to the outcome is more likely. But I reassure noble Lords that, as drafted, what Clause 64 does not do is make the exercise of this power in any way routine. This is because the clause applies the standard of “highly likely”. This will remain a high threshold, and when there is any significant doubt that there could have been a difference for the applicant, the threshold will simply not be met.

Concerns have been raised that in applying this approach of diligence, the courts will be dragged into the forbidden ground of a merits-based review, where they insert themselves into the decision-maker’s shoes. I respectfully disagree with this. I am sure that the courts will continue with the established way in which judicial reviews progress; namely that they consider the process which led to, and not the merits of, the decision, the legality of the process being the essence of the challenge. They will perform this exercise even in the examples postulated by the noble Lords, Lord Beecham and Lord Davies. It is inevitable that they will have to look at the facts there and then on the basis of the information. What we are suggesting is that a very low bar is raised slightly higher, but the exercise will be performed at the same stage.

Furthermore, there is an additional reason why this exercise should not create real difficulties for judges. Judges often have to make decisions on the basis of information available to them which is not complete. For example, in a civil claim where, let us say, a claimant is suing for negligence, the defendant may argue that the claim should be struck out on the basis that it discloses no cause of action. There the claimant’s case may be taken at its highest, and the argument proceeds that even if the claimant is right, the claim is not sound in law and must therefore be struck out, to which the answer often given by claimants is, “Well, my Lord, you haven’t heard the evidence. If you hear the evidence and get a clearer view of the matter, then our slightly adventurous case may be seen in a better light”. Sometimes that argument is persuasive, but very often judges are able to take the view that the position is sufficiently clear for it to be uneconomic and unnecessary to hear the case. This is the task they perform.

Nor do I think that the “highly likely” test should be beyond the agility of our very distinguished judges performing in the High Court, as the noble Lord, Lord Elystan-Morgan, emphasised. It is not the balance of probabilities, but the “highly likely” test is something I feel confident that they will be able to apply.

Amendments 72E and 73A probe the scope of Clause 64 in practice following the recent report of the Joint Committee on Human Rights, to which the Government responded in July, over what types of flaw the clause will affect. In the Government’s view, the term “procedural defect” is too imprecise to be used in legislation. The grounds for judicial review are not defined in legislation; doing so in certain areas would be a significant step. “Procedural defect” has no accepted definition at present under case law, and it would be virtually impossible to arrive at one that would stand the test of time, given how judicial review evolves with each new decision. Furthermore, it would lead to the risk of satellite litigation, referred to by a number of noble Lords.

We have also heard concerns that the clause will cause administrators to act unlawfully, for sinister motives, safe in the knowledge that, if challenged, they will have a “get out of jail” card. No decision-maker is going to follow knowingly an unlawful process simply because they think that at some point in future they may be able to argue successfully that there would have been no difference to the outcome. This is particularly so, as I have already indicated to your Lordships’ House, because our reforms have maintained a very challenging threshold.

Lest it be thought that the Government have not listened and are ploughing on regardless of the views expressed by others, I say that the question of standing was one that was often considered controversial in the reform of judicial review, and the Government initially thought that there ought to be a real connection between the claim and the applicant. The applicant state is referred to by the noble Lord, Lord Pannick. I looked at the White Book as to the summary of the development of the sufficient interest test for standing, and it contained this comment:

“The courts have adopted an increasingly liberal approach to questions of standing over recent years”.

Quite so—but the advantage of having a fairly elastic rule on standing was acknowledged by the Government on the basis that sometimes it is important that these cases are brought forward. It is an indication that the Government are making appropriate responses to the concern that has been expressed.

Some have argued that this clause will add delay to the consideration of judicial reviews by potentially requiring fuller argument at the permission stage. That is in part, as I apprehend it, the basis for Amendments 72 and 73, which would remove the requirement for the High Court or Upper Tribunal to consider a no-difference argument when it is raised by the defendant in the response to the application for permission. The Government consider that it is entirely proper that, when a no-difference argument is made by a defendant, it should be considered by a court or tribunal. I accept that when this argument is raised it requires courts to look at the case and the issues with care, but they do that at the moment. I do not think that that would mean that judicial reviews would become overlong. On the argument being raised more often, I say that it should be put only by defendants sure or confident of their arguments and position; if made without a sound basis, I would expect the courts to look to costs, which would act as a sufficient deterrent. In due course, we will invite the Civil Procedure Rules Committee to create a process that allows for oral arguments on this question at permission. While it would be wrong of me to pre-empt that committee, I am sure that it will be done in a way that makes the procedure straightforward and cost effective.

Amendments 72 and 73 would also remove the duty on the court to refuse permission when satisfied that it is highly likely that in the absence of the flaw complained of the outcome would not have been substantially different for the applicant. Those are, effectively, wrecking amendments. The Government’s view is that in those situations permission should not be granted.

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[Lord Faulks]

I do not think that I can expand much on my previous answer. If it makes no difference, it is true that, as the clause says, no relief should be granted. What I said that I would consider is the question of when it would make no difference but there is some benefit of a declaration or some judgment which reflects the lawfulness, whereby there might be some scope for providing that that should be given in the course of determining the very issue that Clause 64 covers. I think that that is as far as I can go. I shall consider the argument.

