Covid-19 Inquiry: Judicial Review

Lord Faulks Excerpts

Tuesday 6th June 2023 Lords Chamber

[Baroness Neville-Rolfe (Con)]

My apologies. There is a well-established precedent, as we all know—I think it goes across many Administrations—that former Ministers are supported with legal representation after they leave office. The cost of that is met from government funds and for good reasons, I think, for when those of us who serve as Ministers are doing so. When the former Prime Minister, Boris Johnson, decided to recuse from being supported by government legal services a letter was sent to him, explaining that it was possible for him to have his legal advice—if this is what was being referred to—paid for, subject to the normal rules of value for money, as the Permanent Secretary has to sign off that money is properly spent. I think it is a non-issue and that he is now drawing on his own solicitors, Peters & Peters, for advice.

The noble Baroness, Lady Chakrabarti, explained that we all agree that we have empowered a very eminent judge. I think she was making the point that it is up to the judge to decide what is relevant and what is not. We agree that the framework of the inquiry is for her to decide, but there is this narrow point about unambiguously irrelevant documents and messages. Some of those are WhatsApps, as has been mentioned. Since the Act was passed, WhatsApps have become a much more common form of communication. You can imagine that in the bundles there is a combination of personal communication and matters that are completely unconnected to the Government’s handling of Covid.

I want to make it clear—the Paymaster-General made it completely clear in the other place—that documents relating to Covid and potentially relevant material will be made available to the inquiry. It is a broad-ranging inquiry. We owe it to the people who lost their lives and those whose relatives lost their lives to find out what happened. The inquiry has to be of a very wide-ranging nature. However, in some of those documents and notebooks, there is material which is completely unconnected to the Covid inquiry.

We have therefore asked a judge to use the process of judicial review—those noble Lords who have been involved in the courts will know this is quite a common process—to rule on this technical point. We hope to have a hearing on this by the end of June so that things will be clear. In the meantime, we are continuing to submit material every day to the inquiry and to work with it.

[Lord Faulks (Non-Afl)]

My Lords, I apologise for missing the first 30 seconds of the observations of the noble Baroness, Lady Smith. Some of us were standing by and did not expect business to proceed quite as quickly as it did. I think some others may be in the same position.

The optics of this are not particularly good. I can understand the observations made by the noble Baroness, Lady Smith, and the noble Lord, Lord Allan. Clearly, individuals involved in this inquiry should not be able to hide behind process and conceal anything which may be relevant to the inquiry. I of course share with others the confidence in the noble and learned Baroness, Lady Hallett, as an entirely suitable chair with a very important role to fulfil.

I find some reassurance in the Statement in the description of the process, which has been undergone and will continue, in deciding what should or should not be disclosed. It says:

“Witnesses are required to identify any material that may contain potentially irrelevant information … with guidance from the counsel team supporting them. That is then reviewed by the counsel team, who identify any material that is unambiguously irrelevant. The counsel team discusses it with the witness in case there is any context or detail of which they may not be aware. The review … team includes … a King’s Counsel … No decision to redact material as unambiguously irrelevant has been or will be taken by a witness acting alone”.


There is an important role for the lawyers, rather than the witnesses, in deciding on relevance, although that is a continuous process. This is perfectly familiar to those like me who have been involved in disclosure and judicial review generally. It seems that there is a matter of importance in deciding what should and should not be disclosed, not just for the purposes of this inquiry but for inquiries in the future which may involve different Governments on different issues.

However, I ask the Minister whether it is possible to reach some kind of compromise on this, so that in the process described, which should be able to identify matters which are relevant or unambiguously irrelevant, there should be some circle of confidence involving the inquiry and its chair’s lawyers to enable her, her team and the government lawyers to ascertain what is truly relevant while not wasting a lot of time on things that are irrelevant and without forcing some judge to make a rather difficult decision on where the parameters lie.

[Baroness Neville-Rolfe (Con)]

I thank my noble friend for his wise advice and the background. We miss him on the Front Bench, and it is good that he has come to talk to us today. As evidence of his point, materials are carefully considered. One of the issues under debate was the Sarah Everard processes. In this case, a message that appeared unconnected to Covid was initially redacted, but it was then identified as potentially relevant as part of the additional counsel review, which the noble Lord referred to, so the Cabinet Office then provided it to the inquiry proactively. A process is going on, and a large team is working away at this. All along, our legal team in the Cabinet Office looking after the inquiry has tried to agree on sensible arrangements. We have entered a JR, but we remain hopeful and willing to agree the best way forward with the inquiry, if that is possible.

