European Union (Withdrawal) Bill

Debate between Lord Deben and Lord Pannick

Wednesday 7th March 2018 Lords Chamber

[Lord Deben]

I fear that my noble friend is not right on that, for two reasons. First, all environmental law in the European Union has been intimately connected with the principles upon which it is based. Indeed, you cannot understand the law unless you understand the principles. That has always been the situation. All we are saying is: let us make our law understandable by the principles to which we have assented and to which, we are told, the present Government wish to continue to assent. The distinction between principles and law is not correct in this case. Secondly, even if he were right—and I am not sure that he and I would always agree on the same aspirations as far as the law is concerned—it is very peculiar for the Government, having said that this is what they want, not to be prepared to put it into the law, because these are the very words to which the Prime Minister and other Ministers have referred. This is a distinction without a difference in this case.

Since my noble friend has raised it, I say that when we voted on these laws—some of which I did as a Minister—we did so on the whole package, which was the principles as adumbrated in the law itself. It is not possible to take the legal bits out without the principles, as he would suggest, because it is the principles that enable one to interpret what the law says. That has always been accepted. The Government, in their statements, certainly gave every impression that that was what they wanted to do. I very much hope that whatever my noble friend says about additionality—

[Lord Pannick (CB)]

I will to try to help the noble Lord out. It is not just what the Government say; it is what is in the Bill. Clause 6(3) makes it absolutely clear that retained EU law must be interpreted,

“in accordance with … retained general principles of EU law”.

The Bill recognises it.

[Lord Deben]

I am so pleased to have been supported by the noble Lord. I was rather afraid that he was going to find something that I had got wrong in the law and I would not like to argue with him, although I have done on occasions, as he knows, because I do not like lawyers to be left to themselves. But he has, with legal elegance, expressed what seems so obvious for anybody who has dealt with European law.

I say to my noble friend is that one of the problems we all have is that those of us who have worked in the European Union, who have argued these laws line by line, and who have worked with our neighbours to do this wonderful thing of bringing countries together to have common laws, encounter the constant difficulty that those who do not like the European Union do not understand the way it is done. Very often, the reason they are opposed to it is because they have never understood the brilliance of the mechanisms that we have there. We may lose them—I say “may”—but we do not want to lose the environmental protection that they have given us.

European Union (Withdrawal) Bill

Debate between Lord Deben and Lord Pannick

Committee: 3rd sitting (Hansard): House of Lords
Wednesday 28th February 2018 Lords Chamber

[Lord Deben (Con)]

My Lords, I draw the attention of the House to my declaration of interests. I declare an interest in the question of waste and I would like to follow on from the noble Baroness.

I am inclined to follow the comments of the noble Lord, Lord Pannick, in dealing with this amendment. My problem with the snapshot concept—although it is the concept—is that it is rather fuzzy at the edges. Unless we think carefully through this, we will find that if we leave the European Union we may have signed up to obligations which we have not had time to carry through but which we intended to carry through. We may also sign up to obligations which, perhaps in retrospect we did not intend to carry through. However, that is unlikely. We may also have signed up to obligations where we had not worked out how we were going to carry them through. So there is bound to be uncertainty at this stage.

I emphasise what the noble Baroness has said: we have worked extremely hard across the board on a number of packages, particularly those concerned with the environment. Her Majesty’s Government have been enthusiastic about most of the elements that that contains. The noble and learned Lord who has replied to the previous two debates has been extremely helpful, not only in explaining to the House where the Government are but in giving us real hope that they will look carefully at the real questions we have raised. It is not a question of whether or not you are in favour of Brexit but of how we get this right. As the Minister has been kind and generous in that way, I hope he will help us to see what we should do. I say to my noble and learned friend that I do not think we should do this, but it is clearly something we have got to do if people are to know where they will stand.

