Rule of Law: Law Officers
Lord Falconer of Thoroton Excerpts(4 years, 3 months ago)
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Lord Keen of Elie (Con)
My Lords, I would find it difficult to disagree with any of the observations made by my noble friend. Of course, we must advise Government—as we would advise others—to temper the rule of law at the level of both domestic and international law. I have to say to this House that, in my opinion, the present Bill does not of itself constitute a breach of international law or of the rule of law.
Lord Falconer of Thoroton (Lab)
The key characteristic for law officers is not brains—they can get all the advice they want from the English Bar or the lawyers—but backbone. The Secretary of State for Northern Ireland confirmed that a breach of international law would be caused by the passage of the United Kingdom Internal Market Act under Article 4 of the withdrawal agreement.
The Advocate-General produced a load of rubbish to the EU withdrawal committee this morning when he said that Article 16 justified saying that it was not a breach. The party that changes its story on the law—as this Government do—shows it lacks backbone. How does the Advocate-General feel able, consistent with personal honour and professional duty, to remain as Advocate-General?
Lord Keen of Elie (Con)
My Lords, let us be clear that I have satisfied myself as to the correct legal position in this context. As I indicated to the EU Justice Sub-Committee this morning, it is my view that the Secretary of State for Northern Ireland essentially answered the wrong question.
Lord Keen of Elie (Con)
I hope that the noble and learned Lord has not become unwell in view of the noises emanating from him—but, if he has, I wish him well for the future.
Let us be clear that we are in a situation where we have rights under an international treaty. Those rights include our response to any breach of obligations by the counterparty, be that a lack of good faith or such action as would fundamentally alter the obligations under the treaty, giving rise to a position—under Article 62 of the Vienna Convention—where we could withhold our operation of the treaty.
It has been suggested to me by no less a legal authority than the noble and learned Lord, Lord Falconer of Thoroton, that we can simply rely on Article 16. This has immense novelty value. The idea the Executive can enter into a treaty at the level of international law and then rely on that to displace primary legislation passed by the domestic Parliament is, I respectfully suggest, extraordinary. That requires these mechanisms in the UKIM Bill to address the contingency of a material breach that we need to address.
Rape: Prosecutions and Convictions
Lord Falconer of Thoroton Excerpts(4 years, 3 months ago)
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Lord Keen of Elie (Con) [V]
My Lords, wrongly and deliberately accusing someone of a sexual offence is a very serious matter and should be treated as such by criminal law. Clearly, the impact on those falsely accused and their families can be devastating. Fortunately, these cases are extremely rare and should not distract us from the need to support genuine victims of such crimes to come forward and feel confident that they will be listened to.
Lord Falconer of Thoroton (Lab)
Something is going wrong here. As my noble friend Lady Gale said, in 2019-20 there were 55,000 rapes recorded by the police, with just 2,102 prosecutions and 1,439 convictions; yet three years earlier, there were 44,000 recorded rapes with 5,000 prosecutions and nearly 3,000 convictions. The dramatic drop in prosecutions and convictions is put down by Sarah Crew, the most senior police officer for rape in England and Wales, to the Crown Prosecution Service increasing the standard before it will prosecute. This has led also to the police submitting fewer cases to the CPS, because they know it will not prosecute. What changes to the approach on rape prosecutions did the CPS adopt between 2016-17 and 2019-20, and has its approach now changed again?
Lord Keen of Elie (Con) [V]
My Lords, there has been no material change to the CPS’s approach. The evidential stage of the code test remains as it was, despite some suggestions to the contrary. Indeed, the most recent inspectorate report, in 2019, observed that the code test was being applied correctly in 98% of cases. But I acknowledge that we face challenges in this area, and we are seeking to address them, as I say, by way of a joint inspectorate examination of the issue and a cross-government review of how we can improve matters.
Rule of Law
Lord Falconer of Thoroton Excerpts(4 years, 3 months ago)
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Lord Falconer of Thoroton
To ask Her Majesty’s Government, further to the remarks made by the Secretary of State for Northern Ireland on 8 September confirming that certain provisions of the United Kingdom Internal Market Bill relating to the Northern Ireland Protocol would “break international law” (HC Deb, col 509), whether they are committed to the rule of law.
The Advocate-General for Scotland (Lord Keen of Elie) (Con) [V]
My Lords, the Government have not proposed any breach of UK law. On occasions, tensions can arise between our domestic obligations and our international commitments and we will always seek to resolve these, as we have in the past. The freedoms and protections that we all enjoy rely on the rule of law; it is an important constitutional principle and, as a responsible Government, we remain committed to it.
Lord Falconer of Thoroton (Lab)
I am grateful to the noble and learned Lord, the Advocate-General, for that Answer. Brandon Lewis’s acceptance that this Government are deliberately breaking international law will be thrown in the UK’s face for years. Expect dictators to justify murderous breaches of international law by relying on the Lewis mantra: “specific and limited”.
Demanding compliance with anti-Covid measures, yesterday the Prime Minister said:
“We expect everybody … to obey the law.”—[Official Report, Commons, 9/9/20; col. 608.]
The Home Secretary condemned Extinction Rebellion for law-breaking. The rule of law is not pick and mix, with acceptable laws chosen by the Home Secretary or an adviser in No. 10. This stinking hypocrisy chokes our country’s reputation and destroys our Government’s ability to lead at home and make agreements abroad.
In June 2018, the noble and learned Minister, a law officer, whom I am surprised to see in his place, lectured on the importance of law, describing the law officers as
“champions of the … law within government”,
and said that their
“duty … is to ensure that the Government acts lawfully at all times”.
Jonathan Jones agreed and left. Law officers and the Lord Chancellor must stand by their self-proclaimed duty or leave. Otherwise, they will be dismissed as long on self-importance and short on the backbone that their great offices require.
I have two questions. First, how is the admitted breach of international law consistent with the UK’s commitment to the rule of law? Secondly, on what basis does he, as a law officer, remain part of the Government?
Lord Keen of Elie (Con) [V]
My Lords, I think the noble and learned Lord broke up slightly when he was asking his second question, but I certainly understood the drift of his remarks.
Lord Falconer of Thoroton (Lab)
Secondly, on what basis does he, as a law officer, remain part of the Government?
Lord Keen of Elie (Con) [V]
I thank the noble and learned Lord.
My Lords, from time to time, as I indicated, tensions occur between our domestic legal obligations and our position with regard to international law. Indeed, in 1998, the then Labour Government passed the Human Rights Act, including Section 19 that required statements of compatibility to be made when Ministers introduced legislation. Interestingly enough, Section 19(1)(b) had an alternative statement, which required the Minister to say that
“he is unable to make a statement of compatibility”
with our international obligation but that
“the government nevertheless wishes the House to proceed with the Bill.”
In 2002, the Labour Government introduced the Communications Bill with just such a certificate, because it was perceived that Clause 309 of that Bill could be considered to violate our international obligations under Article 10 of the convention. From time to time, we face these tensions.