Dissolution and Calling of Parliament Bill

Lord Faulks Excerpts

Report stage
Wednesday 9th February 2022 Lords Chamber

[Lord Beith (LD)]

My Lords, this is a new threat. We have heard of the threat of an election being called to the detriment of Back-Bench Members whose support is being sought, but the threat of Miller 3 is not one that has been produced before. I found it an unpersuasive line of argument, particularly that the Prime Minister could go to the courts and say, “In order that I should have a stronger position in dealing with foreign counterparties, I must suspend Parliament to make sure that nobody can attend Parliament and say anything in the course of its proceedings while I am engaged in these negotiations.” I cannot see any basis for that, as opposed to the contention that has come into the debate of a Prime Minister adducing in evidence, “I wish to have a Dissolution and I have a majority in Parliament supporting me in this desire”, which would be the case under the amendment that we passed previously. We would be in an absolutely clear position and the courts would have no basis for intervening.

In the preceding debate, the noble Lord, Lord True, said that the simple and proven practice of the past is what we should follow. But the simple and proven practice of the past did not include an ouster clause of this nature. The Representation of the People Acts do not contain ouster clauses of this nature, nor does most other legislation. That is a situation that might change, as the noble and learned Lord, Lord Hope, pointed out, if this is taken as a precedent. I will come back to that in a moment.

It is necessary to be clear, first, that in the event of the other place agreeing to the amendment that we passed a moment ago, this ouster clause is particularly unnecessary because no court would interfere with so clear a decision of Parliament. There are other reasons why the request to the monarch to dissolve would be protected from the actions of the courts. One is that it is, as the noble Lord, Lord Norton of Louth, pointed out in moving his amendment, a personal prerogative power. It is not a matter of advice which might be challenged, as it was in the Prorogation case. It is a personal prerogative power, which results from a request from the Prime Minister. I do not believe that the courts would be in any way inclined to interfere with the exercise of that personal prerogative by the monarch.

I strongly assert that the comparison with Prorogation is quite wrong. The effect of Prorogation is that Parliament cannot meet; it cannot sit or discuss and it cannot challenge the Executive. That is quite different from the Dissolution of Parliament and the calling of an election. Indeed, it has been adduced from the quarters of those who support the Government’s position that the calling of an election, referring the matter to the people, is so clearly the right outcome in so many circumstances that it should not be interrupted in any way. In my view, the courts would certainly not want to be seen to be preventing a general election from taking place. I find that inconceivable.

My primary worry about this ouster clause is not that it has some practical effect or that it changes what would be the clear reluctance of the courts to become involved in arguments about the calling of an election. It is that the Government have form on ouster clauses; we saw that earlier this week when debating the Judicial Review and Courts Bill, which has its own ouster clause. In that case, the Government have declared that it is their intention to use the wording in that Bill as a precedent for ouster clauses in other, unspecified Bills in future. That was clearly stated in a government press release.

The noble and learned Lord, Lord Hope, made the point that parliamentary draftsmen like to act on precedent. When they have found a form of words that suits their purpose in one case, they like to use it again in another, if possible. We are creating precedents for issues around, for example, purported powers that will be very unhelpful in future as we seek to defend the ability of the citizen to challenge abuse of power, which is what judicial review is about. We are doing so because of fears that are not justified and dangers that do not exist, because the likelihood of courts preventing a general election from taking place is clearly vanishingly small, to the point of non-existence, for the reasons that I and others in this debate have adduced. We would be better off without the ouster clause provision. We do not need it and therefore we support the amendments of the noble Lord, Lord Norton of Louth, and the amendment of the noble Lord, Lord Butler of Brockwell.

[Lord Faulks (Non-Afl)]

My Lords, the noble Lord, Lord Butler, is right to pursue his amendment because it seems quite possible that the House of Commons will decline the invitation to accept the amendment that your Lordships’ House so recently voted in favour of. I will address a number of questions briefly, because I did have the pleasure of being here in Committee.

First, is this really an ouster clause at all? I accept that it is not easy to imagine circumstances in which a Dissolution is challenged in the courts, but the noble Lord, Lord Butler, wants at least to keep open that possibility—apart from anything else, as I understand it, to save potential embarrassment to the sovereign. The noble and learned Lord, Lord Hope, does not want this ouster clause, if it is so described, to act as a precedent, and the noble Lord, Lord Norton of Louth, does not like the word “purported”.

It is probably not, strictly speaking, an ouster clause at all. During the deliberations of the Independent Review of Administrative Law, which I had the privilege of chairing, we looked at this clause. We thought that there was a distinction between Parliament creating a power and, at the same time, including a provision that limits or absolutely prevents the courts’ powers from challenging that.

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[Lord Pannick (CB)]

My Lords, I suppose I should declare a professional interest in the possibility of Miller 3.

I support the amendments in the names of the noble Lords, Lord Norton and Lord Butler. I do not suggest that the courts would today never entertain a judicial review in relation to Dissolution. The noble Lord, Lord Norton, mentioned the words of Lord Roskill in the GCHQ case in 1984—the law has moved on a long way in the nearly 40 years since then. Like other noble Lords, I find it very difficult to envisage a case in which the courts would entertain a challenge to the Dissolution of Parliament and the calling of a general election. However, I support the amendments because I think it would be wise, in this context, to proceed on the basis of never say never.