[Lord Davies of Stamford]

The Minister seeks to make a distinction between the court’s ability to grant relief and its ability to proceed to make a declaration. That seems an interesting line of approach in the light of the debate that has taken place. Can I therefore put to him the suggestion that I put earlier to the noble and learned Lord, Lord Mackay? Would it not be helpful if the Government—in this case, the Minister—brought in a new amendment at Report that made it clear that, notwithstanding the restrictions that appear to be overwhelming in Clause 64, the court could nevertheless proceed to grant a declaration?

[Lord Faulks]

I am grateful to the noble Lord, but with very great respect I think that we are going over the same ground again. I hear the argument; I have said that I will consider it, but I want to consider it in a way that does not emasculate Clause 64, which is there effectively to prevent cases in which it would make no difference from proceeding to lengthen expensive litigation. But I acknowledge that there is a potential force in the argument made by the noble and learned Lord, Lord Woolf, and picked up by other noble Lords, including the noble Lord, Lord Davies, about the possible benefit of a declaration, whether it is in the form of a judgment reflecting the point that seeks to be established but does not involve the expense and time of having a full-blown hearing. I do not think that I can take the matter any further at this stage.

In the approach that we suggest to what is essentially a desire to get rid of technical objections, we wish to refer to Lord Denning’s reasoning—and I am glad that he was mentioned earlier as he gets insufficient citation in the courts nowadays. He held that the court,

“should not find a breach of natural justice unless there has been substantial prejudice to the applicant as a result of the mistake or error which has been made”.

That is a reference to a case in 1977—

Assisted Dying Bill [HL]

Lord Davies of Stamford Excerpts

Friday 18th July 2014 Lords Chamber

[Lord Davies of Stamford (Lab)]

My Lords, I shall be very blunt. I tend to think anyway that the more important the subject, the more important it is to be direct, clear and unambiguous.

Unless we are killed by a violent accident or taken away by a massive heart attack or stroke, most of us are likely to have a slow death—slow enough to present us with certain theoretical choices. At the present time in this country, we would have two legal theoretical options available to us. One might be to mobilise the whole of medical science and technology with a view to maintaining ourselves alive for as long as possible. That is something which, when the medical profession is determined to achieve it, has some remarkable achievements to its credit. Ariel Sharon was kept alive for many years in an oxygen tent on a life-support machine, and Nelson Mandela for many months. Most people would say that they would not wish to have such an end, which is perhaps quite fortunate, because they are most unlikely to get it if they wanted it. First, the National Health Service could not afford it; secondly, partially perhaps as a result of that fact—I do not know—the general tendency of the British medical profession is not to admit terminal patients to intensive care and to discharge patients from intensive care when they reach the terminal state. I asked some Parliamentary Questions a few weeks ago about the numbers involved, and it is very striking how few people die in this country in intensive care beds compared, for example, with the United States.

In practice, there is just one choice, and it is the choice of palliative care. Palliative care is delivered with great dedication by doctors and nurses all over the country. I have some knowledge of that, having been for many years a patron of a Macmillan nurses hospice in Lincolnshire. Nevertheless, there are two particular problems about palliative care. Towards the end, when symptoms become too distressing and people are vomiting blood, short of breath, doubly incontinent and in great distress, terminal care, if death has not already supervened, tends to end in terminal sedation. Terminal sedation is a euphemism for giving the patient a dose of an opiate—usually diamorphine—or perhaps a barbiturate. It would not be sufficient to kill the patient, because that would be illegal in this country, but sufficient to send the patient into a permanent coma. Then no further means of life support are supplied. There would be no oxygen, no antibiotics, no dialysis—in any case, hospices are not usually equipped to provide that kind of intensive support—and not even any food or water. There is no intravenous feeding at all. I have known patients who took 14 days to die in those circumstances; my mother took several days to die in that terminal coma.

The problem with the terminal coma is again two things. First, it is not always entirely honest. I suppose that many doctors try to explain the scenario to their patients very honestly. Maybe the Supreme Court’s views, expressed the other day, on the necessity of consultation will have some effect, but I suspect that the very last words that many patients hear are more often, “I’ll give you something to make you feel better”, rather than, “I’m going to put you into a coma from which you will never awake”. The latter, unfortunately, is more transparent and frank, but I understand why doctors are reluctant to say it.

The other thing that worries me is the hypocrisy of the situation. It is impossible, under the circumstances I have described, to pretend that doctors have no responsibility for determining the method or time of death of their patients. They do that the whole time. They do it indirectly or passively in the way that I have described. That kind of double-think or hypocrisy is, I say to the noble Lord, Lord Hylton, and others who have made this point, exactly the kind of thing that is likely to undermine confidence in the medical profession in this country. It is very undesirable.

There should be a second option available to us, which I make it clear I would almost certainly choose. That is the right to choose one’s moment of death—to be conscious right up to the last moment if one so wishes and to have one’s family available. I say to my noble friend Lord Winston that, if possible, if you do it in that way—if you know that you will be able to kill yourself at a particular moment of your own choosing, in your own way—you can make sure that all your family are there. That is a very important point for many of us. Then you will not have a situation with a family holding on for days while the patient is in a coma, waiting for the moment. Some of them will probably miss it because they have gone out to get a meal or something of that kind, which would be very distressing for them, quite apart from being very sad for the patient.

Therefore, I believe that the alternative that would be provided by the Bill would be the most dignified way of dying. It is certainly the way that many of us would prefer. It would not be at the expense of the choice of the traditional palliative care method that I have just outlined if patients preferred that. It would be additional. The Bill is permissive: it does not withdraw or abolish any options that currently exist, and I hope it will find favour with your Lordships’ House.