Here, there is a very real tension between the direct effect of EU law pursuant to Article 4 and what would occur if we had no agreement at the end of the transition period and there was no determination by the Joint Committee as to the way forward under the Northern Ireland protocol. That is because there are other provisions apart from Article 4. There is Article 4 of the protocol itself, which determines that Northern Ireland is part of the UK’s customs area. There is Article 16 that deals with societal and economic pressures that could lead to us being in breach of the Belfast agreement. All these have to be considered.
Against that contingency, Ministers considered it appropriate to provide, or ask Parliament to provide, a means of addressing these issues. At the end of the day, it will be for the sovereign Parliament to determine whether Ministers should be able to deal with such a contingency. Indeed, it will be for this House to determine whether it considers it appropriate for Ministers to be able to deal with such a contingency.
In these circumstances, I continue in post and continue to advise, encourage and stipulate adherence to the rule of law—understanding that, from time to time, very real tensions can emerge between our position in domestic law and our position in international law. It is not unprecedented for legislation passed by this Parliament to cut across obligations taken at the level of international law. In those circumstances, domestic legislation prevails.
Human Rights Act 1998 (Remedial) Order 2019
Lord Falconer of Thoroton Excerpts(4 years, 3 months ago)
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Lord Falconer of Thoroton (Lab)
I strongly agree with the noble Lord, Lord Marks, that this a very clear example of it being for the UK legislature to decide, where there is an incompatibility, whether to change the law. It is not something that comes because of the European Court of Human Rights reaching that conclusion; it is because Parliament decides. I strongly endorse what he said in relation to that.
I strongly agree with the noble and learned Lord, Lord Mackay of Clashfern, the noble Lord, Lord Marks of Henley-on-Thames, and the Government that Section 10(1)(b) and Section 10(2) of the Human Rights Act, which refers to legislation that is incompatible, do not contain any reservation for the Human Rights Act itself and therefore, as a matter of construction of Section 10, it is possible to use the Section 10(2) power in order to amend the Human Rights Act itself. I too have read Professor Ekins’s suggestion that that is wrong. Honestly, I do not think there was anything at all in the points he was making, and I agree with everybody else’s point in relation to that.
I have two concerns. I was very glad to hear the noble Baroness say that the Government were very concerned about judicial immunity. If you are a judge and think that you might be sued because of a decision you make in good faith—we are dealing here only with decisions made in good faith—that might inhibit the decision you reach. The noble Lord, Lord Thomas of Gresford, made it pretty clear that a judge could, himself or herself—or themselves, if it is the Court of Appeal or the Supreme Court—be sued in relation to this. I would be very grateful to hear what reassurance the noble Baroness can give. She said that judges would be “properly protected” and so it would be very difficult to sue them in their own names, and that there would be no question but that—assuming that they had acted in good faith, because that is the only circumstance in which this applies—they would be indemnified if they were sued in person. Any reassurance the noble Baroness can give in that respect is very important.
The second issue I would like to raise is this. My understanding is that the reason judgment was found against the United Kingdom in Hammerton v United Kingdom is that the consequence of the judge not according Mr Hammerton legal representation was, as the High Court of England and Wales found, that he spent more time in jail for contempt than he otherwise would have. No appeal putting it right can compensate someone for spending time in jail when they should not have.
The one area where I would be interested to know what the Government say is what happens when a court order leads to the disclosure of information that might be in breach of Article 8—where information that should be kept private as a matter of Article 8 is then made public as a result of a court order, but, if we assume that the court order is then reversed in the Court of Appeal, the information has been made public as the result of a judicial act. What do the Government say is the position in relation to that? Assuming that the judge of the court has acted in good faith in the circumstances I posit, is that something in respect of which there would be no remedy at the moment? Is that something the Government are looking at, or is there some effective remedy under Article 13, and therefore one would not need to worry about it?
Baroness Scott of Bybrook (Con)
My Lords, I am very grateful to noble Lords for their contributions to this debate. I will try to answer as many questions as I can and if I have missed anything, we will look through Hansard tomorrow and make sure that noble Lords get a written response, a copy of which I will put in the Library.
A number of themes came out of this debate, the first of which was using primary legislation rather than a remedial order. A number of noble Lords, including the noble and learned Lord, Lord Falconer, and the noble Lord, Lord Marks, said that this is exactly the type of situation that the Section 10 power was created for: where very narrow and targeted amendments are being made to address incompatibilities that have been identified by the courts. I would also say that the JCHR has scrutinised the draft SI and agrees that it is an appropriate use of the power to make a remedial order. It is for Parliament, of course, to decide whether or not to approve it. While I am talking about this, I thank the noble Baroness, Lady Massey, and others who were on the JCHR and who had to look at these orders twice: the Government appreciate their work and we thank them for their recommendations.
The second theme that came up, and related to that, was the power of the Secretary of State. My noble and learned friend Lord Mackay brought up the Secretary of State having vires to amend the HRA itself via remedial order. The Government have considered this question very carefully and are confident that this is an appropriate use of the remedial order-making powers.
The power is unusual in that it requires a court decision and it is intended for, and limited to, removing an incompatibility identified either by a domestic court or by a Minister having regard to a finding of the European Court of Human Rights. I hope that helps my noble and learned friend Lord Mackay of Clashfern to understand that, as I am sure he does.
The scope of the remedial order came up a number of times. The noble Baronesses, Lady Ludford and Lady Massey, asked whether it was too narrow. The JCHR’s first report recommended the Government consider redrafting the order to make the damages available for any breach of human rights caused by a judicial act where otherwise there would be a breach of Article 13, whether or not that leads to detention. This is why the Government redrafted the remedial order with a slightly wider scope; we accepted that other situations could arise outside the committal proceedings, where a judicial act made in good faith could amount to a breach of Article 6, where that breach could result in the victim spending longer in detention than they should have done, and where damages would be unavailable, contrary to Article 13.
Any widening of those circumstances in which a remedy in damages is available in respect of a judicial act done in good faith should, we consider, be approached with caution because of the risk of the erosion of the principle of judicial immunity, which the noble and learned Lord, Lord Falconer, and the noble Lord, Lord Marks, brought up very strongly, as did my noble and learned friend Lord Mackay of Clashfern.
In the report on the redrafting of the remedial order, the committee welcomed our acceptance of its recommendations and it has recommended that it should go through Parliament. This was very welcome.
The noble Lord, Lord Thomas, had a question on the violation of convention rights by judges and hoped that this would not happen again, as in Hammerton v United Kingdom. I assure the noble Lord that training and guidance are available to the judiciary; the Judicial College has published an Equal Treatment Bench Book, which builds on judges’ understanding of fair treatment. That should put the noble Lord’s mind at rest that we are doing something.
The noble Lord, Lord Blunkett, brought up again the question of whether this should be in primary legislation or an approved remedial order. I hope noble Lords will accept that this is exactly the type of situation that the Section 10 power was created for: making an order to address incompatibilities.