One of the vices of a provision such as Clause 3 is that it seeks to remove the possibility of the court exercising jurisdiction, however exceptional the circumstances may be or however grave the abuse of power by a future Prime Minister. I would much prefer to leave it to the judgment of a future Supreme Court whether the circumstances then existing justify exceptional judicial involvement and whether there is an abuse of power, rather than confirm a blanket immunity from legal challenge whatever the circumstances.

I also agree with the noble Lords, Lord Butler and Lord Norton, that there is a point of principle here: the Prime Minister would be exercising a very important power. It is wrong in principle that there should be an immunity from the rule of law—it is a very basic principle. That principle does not depend on whether the noble Lord, Lord Faulks, is correct in saying that, as a matter of description, this is or is not an ouster clause. What it purports to do is prevent the court saying, “What you have done is unlawful”. We should not be allowing the exercise of public powers to enjoy such immunity as a matter of principle.

We then have the argument the noble Lord, Lord Faulks, deployed, and which was raised in Committee, that the mere existence of this possible jurisdiction to entertain a judicial review may cause delay, expense or inconvenience. That seems to me to be entirely unrealistic. I looked to see whether there have been any cases analogous to the possible cases we are talking about. There is one. The Press Association reported on 8 April 1992, the day before the 1992 general election— won by John Major—that on 7 April, the day before, Mr Justice Macpherson had considered and rejected a judicial review application which was made by a Mr George Barnes, who was seeking to stop the 1992 general election going ahead. Mr Barnes was aggrieved by the manner, as he put it, in which the main political parties had chosen their candidates.

[Lord Faulks (Non-Afl)]

I am sorry to interrupt the noble Lord in the middle of his flow, but I think his point was that the law has moved on greatly since Lord Roskill. So does not citing a decision from 1992 rather defeat his own argument?

[Lord Pannick (CB)]

No, because my point is that hopeless or frivolous applications will be dealt with speedily by the courts. This was plainly an application with no merit whatever, and my noble friend’s point, as I understood him, was that the mere existence of the jurisdiction could cause delay. I am giving an example of how the courts then, and today, would deal with a frivolous application.

The judge decided, unsurprisingly, that this was not a matter for the courts and that there was no basis for the application. The general election went ahead and it was entirely untroubled by the litigation. There was no delay, expense or inconvenience. The court dismissed a hopeless application speedily and effectively, as it usually does. For all these reasons, if my noble friend Lord Butler wishes to test the opinion of the House, he will have my support.

Dissolution and Calling of Parliament Bill

Lord Faulks Excerpts

Committee stage
Tuesday 25th January 2022 Lords Chamber

[Lord Faulks (Non-Afl)]

The noble Lord is masked.

[Lord Grocott (Lab)]

I am sorry. God, I will be glad when we get rid of those for good.

The noble Lord, Lord Sherbourne, said that, somehow or other, there is a suggestion that the argument on this side or around the House is that a Prime Minister calling for a general election is bad, undemocratic or inappropriate. We are not saying that at all. We are saying that a Prime Minister would not be a Prime Minister unless he had a majority in the House of Commons, and the Prime Minister would get what he wanted. I apologise for the length of the intervention, but the question I want to ask the noble Lord is: if he feels this passionately about, as I understood it, the Prime Minister alone being able to make that decision, how could it possibly be the case, in his argument, that a monarch—unelected—could say no to the Prime Minister making a request of that sort?

--- Later in debate ---

The Government have nothing to fear by the removal of these provisions if they wish to be free to exercise their prerogative powers in the context of Dissolution. I wonder whether the noble Lord can assure me that, if he insists on keeping these provisions in power, they are not to be a precedent for the future. As the way things are now, that is my principal concern because I do not see the court being involved in this issue about Dissolution being improperly exercised at all.

[Lord Faulks (Non-Afl)]

My Lords, the Committee has shown in the debate on this Bill so far that there is common ground that this Bill should provide clarity. The use of “purported” in Clause 3 seems to be a deliberate choice by the Government and the parliamentary draftsmen. It is not a word used much in everyday speech but is found in other Acts of Parliament. It is also used in judgments when an act has taken place or a decision has been taken, but a court has concluded after the event that the decision or act has no legal effect. Any well-informed draftsman in this context would have had well in mind the decision in the Anisminic case.

In Miller II, as it is generally referred to—the prorogation case—the Supreme Court concluded that despite the fact that the Prime Minister had gone through all the appropriate formalities to prorogue Parliament and Parliament had been, as a matter of fact, prorogued, the prorogation, or purported prorogation, was unlawful and was thus deemed not to have happened as a matter of law, with the result that Parliament was reassembled.