[Lord Pannick]

The noble Lord is undoubtedly right that there will be instruments in Brussels to which we have contributed and which we would wish to incorporate into domestic law. This Bill does not prevent that. It is designed to provide the best snapshot possible, and Parliament is perfectly entitled to—and no doubt will—adopt many other later instruments and incorporate them in appropriate form into domestic legislation.

[Lord Deben]

I agree with the noble Lord, Lord Pannick, on that. However, the problem comes when an agreement is in Brussels and has been agreed by us but the implementation date comes later. That is the part I am particularly concerned with.

I am also concerned to take the opportunity to say to my noble and learned friend that one of the ways in which this Bill can be more readily acceptable is for the Government to be clear with the House. If there were such circumstances, would the Government be prepared to say now that they would seek to implement those things to which they had signed up in advance in a form they would choose? That is not an unreasonable thing to ask the Government to do. Otherwise we will go through this period—it seems as though it will go almost to the end before we know what is going to happen—of negotiating, discussing, agreeing and indeed voting on some of these matters, and no one will know whether, having voted for them, we were then willing to accept them into our own system and law and implement them, having signed up to them.

It would be helpful for all of us who are trying to work these things out and trying to run businesses to remove that uncertainty by committing the Government to say that they will implement what they have signed up to, in a form which they may choose, but under British law.

Policing and Crime Bill

Debate between Lord Deben and Lord Pannick

Report: 3rd sitting (Hansard): House of Lords
Monday 12th December 2016 Lords Chamber

[Lord Deben (Con)]

My Lords, as a non-lawyer, I hesitate to disagree with the noble Lord, Lord Pannick, but it seemed to me that he undermined his case right at the beginning when he said that there were allegations that were ridiculous and had no basis at all, yet the police announced these allegations to the world. I happen to know about this because, as I was seen at the funeral of my late friend and colleague, Leon Brittan, I was for some time followed by certain people claiming that they had evidence of his wickedness. They were silly enough to state that evidence, which was total nonsense. It was without any foundation. It could not have been true.

However, I do not want to talk about my friend. I want to talk about somebody whom I do not know at all, although I have met him: Lord Bramall. The allegation against Lord Bramall could have been proved to have been entirely wrong merely by looking at the date on which it was claimed, because at that point he was in a public place, at which it could not have been as alleged. The issue is not that we wish to restrict the opportunities of giving to others the chance to come forward. It is simply, narrowly, to say that somebody other than the police has to be involved before such an announcement is made in public.

There are too many examples of the police giving information to others in all sorts of circumstances. A relation of mine was in precisely such circumstances. What the police told the press was entirely proper and complimentary, but she did not want that to be given out. But the police did—they were clearly paid for it—and it resulted in a long and extremely congratulatory article. The issue was that the police decided that they would make that decision, when there was no reason for it. That was a happy example, but there are some terrible examples. I say to the noble Lord, Lord Pannick, that we cannot live in a society in which there is no guard against those who give out such information before a charge has been laid.

All we are saying—the two amendments have different ways of doing this and it may be that neither is satisfactory—is that it should not be up to an individual policeman or an individual police force to make this kind of allegation before there is any charge. It should go to someone else. If I may say so to the noble Lord, Lord Pannick, this someone else may not be able to judge whether allowing this will bring forward more witnesses, but what he or she is able to judge is whether it is a load of old rubbish. At least he or she can assess whether what is proposed as the basis for investigation has some foundation. That is why it is perfectly proper to say that a judge or a magistrate might take this role.

I therefore beg my friend—I can call him that because the noble Lord and I are usually on the same side—to recognise that it is too dangerous an insult to the British legal system for people to be seen as guilty when they are innocent on the say-so of an individual policeman. All I am asking is that it should be on the say-so, in the quietness and care of a proper circumstance, of someone whose future does not depend on the publicity, who can look at the evidence and say, “Really, officer, I don’t think there looks like being anything in that because of x, y and z. Perhaps you might find out more about it before you move in this way”. That is what we ask.

[Lord Pannick]

Before the noble Lord sits down, does he think it is in the interests of the potential defendant for a judge to determine that there really is something in the allegations, and therefore to authorise that publicity is appropriate? Is that not seriously damaging to the presumption of innocence?