There was quite a lot of debate about judicial independence and immunity, particularly, and understandably, from the noble and learned Lord, Lord Falconer of Thoroton. Judicial immunity is a key aspect of our judicial independence. He is quite right: an independent and impartial judiciary is one of the cornerstones of our—or any—democracy. One of the practical ways in which this is given effect is by giving judges immunity from prosecution or civil proceedings for any acts they carry out in performance of their judicial function. If he would like me to, I am very happy to write from the department about exactly what effect this will have and to put his mind at rest. We can do that after this Committee.
I think that is all that I had to specifically respond to. I reiterate that this order is the right way to implement the judgment; it reflects a pragmatic approach. I think that the noble and learned Lords, Lord Falconer of Thoroton and Lord Mackay of Clashfern, and the noble Lord, Lord Marks of Henley-on-Thames, and others, agreed that this reflects a pragmatic approach and ensures that we meet our international legal obligations—which we have to do—while still upholding the principle of judicial immunity. I therefore commend the order to the Grand Committee.
Fatal Accidents Act 1976 (Remedial) Order 2020
Lord Falconer of Thoroton Excerpts(4 years, 3 months ago)
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Lord Falconer of Thoroton (Lab)
I thank the Minister for introducing this with such clarity and skill. I welcome the change that the remedial order makes, which means that non-married and non-civil partnership couples benefit from the entitlement to bereavement damages if one of them is tragically killed. I also very much echo the need for full-scale reform of the Fatal Accidents Act 1976 which, for the reasons given by earlier speakers, is an archaic piece of legislation and can be very hurtful.
I wish to focus on this particular remedial order. I suggest that there are three things that it could have covered, so I wish to ask the Minister why it does not cover those things and if she can make inquiries to see whether an additional remedial order could be introduced to cover these matters.
The first matter was mentioned by earlier speakers and concerns the two-year period. When somebody enters into a civil partnership or a marriage, they become entitled immediately to the damages that the Fatal Accidents Act 1976 gives, yet if you co-habit with somebody, you do not get that entitlement. I see the issues that might arise in relation to proof, but why was it not possible to say that after two years it is automatic and prior to two years the position has to be proved to the satisfaction of the defendant or, if they do not agree, to a court? The Joint Committee on Human Rights referred to the example of Amelia, who had lived with her partner Jordan for 18 months when he was killed in a car crash. She was 29 weeks pregnant at the time of his death; she was not entitled to bereavement damages and would not be under this change. Can this not be changed? What is the basis for it?
The second matter concerns shared damages. There could be the most acrimonious divorce of all time going on when a partner who has been in another relationship for a long time—as well as the person with whom he or she is engaged in that divorce—is killed, and yet the bereavement damages are shared. The purpose of bereavement damages is to compensate people for the grief that they suffer. Why have the Government chosen this route rather than a different one? Again, that could have been dealt with by this order.
The third issue is the inequity of a father who loses a child and is not married to their mother not being entitled to any bereavement damages. That is not good. It could have been remedied in the light of the Smith decision, because it is precisely this sort of inequity that the court identified in the course of the judgment.
Can the Minister indicate why those three things have not been covered and can she give us some indication that she might take them back to the Ministry of Justice? Perhaps an additional remedial order could be advanced because I think that everybody in the room, and probably in the country, would strongly support those three changes.
Covid-19: Prisoners
Lord Falconer of Thoroton Excerpts(4 years, 5 months ago)
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Lord Keen of Elie
My Lords, I am perfectly content to take further questions on this issue as we seek to implement some of the recommendations of the IAP report. As I indicated, it has already been the subject of consideration at a joint sub-committee ministerial meeting and we are taking forward some of the recommendations. I have mentioned two; the others I would mention are improvement in family contact, and the introduction of bereavement support and counselling for prisoners.
Lord Falconer of Thoroton (Lab) [V]
I congratulate the independent advisory panel on its report. One problem at the moment, because of coronavirus, is the fact that there are very few jury trials or magistrates’ courts trials, the consequence of which is that more prisoners are spending longer on remand. Can the Minister describe to the House what steps have been taken by the Prison Service to facilitate having more, and quicker, jury trials and magistrates’ courts trials, in particular by facilitating video links to prisons, courts in prisons and lawyers being able to take instructions from people remanded in custody?
Lord Keen of Elie
My Lords, the Prison Service is not directly facilitating the issues relating to jury trials, but we are taking steps to introduce additional courts so that we can, essentially, restart and develop the criminal justice system.
Private International Law (Implementation of Agreements) Bill [HL]
Lord Falconer of Thoroton ExcerptsMonday 29th June 2020
(4 years, 5 months ago)
Lords ChamberRead Full debate Private International Law (Implementation of Agreements) Act 2020 View all Private International Law (Implementation of Agreements) Act 2020 Debates Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: HL Bill 115-I Marshalled list for Third Reading - (24 Jun 2020)
The Advocate-General for Scotland (Lord Keen of Elie) (Con)
My Lords, I am grateful to the House for Members’ engagement on the Bill throughout its passage. The amendments in this group are all consequential on the removal of the delegated power contained in the former Clause 2 of the Bill. I am moving Amendment 1, and support Amendments 2 and 3, as the provisions to which they relate do not function without the delegated power.
Before I turn to the detail of the amendments, I wish to make clear from the outset that we believe that the delegated power contained in the former Clause 2 of the Bill was a necessary, proportionate and constitutionally appropriate measure, for the timely implementation in domestic law of future private international law agreements which the Government had decided that the UK should join. Subject to a successful application, this could have included the Lugano Convention 2007.
Any decision for the United Kingdom to join a treaty or agreement in this area of law would still have been subject to successful completion of parliamentary scrutiny procedures under the provisions of the Constitutional Reform and Governance Act 2010. The former delegated power in the Bill did not alter the well-established approaches to parliamentary scrutiny of treaties and wider ratification processes under CRaG. Instead, it was simply a mechanism to draw down the treaty obligations into domestic law in readiness for ratifying the treaty.
I will now speak to Amendment 1, in my name, which seeks to remove from the Bill subsections (2) and (3) of Clause 2, formerly Clause 3, which establishes the Crown application of the Bill. These provisions were consequential on what was, originally, Clause 2, containing the delegated power. They provided that regulations made in the exercise of the delegated power in former Clause 2 could bind the Crown, subject to exceptions which reflect those contained in Section 51 of the Civil Jurisdiction and Judgments Act 1982, as referred to in subsection (1).
The Government are bringing forward this amendment to remove these subsections from the Bill, as these two interlinked provisions were originally intended to apply to regulations made under the delegated power and therefore serve no function following its removal. As I have indicated, this is purely to ensure that the Bill is workable for its introduction into the other place, given the outcome of our deliberations in this House.