The purpose of Clause 3 is plainly to render the exercise of the power to dissolve Parliament non-justiciable. The first question is whether, as a matter of construction, it has that effect, and the second is whether such an ouster clause should be in the Bill at all. That is an issue in the stand part amendment in the name of the noble Lord, Lord Butler. If, for the sake of argument, the House were to conclude that an ouster clause was appropriate, why not include “purported” in the ouster clause? In its absence, a court could conclude that notwithstanding the apparent or purported Dissolution, because of the unlawfulness of the Dissolution—and the courts have shown considerable ingenuity on occasions in finding unlawfulness—the Dissolution never, as a matter of law, occurred. It would follow that Parliament would then be reassembled, campaigning might be halted, the date of an election vacated, with all the attendant chaos that would ensure, and it is even possible that the result of an election could be set aside. That seems to me to be a highly undesirable state of affairs, for two principal reasons: first, the uncertainly; and, secondly, the insertion of the courts into the political process.

I entirely appreciate the distinction between Prorogation and Dissolution, but before Miller 2 most lawyers would have considered that Prorogation was non-justiciable. I dare say that the advice was given by the Attorney-General or the Government Legal Department that when Mrs Miller and others brought their judicial review it was non-justiciable. That is not such an unreasonable point of view, given the unanimous decision of the Divisional Court, a court consisting of the Lord Chief Justice, the Master of the Rolls and the President of the Queen’s Bench Division. That court concluded that, without in any way expressing approval of the decision of the Prime Minister, it was a matter of politics, not law. In other words, the power was non-justiciable.

Why did the Supreme Court disagree with the reasoning of the Divisional Court? Unfortunately, we do not know, because it made no mention of the decision of the lower court. This departure from the normal engagement with the reasoning of the lower court could certainly be regarded as something of a discourtesy, to put it mildly.

There are differing views as to whether the Supreme Court in Miller 2 came to the right conclusion. The Government’s view may well have been a factor in the setting up of the independent review of administrative law, which I had the privilege of chairing. I do not purport to speak on behalf of the panel today, but I can point out to the House that we concluded that the decision might be regarded as something of a one-off and should not of itself lead to any fundamental changes in the scope of judicial review. The combination of a minority Government, no agreement in government on the right approach to Brexit, and the rigidity of the Fixed-term Parliaments Act, with its requirement of a super-majority, created something of a perfect storm.

On the one hand, the case was a magnificent demonstration of the checks and balances in our constitution working well, even if you do not agree with the conclusion. As it happens, I do not agree with it, but other views are available. I do not favour the decision because of the involvement of judges in a political matter. In conversation with constitutional experts in the United States, I have encountered considerable surprise at the decision. An equivalent challenge in the United States would fall foul of the political questions doctrine, and the claimants would not be able to establish that they had standing to bring such a challenge. In this jurisdiction, points on standing are rarely taken. We pointed this out in the IRAL and suggested that they should be taken more often, even by the court of its own motion, since it is a jurisdictional matter.

In his response to the IRAL report, the then Lord Chancellor, Sir Robert Buckland, as he now is, said that he was anxious to protect judges from politics. I think he had a point. Unlike in the US, our judges have, for the most part, skilfully avoided involvement in political matters. As a result, and in sharp distinction to their counterparts in the United States, our judges are not well known to the general public and their views are not a matter of general public interest, in the non-technical sense, and long may that continue.

This Bill would protect judges from political controversy by reason of the terms of Clause 3. I think a number of judges would be perfectly happy with that outcome, but even if they were not there would be an acceptance that Parliament is entitled to legislate to exclude the courts from considering the legality of the power to dissolve Parliament. The IRAL concluded that it was constitutionally open to Parliament to pass an ouster clause of this sort, and unless you reject the doctrine of parliamentary sovereignty, I do not believe that this is in any way controversial.

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[Lord Wallace of Saltaire (LD)]

My Lords, if we are talking about our tried and tested constitution, we should remember that in the 17th century it was Chief Justice Coke and his defence of the rule of law against the extent of the royal prerogative which led to the development of some of the ideas of constitutional democracy at least as much as Parliament. The rule of law is an essential part of the way we work.

I say to the noble Baroness, Lady Noakes, that we all know that this clause is in the Bill because of the judgment on Prorogation in 2019. I was interested to hear that the Minister’s definition of Prorogation did not in any sense suggest that that use of the power came within an accepted definition. Perhaps he will change his definition next time he comes.

The Minister has said that the importance of the Bill is to restore the status quo, but this ouster clause is not the restoration of the status quo. I agree with the noble and learned Lord, Lord Hope, that it opens a window to its use on other occasions, which would be highly undesirable. It is much more radical than Clause 2 in changing our customs and practices. If we want to maintain the status quo while changing it a little—

[Lord Faulks (Non-Afl)]

The noble Lord says that the clause does not restore the status quo. Does it follow that, in his view, the power to dissolve would have been justiciable at common law by virtue of the conventions?

[Lord Wallace of Saltaire (LD)]

I find it hard to imagine a situation in which the power of Dissolution would be used in the way that the power of Prorogation was used in 2019, so I do not think it likely that the case would arise. That is my instant opinion.