[Lord Deben]

Not at all. The fact is that what the judge would be deciding is whether that name should be put forward at that point, and in most cases he would probably say no. I can think of very few cases when publishing the name in connection with an allegation would reduce the number of people coming forward if that name were later published at the point of an actual charge. It would therefore affect a limited number; in fact I do not believe there are any in this group. But if there were, I would want someone to be able to say, “In this particular case, it is so important that I will allow it to be done”.

Criminal Justice and Courts Bill

Debate between Lord Deben and Lord Pannick

Monday 27th October 2014 Lords Chamber

[Lord Pannick]

If you give an assurance that the scope of legal aid for judicial review is not being reduced or altered by LASPO, it seems that then introducing regulations which provide that there will be no remuneration for legal aid unless and until leave to move is granted and that there will be no remuneration for legal aid in residence regulations—although I appreciate they have been quashed—is indeed tantamount to reducing the scope of legal aid for judicial review. There is no point in saying that we are protecting legal aid as to scope for judicial review if you do not pay lawyers for providing the legal advice and assistance. That is what legal aid is about. So, with great respect, I do not accept the distinction between scope and remuneration. That simply will not wash, in my respectful submission.

Tonight I am not concerned with inviting the House to consider the merits or otherwise of the Government’s policies. We will all have our own view on the merits of the policy and whether legal aid is too wide or not wide enough. My concern is the constitutional one of whether it is appropriate to amend this important area of the law by secondary legislation in the light of the assurances we were given and when, I suggest, but for those assurances the Government would have had even more difficulty than in fact they had in getting the LASPO Bill through this House.

[Lord Deben]

My Lords—

--- Later in debate ---

[Lord Pannick]

My Lords, your Lordships have heard today that Part 4 of the Bill contains a number of extraordinary provisions. Amendments 178 and 179, the final group of amendments for debate, provide an appropriate finale to our consideration of Part 4 because they address the quite extraordinary powers that are conferred on the Lord Chancellor by Clause 79.

If your Lordships take time to read Clause 79, you will see that the Lord Chancellor is given a power not merely to,

“make consequential … incidental, transitional, transitory or saving provision”,

to none of which I object. He is also given a power to make “supplementary” provisions by subordinate legislation. This power extends, so the Bill says, to amending, repealing or revoking legislation.

These are quite extraordinary powers, as the noble and learned Lord, Lord Woolf, and the noble Lord, Lord Deben, explained to the House in Committee. I can see no justification whatever for conferring such powers on a Minister, far less in the sensitive context of judicial review, which, as your Lordships have heard this afternoon, is an essential element of the rule of law and the purpose of which—or at least one purpose of which—is to control the powers of Ministers. The Minister gave in Committee no explanation that I could understand as to why these extraordinary powers were required. I look forward to hearing his observations tonight. I beg to move.

[Lord Deben]

Happily, I am able to say now what I was going to say earlier, which is that I am one of those people who want to cut the amount of money that we have spent on legal aid. I take a very clear view that it is out of line with the arrangements in any other country that you might like to compare it with and that it is perfectly right for the Government to take those measures. However, that is why the Government should be a little concerned that people who are on their side have found unacceptable the mechanisms by which we have extended the powers of Ministers without due parliamentary control. This is the problem. Ministers should recognise that this is where the difficulty comes.

What we are saying is that the purpose is wholly acceptable but that to give Ministers powers of this kind is unacceptable and, as far as I can see, there is no good reason for doing it. That is the problem for the supporters of the Government and of their stance, which is why it would be helpful if the Lord Chancellor were to understand that we think that Parliament should have control in these very important areas, that we should not leave it to supplementary legislation even if it is of an affirmative kind and that—I am sure that my noble friend the Minister is entirely straightforward in his view about the connections between this and what was promised—when there is a fear that what has been promised has not been carried through, we should err on the side of being careful that Parliament should understand, accept and vote on those matters.