I have also put my name to Amendment 2, in the name of the noble and learned Lord, Lord Falconer of Thoroton. The amendment seeks to remove Schedule 6 from the Bill. It details how the delegated power could be exercised in practice, including the parliamentary procedures to be followed for making regulations. I accept that the House has made its view clear, and without the delegated power in the former Clause 2, Schedule 6 serves no useful purpose. In these circumstances, purely to enable the tidying up of the Bill, we support the amendment to remove Schedule 6 from the Bill at this point.
Amendment 3, also in the name of the noble and learned Lord, Lord Falconer, seeks to amend the Long Title of the Bill. Again, this is a consequence of the removal of the delegated power. Given that the new title more accurately reflects the content of the Bill as amended by the House, namely the implementation of the 1996, 2005 and 2007 Hague Conventions under Clause 1, in these circumstances the Government are content to support the amendment.
I beg to move.
Lord Falconer of Thoroton (Lab)
I am obliged to the noble and learned Lord. There is no dispute between us; all three amendments should be approved, to reflect the changes resulting from removing the wider power. The Minister repeated his argument for why that power should be there. We have had this argument three times now. It was rejected when he put it to the Delegated Powers Committee, rejected when it was put to the Constitution Committee, and massively rejected when it was put before your Lordships’ House, so there is no point repeating it again.
The Minister said that we should be dealing with subsequent conventions by secondary legislation. We have made amendments in this Bill to the three conventions that we are bringing in today. We could not have done so if his Clause 2 powers had been there. I hope that he will bring back what was the view of everybody in the Chamber, apart from him—namely that the Clause 2 power should not be there.
Lord Garnier (Con) [V]
My Lords, as is often the case with legislation bringing treaties into domestic law, the meat of this Bill is to be found in the schedules rather than the clauses. Unfortunately, there was some gristle in Clause 2 that made it less palatable. That said, there has been a universal desire to see the three conventions in question come into our post-EU domestic law, and, subject to the already-announced recognition of the points made on Report on 17 June by the noble and learned Lord, Lord Wallace of Tankerness, in relation to the Hague Convention 2000, the real substance of this Bill has been agreed. I congratulate my noble and learned friend the Advocate-General, who has been carrying the Bill more or less on his own.
However, I also commiserate with him on coping with the gristle. He has not looked, still less asked, for sympathy from any of us. I dare say that he might have hoped for more voluble support from this side of the House, but as the experienced advocate that he is, he has not revealed his disappointment, even when the noble and learned lord, Lord Mance, disobligingly compared him to Monty Python’s armless and legless Black Knight.
Unquestionably, the provisions in Clause 2, which gave the Executive the extensive future law-making powers originally in the Bill, have been shown to be constitutionally awkward and unwelcome, by the Constitution Committee, the Delegated Powers Committee and contributors to these debates. When the Bill goes to the other place, I trust that the Government will not use their large majority there to restore the Bill to its original form.
Having said that, I would not want the noble and learned Lord, Lord Falconer of Thoroton—who is just as much a politician as he ever was in government 15 years ago—or the Labour Party, to claim that the amended Bill shows them in an altogether angelic light. In these proceedings they have no halo to burnish. As they know only too well, and as was graciously accepted by the noble Lord, Lord Blunkett, in Committee, there were times when the noble and learned Lord, Lord Falconer, and his colleagues in government enthusiastically gave the Executive extensive Henry VIII powers—powers he now decries. The same could be said of my Liberal Democrat partners in the coalition Government and, I readily confess, of me.
However, let us in a Bill of this type and content, cast political point-scoring aside and do two things. First, we should send this Bill to the other place with our strong advice that those Henry VIII powers that were once in the Bill should stay out of it so that the three conventions can be brought back into our national law as soon as can be sensibly arranged. Secondly, we should invite a Joint Committee of both Houses thoroughly to investigate and review the use of Henry VIII powers and make recommendations on their future use. The Clause 2 powers were by no means the most egregious example of them, but I am not alone in thinking that Ministers should not make or amend the criminal law or the substantive law more generally by secondary legislation. That should be confined to administrative and simple regulatory matters.
Sentencing Bill [HL]
Lord Falconer of Thoroton ExcerptsThursday 25th June 2020
(4 years, 5 months ago)
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Lord Falconer of Thoroton (Lab) [V]
Like every other speaker I voice my support for the Bill, on behalf of the Opposition. Like so many others, I pay tribute to David Ormerod and the Law Commission. This truly is the product of huge amounts of hard work and should be admired. We should pass the Bill, which is intended to—and does, as far as I am aware—bring all those disparate sentencing provisions spread out over 1,300 pages of different statutes into one place.
When the Bill passes, it could be an important legislative day, or it could go the way of all previous attempts to consolidate sentences. If what David Ormerod and this House want were to happen, the Bill, when it becomes an Act, will be a comprehensive code for what a sentencing court does after October 2020, in respect of anybody convicted after that date. It will need only to look at the Act to know the procedure, limits and powers that it has.
The problems identified previously—the problems that led to that quite small but very telling survey in 2012, which indicated that 36% of sentences were unlawful—mean that judges, quite legitimately, and often assisted by counsel who find the same difficulties as the judge, do not know which sentence has been brought into force, what the maximum for one sentence was or what powers were available, depending on the date when an offence had been committed. That led to the inaccessibility of the sentencing regime, the terrifying lack of accuracy that has occurred in sentencing and—although I do not think it has led to much public awareness of this, wrongly—a reduction in public confidence in whether the sentencing regime works.
The Bill seeks, rightly, to remedy all the problems with that lack of certainty and those difficulties. It will save money over time: the estimate is hundreds of millions of pounds. It will make it easier for judges and defendants to know what the likely sentence will be, and it will increase public confidence. I commend it, for all those reasons.
I note what my noble friend Lord Adonis says: that this is fiddling while Rome burns. Yes, there can be a lot of debate about whether we have the right sentencing framework, but that should not prevent us making whatever legal framework we have accessible and understandable. I also note what my noble friend Lord Harris of Haringey says. Yes, there are real problems in how our prisons are currently managed but, again, that is not a reason for leaving the law on sentencing in the state that it is.
I note what the noble Lord, Lord Trimble, said about whether one should abandon juries in certain specified circumstances where they are presently available. I am strongly against the abandonment of the jury system in England because of the emergency. That would lead victims to feel that if there were acquittals, it was because there was emergency justice, and lead those defendants who were convicted to feel that it was because they ended up in a situation where they had emergency justice. The Ministry of Justice should focus on ensuring that there are enough courts to deal with jury trials, rather than amending our basic system. I say in parenthesis how strongly I agree with the noble Lord, Lord Trimble, about the merit and wonder of Dick Ferguson as an advocate. He was one of the finest advocates of his generation. The noble Lord described the circumstances in which Dick Ferguson, a former unionist member of Stormont, as it was then called, defended a member of the IRA charged with the Brighton bombing.