The radical dimension of this is that it disturbs the balance between the judiciary and the rule of law, and Parliament and the checks that Parliament has on executive power and the Government. The conclusion of The Independent Review of Administrative Law says, as the noble Lord, Lord Faulks, will remember:

“The Panel consider that the independence of our judiciary and the high reputation in which it is held internationally should cause the government to think long and hard before seeking to curtail its powers … It is inevitable that the relationship between the judiciary, the executive and Parliament will from time to time give rise to tensions … a degree of conflict shows that the checks and balances in our constitution are working well.”


I strongly agree with those sentiments. It is part of the proper process of constitutional democracy that each of those elements of our constitution should have a degree of tension with each other and hold each other in balance.

That is why I am in favour of amending this Bill to provide the simpler process of powers of Dissolution that Clause 2 provides—thus making Clause 3 unnecessary —and supplementing the desire for clarity of conventions by revising the Cabinet Manual to have a more fluent definition of Dissolution principles. If we do all three of those, we will substantially improve the constitutional value of this Bill.

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[Lord Faulks (Non-Afl)]

This may be an observation intended to help the Minister. Since the Bill was drafted, the Judicial Review and Courts Bill has been introduced. It contains an ouster clause, but one that is qualified as opposed to absolute, so the argument that this is being used as some form of basis for future ouster clauses seems to be defied by recent legislative practice.

Anti-corruption Strategy

Lord Faulks Excerpts

Monday 10th July 2017 Lords Chamber

[Lord Faulks (Con)]

My Lords, during the passage of the Criminal Finances Bill, a great deal of concern was expressed around the House about the number of properties, particularly in central London, being acquired by anonymous foreign owners, often using corrupt proceeds of crime. Can the Minister update the House on what is happening with unexplained wealth orders and, indeed, with the proposed register of foreign owners of property here in London? It is time we kept the momentum going on this.

[Lord Young of Cookham]

I am grateful to my noble friend, who played a significant role when the then Criminal Finances Bill was going through the House in ensuring that we had the unexplained wealth orders in the right shape. That legislation hit the statute book on 27 April. We are now preparing statutory guidance, subject to the affirmative procedure order, and introducing new court rules and training for officials so that we get the orders in good shape before they are introduced. We remain committed to a register of beneficial ownership of foreign companies that own or acquire property in this country. Good progress is being made. BEIS submitted a consultation document earlier this year, and it is now analysing the responses. I say to my noble friend that we are determined to honour the commitment to introduce such a register.

Surrogacy

Lord Faulks Excerpts

Wednesday 14th December 2016 Lords Chamber

[Lord Faulks (Con)]

My Lords, I am extremely grateful to the noble Baroness, Lady Barker, for initiating this debate, and I endorse everything that she said. She referred to Baroness Warnock’s recent acceptance that the law needed change and to a report published in 2015 by a working group led by Surrogacy UK which concluded that existing legislation was,

“out of date and in dire need of reform”.

The report recommended a complete overhaul of the law, introducing pre-birth parental orders. It is on the question of parental orders that I wish to focus my remarks.

I do so on the basis of a particular case where judgment was handed down on 25 October of this year under the name “Re AB (Surrogacy: Consent) [2016] EWHC 2643 (Fam)”. The case arose out of a consensual, altruistic surrogacy arrangement. Embryos were created, using the genetic material of both biological parents, and twins were born in 2015. The embryos were transferred to the surrogate, who carried the twins to birth. The children have since had no contact with the surrogate mother and her husband, who have made it clear that they seek to have no involvement in the children’s lives.

It was agreed at a hearing involving all parties that the court should make a child arrangements order providing for the children to live with their biological parents. This gave them parental responsibility, and the orders made prevented the surrogate mother and her husband being able to exercise any parental responsibility in relation to the children. Except in one respect, the relevant criteria for the making of a parental order under Section 54 of the 2008 Act were met; that was in relation to the respondent’s consent. Section 54(6) provides that the court must be satisfied that the respondents have,

“freely, and with full understanding of what is involved, agreed unconditionally to the making of the order”.

Why did the surrogate mother and her husband refuse consent? Apparently, they did so because of a feeling of injustice about the process rather than being motivated in any way by the children’s best interests. Noble Lords may have seen the article by Alice Thomson today on page 28 of the Times, which goes into more detail about the facts of that case.

The lack of consent meant that the application for a parental order came to a juddering halt, which of course caused great distress to the biological parents. The children were then left—and are left—in a legal limbo which, contrary to what was agreed by the parties at the time of the arrangement, meant that the surrogate mother and her husband would remain the legal parents even though they were not biologically related to them and they expressly wished to play no part in the children’s lives.

The court acknowledged the “very unusual circumstances” of the case and said that it was prepared to accede to the request for the applications for a parental order to be adjourned generally, with liberty to restore. The problem is that a surrogate, as here, and her husband can refuse consent to orders of this sort for any reason or no reason at all. Effectively, the surrogate and her husband—who has no connection at all with the children—have a complete veto over the process. In this case, for nearly a year Cafcass and the court made extensive efforts to persuade the surrogate to “see sense”, put the interests of the children first and sign the papers, but those efforts came to nothing.