It is a matter not only of morality but of courtesy. I feel that we have not been given the kind of service which it is proper to ask of Ministers on this occasion. As one who supports these measures to a large extent, I am sorry that I shall be put in a position of not being able to support them simply by the mechanisms that have been presented. I suspect that quite a large number of my colleagues on this side of the House who have supported the Government would have been much happier in their support had the presentation been fundamentally different.

Criminal Justice and Courts Bill

Debate between Lord Deben and Lord Pannick

Wednesday 30th July 2014 Lords Chamber

[Lord Deben (Con)]

My Lords, as the House may be aware, I am always unhappy if we have debates that become either a military-fest or a legal-fest—in other words, that the only people who discuss these things are lawyers. I suggest to my noble friend that we have already had sufficient evidence in Committee that there are in the Bill very serious matters over which the House has had very considerable disagreement. I suspect that he knows that Report stage will not be easy on a number of these issues, which reach way beyond party and which are about the nature of civil liberties and this country’s legal system. Therefore, I look at this particular proposal with a considerably jaundiced eye.

I want to say something that he may find inconvenient. There was a time when the Lord Chancellor was very manifestly not a political figure. Yes, he was appointed by the Government and he sat in the Cabinet, but he was seen very clearly as a legal figure. For reasons that I wholly disagree with and are all about a mistaken understanding of these things under the previous Government—this is not a criticism of him or present company—we now have a different situation.

Parts of the article read by the noble Lord, Lord Pannick, point to the position where the Lord Chancellor feels he is able to make statements that can be seen only in a context that is very strongly political. That means that the natural willingness of this House to accord to the Lord Chancellor a different kind of approach from that which one would to the Secretary of State for this or the Secretary of State for that is very much diminished.

Having debated this Bill in such detail and having shown so many moments when noble Lords of very different political views felt unhappy, we then come to this catch-all clause. My noble friend may explain that it does not really mean what it seems to mean. In that case, can we please write it so that it does seem to mean what it ought to mean? But if it does mean what it seems to mean, the Lord Chancellor and the Secretary of State can—depending on what the situation is—make changes subject to the most exiguous parliamentary control.

Having been a Secretary of State, I know very well that once you get a properly worded document and present it in accordance with the rules, it is quite difficult for it not to pass—let me put it as delicately as that. That same element is in this. I thought the noble and learned Lord, Lord Woolf, was more than polite when he reminded us that there was this “saving” bit, because it does not seem to me to be a “saving” bit at all—that it not what happens. Given the mechanisms of the two Houses, if such supplementary legislation is put properly and is not wrong, it will, in normal circumstances, pass.

If my noble friend cannot give the House the assurance that the wording means something wholly different from what it appears to mean, most of us would prefer not to have it at all. We would therefore want to support the noble and learned Lord, Lord Woolf, in his contention, if not now then on another occasion.

[Lord Pannick]

My Lords, I added my name to the amendment in the name of the noble and learned Lord, Lord Woolf. I entirely agree with the observations made by the noble Lord, Lord Deben. My concern is that the power the Lord Chancellor has under Clause 73(1) extends not only to “consequential” provisions, which is understandable, or to “incidental”, “transitional” and “transitory” provisions—again, entirely understandable —but to anything that is supplementary. That is an extraordinarily broad power: a power to make supplementary provisions.

In other words, as I understand it, if the Lord Chancellor believes that anything falls within the scope of the general area or subject matter of the Bill, he may, by subordinate legislation, make provision to supplement that which Parliament has anxiously debated and may have amended and approved. Under Clause 73(2), this power extends to repealing and revoking legislation. That is a remarkable power. I can see no reason whatever why such a power should be enjoyed, far less in the context of the very sensitive and delicate issues addressed by the Bill—including, but not only, those in Part 4.

