Queen’s Speech
Lord Garnier Excerpts(3 years, 7 months ago)
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Lord Garnier (Con)
My Lords, I cannot compete with the noble Lord, Lord Griffiths, a former president of the Methodist Conference, in his tribute to the right reverend Prelate. I will just add this: when my forebears were respectively the Dean and Bishop of Winchester, a little up the road from Portsmouth, they wore gaiters and were very old. I am now looking at a right reverend Prelate who is retiring from here and yet he is younger than I am; I find this extremely confusing.
I also congratulate the two maiden speakers: the noble Baroness, Lady Blake of Leeds, and the noble Lord, Lord Lebedev. Both gave truly excellent speeches, and the noble Lord gave what, to me, was a delightfully surprising speech. I had never heard him speak before and I was fascinated by what he had to say. I hope we will hear from both of them frequently in the future.
Time does not permit me to run through all that is in the gracious Speech, but there is much in it that your Lordships’ House can welcome. However, there is a good deal of legislation that we will need look at with care, not least the Government’s intentions with regard to judicial review.
Despite the intentions behind the Queen’s Speech, there is something missing from it. It is a matter that has been mentioned quite recently in this House: we need legislation to control and outlaw the predatory and immoral activities of quack counsellors or psychotherapists. There is, on the evidence laid before your Lordships several times already, a pressing need to criminalise controlling or coercive behaviour by persons providing psychotherapy or counselling services to vulnerable adults.
We protect children; we protect those with an intellectual incapacity or those suffering from mental illness; and we protect those suffering from the infirmities of old age. But we do not protect those over the age of 18 who, although ostensibly of an age to make up their own minds about how to live their lives and outside any definition of incapacity, are exploitable by charlatans offering them a service they are not qualified to provide and often for a large fee.
In the last Session, the noble Lords, Lord Marks of Henley-on-Thames, Lord Alderdice and Lord Hunt of Kings Heath, the noble Baroness, Lady Jolly, who I see in her place, and the noble Baronesses, Lady Mallalieu and Lady Finlay, all raised the issue—first, in a debate in early 2020, initiated by the noble Baroness, Lady Jolly, and then again in debates on the Domestic Abuse Bill earlier this year. My noble friend Lord Astor of Hever also played an invaluable role. The majority of contributors to those debates wanted either proper registration of these informal therapists or, in my case, a criminal offence similar to those enforced in Belgium, France and Luxembourg, to deter these charlatans.
Although there was support in principle from the Government, we were told by my noble friends on the Front Bench that progress on this entirely laudable and worthwhile project was hampered by two things. Either we were asking for change at not quite the right time or we had not quite found the right Bill to amend the law. In Committee on the Domestic Abuse Bill two months ago, I explained why the provision encompassing how we proposed to deal with quack counsellors would work, theoretically and practically, as an addition to the criminal law. Although not an exact replica, it was similar to laws in force in Belgium, France and Luxembourg, countries that adhered to the European Convention on Human Rights. Nothing that we are proposing would adversely affect citizens’ rights to free assembly, religious freedom, freedom of expression or private life. However, it would affect these rogues’ ability to predate on emotionally vulnerable young adults for malign purposes—to take their money and break up their families, and even to brainwash them. It would prohibit them pretending to be something that they are not—academically and practically qualified psychiatrists, psychologists and psychotherapists.
The Government, using the “wrong Bill” argument, made two points against the amendment in Committee. It was said that a new offence would alter the “dynamic” of a Bill specifically about domestic abuse and would upset the Bill’s “architecture”. It was also said that there were other remedies more suited to dealing with these issues, such as registration or accreditation by existing and respected professional bodies. No doubt requiring psychotherapists to be professionally qualified and accredited members of a professional body would enable well-motivated counsellors to gain standing and proper recognition, but to reinforce the value of membership of those professional bodies and accreditation by the law would make it a criminal offence for someone not qualified, registered and accredited to hold themselves up as being so. I refer, for example, to the Medical Act 1983 and the Solicitors Act 1974.
It was accepted in the last Session that we have been slow to appreciate the scale of coercive behaviour. The Government acknowledged that most noble Lords who supported our amendment to the Domestic Abuse Bill had pointed to evidence and, indeed, to specific cases that fraudulent psychotherapists and counsellors were taking advantage of their position to supplant friends and families in the minds and affections of their clients, using ill-gotten ways to turn them against friends and families. The law is deficient; there is a lacuna, but it can be filled, and we can possibly get hold of a provision in the professional qualifications Bill referred to earlier. I urge the Government to get on with it.
Trade Bill
Lord Garnier ExcerptsWednesday 6th March 2019
(5 years, 9 months ago)
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Lord Garnier (Con)
What else does the noble Lord have in mind in proposed new subsection (5B) when he uses the expression,
“but are not limited to”?
Lord Purvis of Tweed
As the noble Lord will know, we have engaged in a number of legislative standards across all the different aspects of the British economy. If they are not captured in proposed new paragraphs (a) to (g), which we believe to be comprehensive, and if there are some elements of the economy where legislative standards currently exist and we would consider them to be of equal status, there is a requirement for them to be protected. That is why these are baseline standards. If areas are excluded, they will be captured by “not limited to”. The list of standards is not necessarily designed to be open-ended; these are meant to be the existing legislative standards that are already on the statute book that we wish not to be impacted by any of the regulations that could be made through this legislation.
Lord Judge
My Lords, this amendment has very little to do with trade as such, but it raises a constitutional issue. If you looked at those supporting me on this amendment, you might even think that this is a bit of a geeky constitutional issue. It is not. All three of us are members of the Constitution Committee. We speak on our own behalf but feel it essential to draw the attention of the House to what we believe to be a total misunderstanding of the purposes of Explanatory Notes.