Coming back to the Bill, I join all your Lordships in supporting it. I also join those of your Lordships who say that it will work only if future Governments change sentencing only by amending this code, and not by introducing new Acts of Parliament. Home Offices and Home Secretaries can be as incontinent as they like in relation to justice Bills and new sentences. If they make the changes to sentencing by amending this Bill when it becomes an Act of Parliament, the “one code” approach will remain. Only if they do that will the Bill, and its passage into an Act, turn out to be an historic occasion. I very much hope that it will.
Private International Law (Implementation of Agreements) Bill [HL]
Lord Falconer of Thoroton ExcerptsWednesday 17th June 2020
(4 years, 6 months ago)
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Lord Marks of Henley-on-Thames (LD) [V]
My Lords, I fully support the amendment moved by my noble and learned friend Lord Wallace of Tankerness. It is plainly an anomaly that the 2000 Hague Convention does not at this stage apply throughout the United Kingdom. The inclusion of the convention in Clause 1 will achieve this. I hope that the Government will accept the amendment to achieve the end that my noble and learned friend seeks.
Lord Falconer of Thoroton (Lab)
My Lords, the noble and learned Lord, Lord Wallace of Tankerness, makes a very strong case. It is extraordinary that this has not yet been incorporated into the law of England, Wales and Northern Ireland. I very much hope that the noble and learned Lord, the Minister, will explain why that is not the case and, at the very least, give us a timetable for it becoming part of our domestic law.
The Advocate-General for Scotland (Lord Keen of Elie) (Con)
My Lords, I begin by thanking the noble and learned Lord, Lord Wallace of Tankerness, not only for his contribution to the debate but for engaging with my officials and me on this matter.
As noted, the amendment seeks to deal with the ratification of the 2000 Hague Convention on the International Protection of Adults in respect of England, Wales and Northern Ireland. Of course, the United Kingdom has ratified this convention, but the extent of this is limited to Scotland. I am pleased to confirm to the noble and learned Lord that it is our intention to extend the ratification of this convention to England and Wales. Discussions have commenced with officials in Northern Ireland to ascertain whether the Northern Ireland Executive would require the extension to apply to Northern Ireland.
The Mental Capacity Act 2005 largely implements the convention and contains powers to make any additional provision required. Schedule 3 to that Act provides for the recognition and enforcement in England and Wales of protective measures made in respect of vulnerable adults by the courts of other contracting states. Some Schedule 3 provisions are already in force and some will come into force upon ratification, at which point reciprocal recognition of domestic protective measures by other states will also come into effect. There remain some outstanding matters that require further implementation; largely, additional operational arrangements for the location or placement of vulnerable adults as between contracting states.
It is the Government’s view that the most appropriate way to implement these remaining matters is to make any additional provision required in or under the 2005 Act, using the powers provided for in that Act for this specific purpose. We will proceed with this as soon as we reasonably can, taking account of the need to take the Northern Ireland Executive with us if it is their wish that the matter be extended to Northern Ireland. In these circumstances, I invite the noble and learned Lord to withdraw this amendment.
Lord Falconer of Thoroton
My Lords, this is the main amendment on Report. It seeks to leave out Clause 2, which gives the appropriate Minister, whether in the devolved Administrations or in central government, the power subsequently to introduce changes to domestic law, including changes incidental to international treaties made with foreign countries, on the basis that domestic law should be changed because that has been agreed with a foreign country. In addition, it allows the Executive to introduce by secondary legislation changes to domestic law to give effect to model laws, for example in relation to insolvency. We oppose that extension of executive power. We believe that it represents a very substantial break with past practice, which requires treaties dealing with private international law to be introduced and change our domestic law by primary legislation, and we will press this issue to a Division.
I will set out briefly the way that we put our case in relation to this. Clause 1 gives effect, as part of the domestic law of this country, to three international agreements. The first is the 1996 Hague Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Cooperation in Respect of Parental Responsibility and Measures for the Protection of Children. This convention aims to improve the protection of children in cross-border disputes. It is a thoroughly good thing; it makes significant changes, or gives effect to significant powers, in the UK family courts.
The second is the 2005 Hague Convention on Choice of Court Agreements, which aims to ensure the effectiveness of exclusive choice of court agreements between parties to international commercial transactions. These clauses are common, particularly in high-value commercial contracts. Again, this is a good convention; it makes changes to UK domestic law and we support its incorporation.
Lord Falconer of Thoroton
I am obliged to every noble Lord and noble and learned Lord who has spoken in this debate. I have never been present when every single speaker has been against the Government, though when I heard the speech of the noble and learned Lord, Lord Keen of Elie, it was possible to understand why. He appeared to have failed completely to understand the basis of the objection to Clause 2. The basis of that objection is that the clause is wrong as a matter of principle and constitutes a change in our constitutional practice by allowing significant changes to be made in domestic law simply because we have agreed them with a foreign country.
At no stage did the Minister address that argument. Indeed, he advanced arguments which at some stages he had advanced previously but not with any degree of enthusiasm, in particular the argument that it was “essential” for the Government to have this power to remain a significant force in commercial law and financial and legal services. When one is a law officer, it is obviously okay to put forward entirely implausible political arguments—people can make their own judgment about them. These arguments went very close to the line in relation to the law. When asked to provide some justification for arguing precedent for this measure, the Minister did two things. First, he referred to EU law. It is hard to know what his answer is to the noble Lord, Lord Holmes of Richmond; I thought that the whole point of leaving the EU was to avoid powers of this very sort. He then referred to the 2005 Act bringing into force the convention in relation to vulnerable adults. He appeared not to have spotted that that was primary legislation giving effect to an international convention.
The Minister finally said that the Government would consult; for example, on arbitration. Is there any point in paying respect to that remark, when every single person in the Lords is opposed to Clause 2 and the Government have simply ignored it?
I am disappointed by what the noble and learned Lord has said, but, sadly, not surprised. I beg leave to test the opinion of the House on Amendment 2.
Lord Marks of Henley-on-Thames [V]
My Lords, I will add only this: I urge the Minister to heed what the noble and learned Lord, Lord Mance, has just said in looking at ways in which we can give further protection to choice of court clauses—those that favour London are to our greatest advantage—and that he does so as far as possible after the implementation period ends.
Lord Falconer of Thoroton
My Lords, I support the amendments. I will make two points. First, had the noble and learned Lord had his way in Clause 2, he could not have made these amendments, which indicates the importance of primary legislation. Secondly, I hope that he heeds what the noble and learned Lord, Lord Mance, said in his closing remarks. They were important. In the future, it would be more sensible to consult the Lord Chancellor’s Advisory Committee on Private International Law before producing primary legislation, rather than after.
Lord Keen of Elie
My Lords, I am most obliged, particularly for the contribution from the noble and learned Lord, Lord Mance. As he noted, as co-chair of the Lord Chancellor’s Private International Law Advisory Committee, he and I discussed this very point in detail at the May committee. I greatly appreciate not only his contribution but those of the other members of the committee, who have an in-depth understanding and knowledge of how these international agreements work and how the choice of court clauses work.