The law needs changing in this regard. The only circumstances in which a court can currently dispense with the consent of the surrogate and her husband is if they “cannot be found” or are “incapable of giving agreement”. I understand why those provisions were brought in: to cater for the situation where the surrogate might change her mind during the pregnancy, bond with the baby and want to keep it. In cases like the one that I have described, it is open to the biological parents to adopt their own children. Indeed, that may well prove to be the only option. It is something of an anomaly that, in adoption proceedings, the court would have the power to dispense with the consent of the surrogate and her husband and would be inclined to exercise that power if consent was not forthcoming.

If pre-birth parental orders are introduced, that will certainly assist, although it is understood that there will have to be some form of escape clause to deal with the problems of a surrogate changing her mind during the pregnancy. But where the issue arises post-birth, there will still need to be a satisfactory system to deal with parental orders. That could take the form of a welfare provision in relation to the child such as exists in adoption, which would make the welfare of the children paramount. Another possibility is that legislation could be amended to enable the court to dispense with the surrogate’s consent where consent was withheld unreasonably, or where the surrogate is not seeking to care for the child. Those two criteria are likely to overlap.

The situation is serious. The Law Commission is considering it. The Government should take notice of those concerns and take an early opportunity to legislate to deal with these serious lacunae.

Queen’s Speech

Lord Faulks Excerpts

Tuesday 24th May 2016 Lords Chamber

[Lord King of Bridgwater]

, as amended on Monday 23 May

That an humble Address be presented to Her Majesty as follows:

“Most Gracious Sovereign—We, Your Majesty’s most dutiful and loyal subjects, the Lords Spiritual and Temporal in Parliament assembled, beg leave to thank Your Majesty for the most gracious Speech which Your Majesty has addressed to both Houses of Parliament, but regret that the gracious Speech did not include a bill to protect the National Health Service from the Transatlantic Trade and Investment Partnership”.

[The Minister of State, Ministry of Justice (Lord Faulks) (Con)]

My Lords, it is a privilege for me to open the debate on Her Majesty’s gracious Speech in which we will be considering the Government’s priorities on the matters of home, legal, constitutional and devolved affairs in the year ahead. Underlying all these priorities, I should emphasise, is our commitment to be a one-nation Government who seek to extend opportunity wherever they can and help everyone in this country reach their full potential.

I turn first to the Government’s legal business. The prison and courts reform Bill included in the gracious Speech is, above all, part of a comprehensive strategy to reduce crime. It will reduce reoffending by making prisons places of education and purpose and ensure that our court system is accessible and proportionate. There is no doubt that our prison system is in need of reform. Those who work in our prisons—prison officers, governors, probation officers, charity workers and volunteers—do so tirelessly to support the individuals in their care and address the causes of their offending, and yet the system they work in hinders, rather than helps, their commitment to rehabilitation. They have to deal with an ageing estate, elaborate and centralised rules and regulations and increasing levels of violence and self-harm.

Those barriers to rehabilitation are reflected in reoffending figures. At present, nearly half—46%, to be precise—of adult prisoners are reconvicted within one year of release. The Government must therefore act to reduce those figures, cut crime and make our streets safer. The public would expect nothing less. However, an effective criminal justice system cannot afford to ignore the evidence on the causes of crime. We know, for example, that prisoners come disproportionately from harsh and violent backgrounds. Around two-fifths of them observed domestic violence as children, nearly one-quarter were taken into care and 47% do not have a single school qualification. So there will be a new emphasis on rehabilitation, based on a belief in the innate worth of every individual. Offenders, the Government argue, should be seen not simply as liabilities but as potential assets—people who can redeem themselves and contribute fully to society.

To achieve that, we need to unlock the potential not just of those in prison but of those supporting them, giving those at the front line the freedom to pursue what works. We will start by creating six reform prisons, where governors will be given more freedom over budgets, staffing and their relationships with business and charities. The Bill will support the creation of new reform prisons and provide that they are independently run and legally separate from the Secretary of State. The lesson of other public service reforms is that greater autonomy generates innovation. By giving such freedoms to governors we will allow them to choose the best education, training, healthcare and security for their prisoners. Reducing violence and self-harm will be a high priority since a calm, orderly environment is critical to the opportunity to rehabilitate.

These reforms will also allow for better accountability. There will be comparable statistics for each prison on reoffending rates, employment on release, and levels of violence and self-harm. That is how we will identify successful innovations and replicate them. These new freedoms for governors sit alongside our commitment to replace 10,000 places in ageing and ineffective prisons with new establishments better suited to the needs of prisoners today, to be built with £1.3 billion of investment announced at the spending review.

We also need to make sure that our courts and tribunals are operating efficiently and effectively and are able to deliver a system that is just, proportionate and accessible. The Bill will make justice more accessible to users by digitising the courts and tribunals system, making our systems easier to use and built around those who use them, while supporting those who are digitally excluded. It will enable us to get cases out of the courtroom that should not be there, so that a judge and a courtroom are used only where necessary. Across all jurisdictions, trained case officers will carry out routine case management, and technology will help to progress cases more efficiently and resolve more of them online. This will make for a more efficient courts estate.