The misunderstanding arises in this way. Under the Bill, Clause 2(5) provides the regulation-making powers that may—forgive me for underlining this—among other things, “make provision”. Then there are paragraphs (a), (b), (c) and (d); paragraph (d) is about the penalties. We also looked at the Explanatory Notes. I wonder how many of your Lordships have recently looked at the front page of Explanatory Notes any Bill. I will read parts of them:
“These Explanatory Notes have been prepared by the Department … in order to assist the reader of the Bill and to help inform debate on it. They do not form part of the Bill and have not been endorsed by Parliament”.
I do not suppose that a single Member of the House is surprised by that because, constitutionally, it is impeccable. The Explanatory Notes do not form part of whatever legislation may at some future date be enacted by Parliament.
Faced with the wide-ranging regulation-making power, and that assertion in the Explanatory Notes, can we look at the Explanatory Notes themselves? Paragraph 59 —I will not read the first part—in unequivocal terms says that:
“Subsection (5) does not allow for regulations to make or extend criminal offences, charge fees, amend primary legislation other than retained EU law, or create new public bodies”.
The Constitution Committee produced a report on this that expressed some concerns. Noble Lords may remember that in the EU withdrawal Act there was an absence of safeguards, but eventually—through the efforts of Members of this House—safeguards were put into it that prevented the use of delegated powers to impose or increase taxation and fees, to create a relevant criminal offence, or to establish a public authority. That was the step. The Constitution Committee then looked at the provision in relation to subsection (5), to which I have referred. The committee noted that the Explanatory Notes contained the assertion that the Government were not interested in the worrying provision for creating criminal offences and the like, but that this was not stated in the Bill. The committee then pointed out what subsection (5) extends to and recommended that the Government introduce an amendment to include in the Bill the restrictions on the use of the Clause 2 powers set out in the Explanatory Notes. That is what this amendment is designed to achieve.
There is something rather strange about this. You win some, you lose some. If you lose, you come to the House to ask the House to look at it. In a sense, that is what I should do. However, a more important issue has arisen in relation to the response of the Minister, who in effect is saying, “Look, there is nothing to worry about—what are you getting so concerned about? Just read the Explanatory Notes. That is all you need”. Lest you think that I am exaggerating, let me read the words:
“we believe that the explanatory notes to the Bill, which explain the purpose of the provisions contained in the legislation, is the most suitable document to outline the restrictions to the use of the clause 2 power”.
In other words, the issues which were raised as being of concern to the Constitution Committee, and which were referred to in the Explanatory Notes showing that the Government did not wish to have the powers that would have been troublesome, were simply to be found by looking at the Explanatory Notes. That is a troublesome approach to these issues. As I am aware, it is new: “Look at what the regulations do not contain and you’ll find that in the Explanatory Notes”. It seems a rather strange way of going about legislation.
The letter from the Minister was followed by a reference to an observation by a former Law Lord—who sadly is no longer with us, the highly respected Lord Steyn—based on a decision of the House of Lords called Pepper v Hart in which it is said that he allowed for the possibility of looking at Explanatory Notes in exceptional circumstances. I would argue that that was not as an aid to construction but in effect to say, “If the Executive have said this, you can draw that to our attention while we resolve the issue”.
Pepper v Hart is a troublesome case. Perhaps I may summarise what it is meant to mean in the following way—hopelessly inadequately in view of the presence of some noble and learned Lords here. It means that you can look at what has gone on in the House if the legislation itself is unintelligible. Legislation should not be unintelligible; it should be intelligible. At this stage when we are looking at this legislation, if it is not, we should make it so.
On how far Lord Steyn went about allowing for examination of Explanatory Notes, if it offered a diminution of the principle that Explanatory Notes are not, never were meant to and never should be treated as a legislative provision, I say with great respect to Lord Steyn that I think he got it wrong. I do not believe that that was what he was saying, but if he did it is wrong. We surely must not countenance the arrival of a pernicious new form of legislation, the Explanatory Note. We have enough trouble with guidance. Guidance is a seriously problematic source; it sort of hands over power to the Executive, but at least when we do that we have listened to the debate, have decided that that is the right way to approach the problem and have legislated accordingly. In relation to Explanatory Notes, there has never been a debate; there has never been anything. This comes from the department. The department tells us what the department thinks it wants. It cannot possibly be a guide to what we in this House or in the other place decide that the legislation should be. But we will now look at the department’s own Explanatory Notes to decide whether a provision which is an important safeguard against regulations creating criminal offences, imposing fees, amending primary legislation or creating new public bodies should be found. It is a constitutional absurdity. I beg to move.
Lord Garnier
My Lords, if the noble and learned Lord, Lord Judge, thought that his thinking was inadequate compared to that of Lord Steyn, it is the only inadequate thing that he just said. I rise briefly to encourage him in his arguments and to encourage the Government to understand that it is not only on the Cross Benches and on the Liberal Democrat Benches that the concerns that he has expressed can be found.
I want to look at Clause 2 through the lens of Amendment 3A, because it gives both United Kingdom Ministers and devolved Administration Ministers the power to make regulations that make provision among other things to modify primary legislation and impose penalties, as the noble and learned Lord, Lord Judge, pointed out.
Lord Garnier
Can I press my noble friend a little further? Why does she not simply arrange for Amendment 3A to be included in the Bill?
Baroness Fairhead
My Lords, there is a genuine difference of legal opinion here. My proposal is that we reflect on this and have a meeting, if your Lordships are content to do that, because we have to work through this.