I am conscious of the issue of choice of jurisdiction and choice of law clauses arising in contracts made before 1 October 2015. I am also conscious of our need to do what we can to simplify the process in regard to that matter and, indeed, the matter of serving out of a jurisdiction, which we would have to look at in the context of the rules. These matters have been raised and I have them in mind at present, so I am most obliged to noble Lords for their contributions.
“(b) provision that creates, amends or extends a criminal offence, or increases the penalty for a criminal offence.”
The Deputy Speaker (Lord Duncan of Springbank) (Con)
I remind noble Lords that Members other than the mover of an amendment and the Minister may speak only once and that short questions of elucidation are discouraged. Anyone wishing to press an amendment to a Division should make that clear in the debate.
Lord Falconer of Thoroton
My Lords, I will speak very briefly because this amendment has little significance now that the House has decided to remove Clause 2.
Schedule 6 deals with detailed regulation-making power under Clause 2. We will put down an amendment at Third Reading to get rid of Schedule 6, so this does not matter. I tabled Amendment 10 simply to illustrate the width of the power that was being given under Clause 2 and, had we lost the argument on Clause 2, to indicate that we would seek to remove this power. The power in Clause 2(1)(b) allows the Executive by statutory instrument to create offences in connection with the introduction of a private international law treaty with a punishment of up to two years. That is wholly inappropriate, and it illustrates the danger of what was being proposed. But I will not press this amendment to a Division because Schedule 6 will go in any event.
Lord Pannick [V]
As the noble and learned Lord, Lord Falconer, said, Amendment 10 is now academic, but it provides an opportunity to mention that one of the concerns of your Lordships’ Constitution Committee is that Bills regularly seek to confer on Ministers the power to create criminal offences.
Paragraph 21 of the committee’s report on this Bill— HL Paper 55—said that the conferral of delegated powers to create criminal offences, particularly those that are subject to imprisonment, is “constitutionally unacceptable”. We made the same point in paragraph 30 of our report of 9 June—HL Paper 71—on the constitutional issues raised by Brexit legislation. There needs to be a strong justification for departing from that general principle. I hope, as I know do the other members of your Lordships’ Constitution Committee, that Ministers will take account of these important principles. If they do not and they bring forward similar clauses in other Bills, we will report on them accordingly to the House.
Lord Keen of Elie
My Lords, clearly, given that Clause 2 is no longer part of the Bill, this amendment would have no effect. However, I understand why the noble and learned Lord moved it—to allow further discussion of the issue. We believe that the inclusion of the provision to which the amendment relates would have been important in allowing the implementation of private international law agreements that necessitate the creation of a criminal offence, particularly in the family law area. I mentioned that in Committee.
In response to the observations of the noble and learned Lord, Lord Mance, I am not aware of any current examples where we have provided for criminal penalties when implementing a private international law agreement. However, that does not mean that it would not be the appropriate step to take in future agreements, for example, on mutual recognition and enforcement of protection measures, where the equivalent domestic orders were enforceable by criminal penalties such as orders under the Family Law Act 1996, or, indeed, injunctions under the Protection from Harassment Act 1997. One is looking to the equivalents of such orders made by a foreign court when it comes to enforcement in the United Kingdom.
I continue to suggest that the safeguards on the power that I outlined in Committee, including use of the affirmative procedure as a matter of course, would be effective and appropriate in this regard. However, since the Clause 2 delegated power is no longer part of the Bill, I invite the noble and learned Lord to withdraw his amendment. In the event that Clause 2 comes back to this House, it appears that there might be scope for him to revisit this issue.
Lord Falconer of Thoroton
The only example that the noble and learned Lord has given of the need for a criminal offence is in relation to family law—for example, making it a criminal offence not to comply with an order made by a foreign court. I think that is a very sensible power to have. What the level of criminality should be, and whether we should recognise those sorts of offences, is plainly a matter on which Parliament should properly take a view in primary legislation. I was extremely struck by the fact that he gave no examples in answer to the question of the noble and learned Lord, Lord Mance.
I am absolutely bewildered as to why the Government are doing this. The amendment does not stop them doing what they want to do in relation to private international law; all it requires is that Parliament gets a say and can amend things, as we have just done in relation to the implementation of the three treaties that we are dealing with today. What is wrong with that? It does not cause problems. It means that you get much higher-quality implementation, as we discovered this afternoon through the amendments being debated.
Is it a knee-jerk reaction on the part of the Government that they want to keep Parliament out of things as much as possible? The Minister gives fatuous justification for this by saying that it is “necessary” and “essential” for the UK to remain in its pre-eminent position. This is obvious tosh, as we have been in a pre-eminent position without this existing power before.
I am not going to press this amendment because, as the noble and learned Lord impliedly accepts, Schedule 6 will drop out at Third Reading, which means that there will be nothing to amend. I am very surprised that he is being a dog in the manger about that—of course that schedule has to come out once Clause 2 has come out. I would be interested to hear whether he accepts that; if he does not accept it, I will think that he is behaving slightly childishly.
I am not sure whether our rules allow the noble and learned Lord to come back at this stage. I see noble Lords indicating that they do, so could he confirm that he will agree that Schedule 6 will come out before the Bill goes to the other place?
Lord Keen of Elie
My Lords, it appears to me that Schedule 6 is quite distinct to Clause 2 as a part of the Bill, but, clearly, it is entirely dependent upon the existence of Clause 2. Beyond that, I do not really comprehend what the noble and learned Lord is talking about.
Lord Falconer of Thoroton
I will explain the question. Does the noble and learned Lord agree that, now that Clause 2 has been deleted, Schedule 6 should also be deleted?
Lord Keen of Elie
It may well be that it should be deleted, but it is for the noble and learned Lord to move his amendment if he wishes it to be deleted.
Lord Falconer of Thoroton
As the noble and learned Lord knows, I do not have such an amendment down. Obviously, what I was saying was that I would put down an amendment at Third Reading. Does he agree that that would be agreed to by the Government?
The Deputy Speaker
It helps if I can make the announcement so that people can capture this on camera. Does the Minister wish to respond?
Lord Falconer of Thoroton
That is disappointing.
In any event, I think the view of the House is unanimous. This is an inappropriate provision. I will not press my amendment. I take it that the Minister accepts that Schedule 6 is totally dependent on Clause 2. In those circumstances, I will put down an amendment at Third Reading to get rid of Schedule 6. I beg leave to withdraw my amendment.
Lord Marks of Henley-on-Thames [V]
My Lords, I have nothing to add to what was said by my noble friend Lord Thomas of Gresford on this amendment, which we support.