We are making our family courts more focused on outcomes. More collaborative problem-solving approaches will be used, promoting better outcomes for families in the public and private family courts. We are also continuing the drive to make it easier for disputes to be resolved through mediation.

I turn now to the rule of law and to a crucial aspect of it: human rights, here and abroad. The Government remain committed to human rights, but we are committed to reforming domestic human rights law so that we can have a system that protects people’s rights but also commands the confidence of the public. This country has a proud tradition of respect for human rights, which stretches back centuries—long predating, I should stress, the Human Rights Act 1998. With that tradition embodied in Magna Carta, the Petition of Right, the Bill of Rights, the Claim of Right and other statutes, this country has always been a beacon for liberty and democracy. Indeed, our rights tradition has been exported all over the world.

That continues today. The UK has played a key role in dealing with the human costs of the conflict in the Middle East. We have contributed £2.3 billion to the Syrian crisis since 2012 and have committed to taking in more than 20,000 Syrian refugees by 2020. We have transformed the fight against sexual violence in conflict, persuading more than 150 states to agree for the first time that sexual violence should be recognised as a grave breach of the Geneva Convention.

That commitment to human rights and civil liberties is matched at home. The coalition Government scrapped ID cards and cut pre-charge detention. This Government brought forward the Modern Slavery Act 2015. The Government were elected with a clear mandate to reform the UK’s human rights framework. I know that noble Lords have eagerly awaited our proposals for a Bill of Rights, and I hope they will not be waiting much longer.

[Lord Foulkes of Cumnock (Lab)]

Having spoken about treating prisoners more humanely, the Minister is now talking about human rights. Why do the Government not accept the decision of the European Court of Human Rights in relation to prisoners’ votes?

[Lord Faulks]

The noble Lord will know that both Houses of Parliament have had a chance to consider this issue on more than one occasion. The House of Commons has decided by a significant margin that it does not wish prisoners to have the vote, and that remains the position.

As I indicated, the Government have a clear mandate, but I want to address some worries that have been raised and talk about what our proposals will not do. Our reforms are not about eroding people’s human rights. They are not about walking away from the list of fundamental rights set out in the European Convention on Human Rights. The Government are and will remain committed to the protection of those rights.

The problems that have been highlighted by many—all over this House and in the other place—about the way in which human rights have been applied are not to do with the text of the convention itself. Rather, they are to do with its interpretation, which has been extended far beyond what those who drafted it ever planned.

[Lord Falconer of Thoroton (Lab)]

Can we take it from that incredibly encouraging part of the Minister’s speech that the Human Rights Act as currently in our law will continue to reflect in its wording that of the European Convention on Human Rights?

[Lord Faulks]

What I in fact said was that the Bill when it emerges will reflect all the rights contained in the European convention, not the Human Rights Act. The Human Rights Act indeed reflects the convention. The way in which the convention has been interpreted is our quarrel with the Human Rights Act, not the contents of the convention itself.

We have seen claims brought by people who have themselves shown a flagrant disregard for the human rights of others. Even where claims are unsuccessful, the fact that they can be brought at all serves to undermine public confidence in the Act. So we will bring forward proposals for a Bill of Rights to replace the Human Rights Act. We want our Bill to protect fundamental human rights but also prevent their abuse and restore some common sense to the system. Our proposals will focus on the expansionist approach to human rights taken by the Strasbourg court. These are of course matters of great importance and there will be passionate views on different sides of the debate, but I hope that noble Lords will approach our proposals with open minds when they are brought forward for detailed consultation.

In that context, I was disappointed to read that Alistair Carmichael MP, the Liberal Democrats’ home affairs spokesman, said last week of the Bill of Rights:

“We will try to torpedo this plan in the Commons and Lords”.

First, we have not yet published our proposals, so it is a somewhat premature observation. Secondly, it is a clear manifesto commitment. Surely scrutiny, rather than destruction, is appropriate in the circumstances. Thirdly, if a torpedo is to be fired, the Liberal Democrat numbers mean that its arsenal is located here in Your Lordships’ House, the unelected House. I wonder whether the noble Lord, Lord Marks, when he comes to wind up for his party, would reassure your Lordships that, however rigorous the scrutiny of our proposals might be, it will not amount to an attempt at wholesale destruction. The public who elected this Government surely deserve better than that.

I shall now address the Government’s priorities on matters of home affairs. First, I turn to the Investigatory Powers Bill, which will govern the use of those powers by law enforcement, the Armed Forces, security and intelligence agencies and other public authorities. The Bill responds to three independent reviews of investigatory powers, including the statutory review conducted by the Independent Reviewer of Terrorism Legislation, David Anderson QC. The two other independent reviews, conducted by the Intelligence and Security Committee of Parliament and the panel convened by the Royal United Services Institute, have also been carefully considered.