Marriage (Same Sex Couples) Bill

Debate between Lord Deben and Lord Pannick

Wednesday 10th July 2013 Lords Chamber

[Lord Pannick]

My Lords, I agree with the noble Lord, Lord Lester of Herne Hill, though possibly not in relation to the Kama Sutra. The point being made by the noble Lord, Lord Armstrong of Ilminster, as I understood it, was that provision should be made in this Bill to confer power to address problems that may arise in consequence of this Bill when enacted. Of course, Clause 15(2) already does that. It says:

“The Secretary of State or Lord Chancellor may, by order, make such provision as the Secretary of State or Lord Chancellor considers appropriate in consequence of this Act”.

For the avoidance of doubt, Clause 15(3) states that any such provision that may be made,

“includes provision amending UK legislation”.

That would seem to me amply to address any concerns.

[Lord Deben]

Perhaps I may say just one thing because I was attacked—not attacked, but charmingly referred to—by the noble Baroness, who said that I was being a bit jokey about adultery. I really was not being jokey about adultery. I think that I am coming back to my mother again on this. What is being proposed here is another version of the amendments that we have had all along. This one says: “We cannot find anything at the moment, but we might find something in the future. So in case we do find something in the future, we will put something in at the moment—and by the way, that means that we can point to the thing that we put in at the moment, which shows that there is a difference, and that is what we meant in the first place”. I am not a lawyer but, if I may dare say to the two noble lawyers who went before me, I do not need to refer to the law. All I can say is that this is one of the most ingenious attempts that we have had so far. I do not think that they can do it again, but it is another go. Even if it has been charmingly presented by the noble Lord with such elegance and beautiful English, for which we all honour him, the fact is that it will not wash. It is another go. Let us not take it, and if it is voted on, let us increase the majority to more than the 200 that we had last time.

Marriage (Same Sex Couples) Bill

Debate between Lord Deben and Lord Pannick

Monday 8th July 2013 Lords Chamber

[Lord Pannick]

My Lords, I, too, cannot support this amendment. Under existing law, if a married man has a sexual relationship with another man his wife cannot sue for divorce on the ground of adultery. She can sue for divorce on the ground of unreasonable behaviour, based on sexual infidelity. As I understand it, the Bill adopts the same approach in relation to same-sex marriage and sexual infidelity with another same-sex partner. This seems to be consistent with existing legal principle. It involves no detriment whatever to the other party to the marriage, who can obtain a divorce on the basis of unreasonable behaviour. I, too, am concerned about the uncertainty inherent in the noble and learned Baroness’s amendment. What is,

“a sexual act … similar to adultery”,

in the case of lesbians?

[Lord Deben]

My Lords, my mother was always rather diffident about what she referred to as “things down there” and I rather feel that the noble and learned Baroness has attempted to recreate my mother’s views in what she has tried to say here. I find it hard to believe that a definition of a sexual act similar to adultery is one which is precise enough, even for the most learned of Lords. I feel that it does not achieve anything. We have another way of dealing with these things and, if I may say so, a rather more all-embracing and less detailed way of doing so. I am not ashamed to understand that Ministers have discussed this and have come to the conclusion that none of them want to produce anything more precise than has been produced. I have sympathy with them; we all should have.

Marriage (Same Sex Couples) Bill

Debate between Lord Deben and Lord Pannick

Monday 8th July 2013 Lords Chamber

[Lord Pannick]

I am not aware that judges have an ability to refuse to hear and determine cases on the basis that they disapprove of the particular law of the land that they are charged with the duty to enforce. They accept as part of the job that their job is to apply the law; the law is made by Parliament.

[Lord Deben]

I believe that on this occasion we should remember what we have just done. We have just asked those who disagree with the view that I and others have taken, to understand why it is that marriage has to be the same for both single-sex and opposite-sex couples. Those of us who have done that have now got to think carefully about opposing this amendment. I support this amendment because I think generosity ought to be at the heart of everything that we do. I do not understand why it is unreasonable to say that those people, who took on a job with particular rules and very clear circumstances, should now be unable to carry through that job in the context of wider views and beliefs. It seems to me a very small thing indeed, but it is crucial to say this about the society we live in.