Lord Falconer of Thoroton
I support the principle of this amendment. It is all of a piece with the way this legislation has been conducted. My noble friend Lord Hain described the attitude of the Minister when this was raised with him in Committee as “high-handed” and “cavalier”. Prior to that, as my noble friend said, there had not been proper consultation with the devolved Welsh Administration. The noble Baroness, Lady Ritchie, indicated that the Northern Ireland Assembly did not feel it had been consulted. The noble and learned Lord, Lord Hope of Craighead, said earlier that the devolution aspect of this had not been thought through. As became apparent during the earlier stages of this Bill, the Lord Chancellor’s Advisory Committee on Private International Law was not consulted at all before the Bill was laid before Parliament.
This is not the right way to legislate. I very much hope that the Minister will reflect on the failures properly to deal with this Bill and the inadequacies in it as a result, in particular Clause 2 and the need significantly to amend Clause 1. Both Clause 1, which has broad support throughout the House, and the need for its amendment indicated how misjudged Clause 2 is. If the Minister has any respect for this House, he will properly respond to the points raised on this amendment.
Lord Keen of Elie
My Lords, I thank the noble Lord, Lord Hain, for meeting with me after Second Reading, when we discussed what he termed the copper-bottomed guarantee that he had sought in that debate. I explained to him the difficulty I had with that demand, given that it conflated the position of the Welsh Government with that of the Northern Ireland and Scottish Governments in circumstances where there was a quite separate and distinct divorce settlement with regard to the latter two, in contrast with the position in Wales. I understood him to appreciate that—indeed he even mentioned amending his amendment. I indicated that I did not think that necessary, because of course we are dealing here with a point of principle, and an important one.
Before I turn to the detail of the amendments, I stress to noble Lords that Ministry of Justice officials are in regular conversation with their counterparts in the devolved Administrations, not only about the matters contained within the Bill but whenever private international law issues arise that touch on areas of their devolved competence more generally. We are very conscious of our responsibilities under the devolution settlements, and our approach in this area is always to seek to engage early and often when any questions arise. It is my view that such an approach of early engagement is the best way to make consultation genuinely meaningful.
The noble and learned Lord, Lord Falconer of Thoroton, referred to an earlier observation by the noble and learned Lord, Lord Hope, with regard to his concern over the devolved aspects of the Bill. I have to say that I am perplexed by the observations of the noble and learned Lord, Lord Hope, and perhaps I should have responded earlier. There are two distinct ways in which these matters can be dealt with in the devolved context of Scotland. One is by the Scottish Ministers and the other is by the Secretary of State with the consent of the Scottish Ministers. The latter avenue is of course there because there are circumstances in which the Scottish Government will say to the UK Government, “We are quite content that you should implement these provisions throughout the United Kingdom without us having to replicate your efforts”. I hope that that assists in clarifying that point.
The Government have fully honoured the devolution settlements in this area as we approached the drafting of the Bill, including, I may add, the Clause 2 power itself and how it can be exercised in particular in relation to Northern Ireland and Scotland. It is important to point out at the outset that the devolution settlement is different in distinct parts of the United Kingdom, as I said before, and that difference is reflected in the Bill.
Amendment 11 affects Scotland and Northern Ireland, where private international law is a devolved matter, differently to Wales, where these matters are almost entirely reserved. For Scotland and Northern Ireland, there are already two designated “appropriate national authorities”, as I just mentioned, which may exercise the Clause 2 power for those jurisdictions: either the Scottish Ministers or a Northern Ireland department, or alternatively, the Secretary of State acting with the consent of those Ministers or the Northern Ireland department. Either way, the ultimate decision on use of the Clause 2 power in Scotland and Northern Ireland rests with the devolved Administrations, and that is reflected in the Bill.
In principle, I have no objection to consulting before the Secretary of State can make regulations which apply in Scotland and Northern Ireland. Indeed, it is something that would happen, because he can make those regulations only with the consent of the Scottish Government or of the Northern Ireland department. I refer also to Clause 2(7)(b)(i) and (c)(i), which provide that the Secretary of State already needs the consent of the Scottish Ministers or a Northern Ireland department to legislate for those parts of the United Kingdom. I do not see how one would gain such consent without consultation. It goes without saying that if you are to secure consent, you must consult and engage.
The Scottish Government and Northern Ireland Administration have been fully engaged in the drafting of the Bill, including the Clause 2 power, and there is strong support from both devolved Administrations on the Clause 2 power as currently drafted. That is reflected in the fact that a legislative consent Motion has already been granted by the Northern Ireland Assembly, and another has been laid before the Scottish Parliament, with both the Scottish Government and the Scottish Parliament’s Justice Committee recommending that consent be granted. There we have a clear picture of what is happening in the devolved Administrations with regard to the Bill, and in particular Clause 2, and their welcome of these developments. They are the product of consultation and of consent.
Private International Law (Implementation of Agreements) Bill [HL]
Lord Falconer of Thoroton ExcerptsWednesday 3rd June 2020
(4 years, 6 months ago)
Lords ChamberRead Full debate Private International Law (Implementation of Agreements) Act 2020 View all Private International Law (Implementation of Agreements) Act 2020 Debates Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: HL Bill 101-R(a) Amendment for Report - (3 Jun 2020)
Lord Marks of Henley-on-Thames (LD)
My Lords, we have no objection to the Bill as passed extending to the Isle of Man at its request, but that is of course subject to the whole question of our objection to Clause 2 standing part of the Bill and to any other amendments to the Bill that may be passed to it. In those circumstances, it is right that the Minister is not pursuing this amendment today, and it would be right that we should reconsider our position on Report.
Lord Falconer of Thoroton (Lab)
I am grateful to the Minister for indicating that he is not going to proceed with this amendment today and that he has moved it simply to open it for debate. We oppose the amendment because we oppose in principle Clause 2, which inappropriately gives the Government the power by secondary legislation to introduce important changes to domestic law to reflect private international law agreements. At the moment, if that is the principle that we stand on, in our view it is wrong to say that the Isle of Man, of all the parts of the Crown dependencies, should have a special right to do it by statutory instrument. That, as previous Lords have indicated, would differentiate it from everyone else. We are against it for that reason.
We are also against it because this change would allow for differential application of international agreements as between the various parts of the United Kingdom and, for the reasons we gave the previous time this Committee met, we are against that. So, we oppose the amendment.
Lord Keen of Elie
I am obliged to noble Lords for their contribution to the debate, and note what has been said. Perhaps I may respond to the points made by the noble Lords, Lord Adonis and Lord Mann, and touched upon by the noble and learned Lord, Lord Falconer—although I have a correction to make there. The reason why this is being done only in respect of the Isle of Man is that the Isle of Man has specifically requested that this mechanism should be available, so that we can proceed by way of an Order in Council from the Privy Council. It will be for the other Crown dependencies to determine whether and when they wish to implement primary legislation within their own legislatures to come within the ambit of such international agreements as the United Kingdom draws down.