Last autumn, a draft Bill was scrutinised by three parliamentary committees, which received a significant body of written evidence and heard from government and many other groups. The revised Bill, along with further explanatory material, reflected the majority of the recommendations of all the committees and reviews.

I reassure noble Lords that the Government appreciate that these powers, which have an impact on privacy, must be used with great sensitivity. Privacy is at the heart of this Bill, as it provides for greater protections and safeguards for existing powers and ensures that any misuse is punished. Powers are necessary to uphold the security that allows the public to enjoy that privacy. In the revised Bill we made privacy safeguards stronger and clearer, incorporating additional protections for journalists and statutory protections for lawyers. We have provided the time needed for a full parliamentary passage to ensure that Parliament gives the Bill the scrutiny that such an important piece of legislation deserves.

I am sure that noble Lords will agree that our pluralistic values make Britain a civilised country in which to live, but extremists with dangerous views try to undermine those values. We cannot tolerate this promotion of hatred and intolerance, which divides communities and sets people against each other. People in Britain today should never have to suffer hatred and violence because of their race, religion or sexuality; women should not be denied equal access to rights; and children should never be taught to despise the values that we all hold dear. We have delivered the counterextremism strategy to defeat all forms of extremism. As part of this strategy, we will bring forward new legislation to ensure that we are equipped to confront extremists and protect the public.

The gracious Speech also includes the Policing and Crime Bill, which will continue our reforms of the police. Since 2010, a radical programme of police reform has been under way. It has seen the introduction of directly elected police and crime commissioners to ensure greater accountability and transparency in policing. I pause there to congratulate the noble Lord, Lord Bach—not currently in his place—who was recently elected a PCC for Leicestershire. Although I am not sure that the party opposite wholly welcomes police and crime commissioners, it is good to see that they are joining in the system and embracing it fully.

The programme of reform has driven through efficiencies of £1.5 billion in cash terms. Crime has fallen by more than a quarter since 2010, with 2.9 million fewer crimes a year, according to the independent Crime Survey for England and Wales. The Bill will make the police more efficient and effective, enhance democratic accountability, build public confidence and ensure that the right balance is struck between the powers of the police and the rights of individuals. By providing police and crime commissioners with the ability to create more collaboration between police and fire services, the Bill also enables both emergency services to make significant savings in the delivery of their back-office functions.

The gracious Speech includes a Bill to introduce important changes to the way that this country tackles money laundering. This country has a robust anti-money laundering regime, but we must ensure that we can tackle the increasingly complex mechanisms used to launder illicit funds in order to allow our law enforcement agencies to identify and seize criminal assets. These changes will result in greater disruption of money laundering and activities that finance terrorism, as well as the prosecution of those responsible and the recovery of the proceeds of crime.

The gracious Speech sets out measures on how power is to be distributed across the UK and how decisions are taken. The Government are committed to establishing a secure settlement for the constitutional arrangements across our country—arrangements that provide the different nations of the United Kingdom with the space to pursue different domestic policies should they wish to do so, while protecting and preserving the benefits of being part of the bigger United Kingdom family of nations.

We said we would move quickly to implement the further devolution that all parties agreed for Wales and Scotland and deliver the Stormont House agreement in Northern Ireland. That is what we are doing. The Wales Bill would make the devolution settlement in Wales clearer by introducing a reserved powers model, like the system already in place for Scotland. The National Assembly for Wales will be able to legislate on any subject unless specifically reserved to Parliament. This Bill will also reflect the permanence of the Assembly and the Welsh Government in statute.

[Lord Hain (Lab)]

Will the Minister confirm that in the definition of the reserved powers, significant changes have been made to the draft Wales Bill which was widely criticised for clawing back, in effect, many of the powers that had been de facto devolved already?

[Lord Faulks]

There have been significant changes.

The Bill would also remove the requirement in the Wales Act 2014 for a referendum before a proportion of income tax is devolved. As I said, the National Assembly will be able to legislate on any subject unless specifically reserved to Parliament. The Bill will also reflect the permanence of the Assembly and the Welsh Government in statute.

Your Lordships’ House has a vital role as the scrutinising and revising Chamber of Parliament and will discharge, I am sure, the role with its usual diligence. But this Government firmly believe that the elected House of Commons should have the final say on the laws that Parliament makes. That should be the case for all legislation, however it is made. Last year, my noble friend Lord Strathclyde was asked to come forward with proposals to secure the decisive role of the House of Commons in the passage of secondary legislation. We are considering his recommendations carefully, alongside the recommendations of a number of committees of your Lordships’ House and the other place, and will respond in due course.

I know noble Lords will agree with me that there is a great deal in this important and highly topical legislation to consider. Much of the legislation has not yet been published. When it is, I feel confident that it will be carefully scrutinised. In the meantime, I much look forward to the debate today in your Lordships’ House, which I am sure will contribute greatly to the Government’s thinking. It is possible that the debate will not involve the forthcoming referendum, but I rather doubt it.