I remember the disgraceful behaviour in a previous Bill because of which many children have not had the opportunity of being adopted because we did not allow those for whom this was a matter of belief to continue to run adoption agencies unless they were prepared to offer for adoption children from same-sex marriages. As all those agencies always passed people on to those adoption agencies that did do that, there was no reason to do it, except that sometimes we mistake toleration for agreement. In other words, what we mean by toleration is that we should tolerate those things with which we agree. I think toleration is about being prepared to tolerate those things with which we do not agree.

I cannot see the comparison between the judge and the registrar. The job of the judge is consistently and continuously to interpret the law. He or she knows from the moment when they accept being a judge that that is what their job will be. They know that in future there may well be laws with which they do not agree, so it is perfectly proper to insist that they should use their technical ability to impose sentences for things which perhaps they feel ought not to be crimes or, the other way, to be less strict on things which they think ought to have been much better assessed by Parliament. But that is not true of registrars who are now registrars. There must be many who never thought that this change would take place. It has been a remarkable change in human society. It is one I wholly approve of, but I cannot pretend that it has not been very rapid.

Therefore, I ask this House to accept this in the same spirit that we who have sought to get this Bill through have asked others to accept something that is so different from the way in which they have previously thought. I hope that we will be magnanimous and generous enough to say that this is, after all, something that could properly be done, because it will not be for ever; it is merely referring to those people who are now in place. I would have much more difficulty were it not doing that. It seems to me that we ought to be a society capable of including this because, if we are not, we give to those who do not want the changes here every reason to believe that we have put intolerance in the place of a liberal approach.

I hold it to be one of the great achievements that we have reached this way of looking at our fellow citizens. We ought also to think of those who through no fault or choice of their own were unable to imagine that they would now be asked to do this. After all, it is a terribly simple matter. We are just making sure that, when such a thing arises in a registrar’s office, Mrs Jones or Mr Smith is not asked to perform that particular ceremony. If this House cannot see that that is the same spirit as the spirit that puts this Bill through, we must be much mistaken.

Marriage (Same Sex Couples) Bill

Debate between Lord Deben and Lord Pannick

Wednesday 19th June 2013 Lords Chamber

[Lord Deben]

My Lords, this is entirely misconceived. This Bill is not about blessings. The church has a right to bless or not as it likes. In my case I am referring to the Catholic church, and not the Church of England, and you can bless without any difficulty. The idea that somehow by refusing a blessing you would be subject to the law because of this Bill seems totally fallacious. You might be subject to the law according to other Acts, but we have not found that, and if you want to change those Acts, no doubt that would be sensible. But really, this is otiose. That is what worries me. It seems perfectly proper that people who disagree with the vast majority of both Houses on this subject will seek proper protection in areas where one might be uncertain. However there is also a degree of courtesy—I am sorry to have raised that word because it will now dog me for the rest of my life—about not loading this Bill with all kinds of statements about how you do not want to be pressed in this or that way.

It is quite clear what a blessing is. It is something which the churches give as a generous offering to people who ask for it. There is no compulsion; they do not have to do it. If they refuse it, as they can in many cases, there is no question of there being any recourse to law. My father was an Anglican clergyman; he would give blessings in certain circumstances and not in others. That was because in some circumstances he thought they were suitable, in others he thought they were not. Nobody could, would, or should ever have taken him to court. Imagine the court case: “Well, old father, what did you do this for?” and the response, “These two people have been living with other people as well at the same time and so I decided not to give them a blessing”. On what possible basis does the court then say, “You should have given them a blessing”?

I say to the noble and right reverend Lord, Lord Carey, that we have to be very careful. There is a great deal of unhappiness among decent people about the attitude of some churchmen to this Bill. Therefore, for goodness’ sake, do not let us load this Bill with all sorts of bits and pieces which are not necessary. Let us protect people where the Bill affects them. Do not let us try to protect people where the Bill does not affect them, otherwise we will be doing something which is the bane of American legislation: because there is no concept of the Long Title, you can add anything you like to any Act. You say, “If you want me to vote for this, I want you to include my bit about a bridge in my constituency”. I fear that this is precisely that kind of addition. It seeks to squeeze something into the Bill which has nothing to do with it at all.