The noble and learned Lord, Lord Falconer of Thoroton, referred to variation between parts of the United Kingdom but of course the Crown dependencies are not part of the United Kingdom. They have a unique status and it is for them to determine whether and to what extent they wish to become a party to legislation that draws down into domestic law international treaty obligations. I continue to believe that this amendment is important and respect the request of the Government of the Isle of Man. However, I recognise the concerns expressed about the links between this amendment and the Clause 2 power to which exception is taken. The noble Lord, Lord Marks, and the noble and learned Lord, Lord Falconer of Thoroton, made that point. In these circumstances I will therefore withdraw the amendment, but I intend to continue this discussion at a later date. For present purposes, I beg leave to withdraw the amendment.
“( ) provision that creates, amends or extends a criminal offence, or increases the penalty for a criminal offence”
Lord Falconer of Thoroton
This is, in effect, a probing group of amendments, repeating many of the arguments that we discussed on day one in Committee, and the amendments do two things. Amendment 19 would delete the power of the regulation-making authority to create, amend or extend a criminal offence. Amendments 20 and 21 say that the regulation-making power should be subject to the super-affirmative resolution procedure in the UK Parliament; and, in particular, that before any such instrument was made final a consultation would have to be undertaken with the Lord Chancellor’s advisory committee on private international law and the European Union Select Committee of the House of Lords.
I make it clear, as I did on the previous occasion, that I am not in favour of this order-making power at all. I refer to Amendment 19 simply to indicate the width of this power, which includes the making or changing of criminal offences. In relation to the super-affirmative procedure, again, I am against it. There should not be that power at all. It gives me an opportunity, though, to make the point that the Lord Chancellor’s advisory committee on private international law has been an important source of advice over a long period to the Lord Chancellor and the Ministry of Justice on private international law agreements. It was not referred to at all in the suite of maybe a dozen statutory instruments introduced under the withdrawal Act, in the wake of us changing our private international law arrangements with the European Union. That led to a great loss in the preparation of those statutory instruments. I very much hope that the Minister will give an under- taking that in any subsequent changes in private international law, the Government will consult unquestionably the Lord Chancellor’s advisory committee and, as much as possible, the European Union Select Committee of this House. I beg to move.
Lord Thomas of Gresford (LD)
My Lords, first, I draw attention to paragraph 41 of the memorandum concerning the delegated powers, which says:
“We do not anticipate using the power to create, extend or increase the penalty for, a criminal offence very often, however it may be needed, in very limited circumstances, in order to implement effective enforcement provisions for some potential future PIL agreements.”
I stress: some potential future PIL agreements.
I want to speak mainly to Amendment 19, although I support what the noble and learned Lord, Lord Falconer, said in relation to Amendments 20 and 21 and his criticisms of the super-affirmative procedure. The Committee may recall that in its first sitting, I made comments about the necessity for democratic legitimacy and scrutiny when it comes to the making of legislation in this form. I do not consider that the form of approach of an affirmative resolution on its own is enough. I certainly do not think that the super-affirmative procedure adds very much to that. As for scrutiny, the noble and learned Lord has already referred to the fact that the Lord Chancellor’s committee was not given an opportunity to consider the Bill.
Criminal offences are set against the background that everybody is presumed to know what the law is. To put it another way, familiarly, ignorance of the law is no excuse. Any criminal offence created requires clarity, certainty and proportionality. I illustrate this by referring to what is very much in the public eye at the moment, the Health Protection (Coronavirus Restrictions) (England) Regulations 2020. No draft was laid or approved by Parliament by reason of urgency, and one understands entirely that reason, but the instrument has been amended twice since it was passed in March and the latest version came into force on Monday. It had 12 regulations and two schedules in its original form and Regulation 6(1) provides that everyone must stay overnight at
“the place where they are living”.
There are certain exceptions, including, at Regulation 6(2)(d),
“to provide care or assistance, including relevant personal care within the meaning of paragraph 7(3B) of Schedule 4 to the Safeguarding of Vulnerable Groups Act 2006, to a vulnerable person”.
At that point I gave up further research, but I do not think that particular exception can possibly refer to ordinary childcare. Yet there has been controversy. The Prime Minister and four of the Cabinet have taken one view or interpretation of these regulations and almost everybody else has taken a completely different view on whether what happened was legal or not. An unlimited fine is payable on summary conviction, which can be avoided by complying with a fixed penalty notice. Noble Lords will appreciate that that is typical of the sort of offence that can be created by secondary legislation that nobody understands—I say “nobody understands”; many people understand the drift of it, but the particular detail can be the subject of controversy.
Coming back to the Bill, it is obviously undesirable that there should be a lack of clarity in drafting criminal offences when it is possible for those criminal offences to result in a penalty of up to two years’ imprisonment. An unlimited fine is quite a burden, but imprisonment through regulations that refer to other Acts of Parliament—subsection this and sub-subsection that—is entirely undesirable and never gets, whether by the ordinary affirmative procedure or the super-affirmative procedure, adequate scrutiny and understanding by the authorities that have to put it into effect and, most relevantly, by the people who are affected by it and who have to obey the law.
Public international law covers, as we discussed, a wide variety of issues. It is not at all satisfactory for the wide power that I referred to—for some potential future PIL agreements to create criminal offences—to be put in the hands of Ministers. For that reason, this is an aspect of the Bill, never mind the whole of Schedule 2, that I find offensive.
The Deputy Chairman of Committees (Baroness Henig) (Lab)
No Member has indicated that they wish to speak after the Minister, so I call Lord Falconer.
Lord Falconer of Thoroton
I am very obliged to all noble Lords who have spoken in this debate, and I am very grateful for the almost universal support I got from the noble Lords, Lord Marks, Lord Bhatia and Lord Holmes, the noble Baroness, Lady Jones, the noble and learned Lord, Lord Garnier, and my noble friends Lord Blunkett, Lord Kennedy, Lord Hain, Lord Triesman and Lady Kennedy. I am dismayed not to be supported by the noble and learned Lord, Lord Mackay of Clashfern, but I disagree with the two propositions he made. The first was that he was happy for the criminal offences to be introduced by secondary legislation under the power of the international private law agreement. As has been made clear, including by the Minister, that is not right. Secondly, I am unfortunately not persuaded by him that it involves a similar degree of scrutiny as that which previously existed in relation to private international law. It most certainly does not. He referred to the Civil Aviation Act 1982. That refers to civil aviation, which was mostly dealt with by the European Union at that time, so it does not support the proposition that he advanced. Indeed, it was not relied on at any stage by the Minister.
I was disappointed in what the Minister said in three respects. First, he said that he was not even going to reconsider the position, even though there was practically universal opposition in the House to the idea of a Section 2 power; secondly, he failed to give any assurance to my noble friend Lord Hain in relation to the devolved Assemblies; and, thirdly, he did not give any assurance in relation to being willing to consult the Lord Chancellor’s advisory committee on justice. Of course, I will withdraw the amendment, but we will return to this in seeking to remove Clause 2 on Report.