Lastly, I will say why this is very serious. If we are to take seriously the contention of some churchmen that same-sex marriages are uniquely unacceptable, those same churchmen have to be very careful that they do not spread that unacceptability to other things. A blessing is manifestly something which the churches have used to overcome the reality of pastoral care as against the reality of doctrinal belief. It ought to stay there. The last place where it ought to be reflected is in the legislation of this House and of this Parliament. Blessing is a mechanism whereby the Church of England, for example, has overcome the fact that doctrinally it believes that marriage is indissoluble, but on the other hand it has to deal with marriage as it is. That is what blessing is. Do not, for goodness’ sake, try to muck this up by adding to this Bill something which is entirely extraneous.

[Lord Pannick]

My Lords, this amendment is concerned with Section 29 which is related to the exercise of public functions. Whether you give a blessing or not is plainly not a public function, it is a religious function. It is subject to a higher authority, no doubt, but that higher authority is not the Queen’s Bench Division, the administrative court and the Court of Appeal. It would be very damaging indeed to religious bodies for this legislation to suggest that Section 29 could apply to the exercise of what are plainly and simply religious functions.

Growth and Infrastructure Bill

Debate between Lord Deben and Lord Pannick

Wednesday 6th February 2013 Lords Chamber

[Lord Deben]

The noble Baroness, Lady Turner, speaks from her seat, but she has put forward some opinions that I have not heard since 1945. I am not on that side but I still do not see this. I hope that the Government will help those of us who are naturally on their side to get out of this miasma—this difficulty of understanding the connection of the two halves. I have great sympathy with the question asked earlier by the noble Baroness, Lady Warnock. What is the connection and how will it improve things, one by one? I am very ready to be converted but at the moment I am finding it rather difficult.

[Lord Pannick]

The noble Lord, Lord Deben, posed a series of questions about the benefits of Clause 27. Perhaps I may add to the burdens on the Minister, who is playing a very straight bat—he would be a credit to the cricket team of the noble Lord, Lord Strasburger. I will put these questions to the Minister in the hope that he can explain whether the Government have taken account of two very troubling legal consequences that will follow from the current contents of Clause 27 and which are relevant to the amendments in my name and that of the noble Lord, Lord Adonis.

First, some of the rights that the employee or prospective employee is being invited to sell are concerned with issues that are particularly sensitive in anti-discrimination law. There is the right to request flexible working, which is obviously of particular importance to working mothers—as is the eight-week notice period that would be imposed for the return to work after maternity leave. These are very sensitive matters. It is inevitable that employers who seek to rely on an agreement which purports to override rights in this context will face legal challenges under EU law, the expense of which will far exceed the amounts that they would pay to employees for giving up those rights. Have the Government taken that into account in deciding on the merits or otherwise of Clause 27?

I would be grateful if the Minister would comment also on a second legal implication. If the law allows for the sale of unfair dismissal and redundancy rights, it is inevitable that aggrieved employees, when they are dismissed or made redundant at some stage in future, will not go quietly. Having sold their unfair dismissal and redundancy rights, they will formulate their grievances by reference to whatever legal avenue has not been sold. Nothing in Clause 27 affects—and because of EU law nothing in Clause 27 could affect—their rights of protection under anti-discrimination law. So instead of claiming unfair dismissal, or seeking compensation for redundancy, the aggrieved employee will contend that the dismissal or redundancy was based on a prohibited ground. Therefore, my second question to the Minister is whether the Government have really taken into account that any employer that enters into one of these agreements—and it seems highly unlikely that there will be many of them—will not be protecting themselves against the litigation that will result when an employee is dismissed or made redundant in future.