UK-US Co-operation on Using Atomic Energy for Mutual Defence

Lord Goldsmith Excerpts

Wednesday 23rd October 2024 Grand Committee

Moved by

[Lord Goldsmith]

That the Grand Committee takes note of the Amendment to the Agreement between the United Kingdom and the United States of America for Cooperation on the Uses of Atomic Energy for Mutual Defence Purposes, laid before the House on 26 July.

Relevant document: 2nd Report from the International Agreements Committee

[Lord Goldsmith (Lab)]

My Lords, I welcome the opportunity to debate the International Agreements Committee’s two reports on the related topics of the UK-US mutual defence agreement and the AUKUS agreement. I thank the Government for making the time available for this debate.

I will start with the MDA, which entered into force in August 1958. I am looking forward to this debate, particularly because it includes some new members of the committee; I am very pleased to welcome them to the committee as well. The MDA has been amended several times since it entered into force in August 1958, most recently in 2014. It provides for the exchange of nuclear materials, technology and information relating to nuclear weapons, although it does not provide for the transfer of nuclear weapons themselves. It underpins the UK’s nuclear weapons programme, and as such is a key part of the special relationship.

Despite the MDA being described as the cornerstone of the defence nuclear relationship between the UK and the US, amendments to the agreement in 1994, 2004 and 2014 were not subject to debate in Parliament or a Select Committee report. External stakeholders such as CND and the Nuclear Information Service have raised concerns about the lack of parliamentary scrutiny of previous amendments to the MDA and have called for a debate on the most recent amendments. I am therefore very pleased that we are having this debate today.

The amending agreement should be considered in the context of key developments to the UK’s nuclear deterrent. The UK is currently in the process of modernising its nuclear capabilities and nuclear-powered submarines, aiming to replace its four Vanguard-class ballistic missile submarines with the new Dreadnought class from the early 2030s. A programme to replace the UK’s nuclear warhead was also confirmed in February 2020. In March 2024, the previous Government published a new Defence Nuclear Enterprise Command Paper, which sets out the long-term approach to investing in and developing the UK’s nuclear deterrent. The United States is also currently modernising its strategic nuclear capabilities.

The amending agreement should also be considered in the context of particular concerns. Some commentators have criticised the MDA as it risks the UK appearing to become overdependent on the US in relation to developing an independent nuclear weapons programme. However, the Ministry of Defence told us that co-operation with the US is based on the understanding that the UK’s strategic nuclear deterrent remains independent.

Turning to the committee’s report, we make two main recommendations: two key conclusions, both related to the unsatisfactory arrangements for parliamentary scrutiny of the MDA. First, we welcome the expectation that ratification of the amending agreement by the US will be completed within the terms of the current Administration and Congress. But we also observe how the thorough congressional scrutiny processes contrast starkly with the inadequacy of our own arrangements.

The US began its process of ratification earlier than the UK. Under the Atomic Energy Act, Congress has the opportunity to review a nuclear co-operation agreement for two periods totalling 90 days of continuous session. That is 30 days of consultation with relevant committees and 60 days during which Congress has the opportunity to adopt a joint resolution of disapproval. The Ministry of Defence has indicated that the period for congressional review has now concluded. By contrast, under the Constitutional Reform and Governance Act, or CRaG, Parliament has only 21 sitting days in which to scrutinise a treaty, take evidence and report on it, and hold a debate.

Considering the MDA’s role in forming the cornerstone of the UK-US defence and security relationship, the committee particularly regretted the lack of sufficient time to take evidence on this important agreement. This is yet another example of the shortcomings of the CRaG regime. Noble Lords may be interested to know that the committee is currently considering and conducting an inquiry into how parliamentary scrutiny of treaties can be improved in future. We have commented on this in previous reports.

In our second conclusion, the committee drew attention to a specific change in the amending agreement, which will potentially reduce the already scarce opportunities for Parliament to scrutinise the MDA. This concerns Article III bis, which provides for the transfer of non-nuclear parts, enriched uranium, special nuclear material and equipment. Article III bis is time-limited and has been renewed on a 10-year cycle since the 1980s. The requirement to approve revisions to Article III bis has also provided the opportunity for both parties to make further amendments to other parts of the MDA. Article 5 of the amending agreement amends Article III bis so that its provisions are “extended indefinitely”, with no requirement for periodic renewal. Given the strategic importance of UK-US co-operation at this critical time in replacing the UK’s nuclear deterrent to maintain the country’s security, the committee is concerned at this reduction in scrutiny opportunities and calls on the Government to commit to providing a report to Parliament on the progress and operation of the MDA every 10 years. That is a critical conclusion and recommendation of this committee.

Having dealt with the MDA, I want to turn now to the committee’s report on the AUKUS agreement relating to co-operation on naval nuclear propulsion, which forms part of the broader trilateral defence and security partnership between the UK, the US and Australia. This agreement has been made under pillar 1. The first phase of the partnership focuses on supporting Australia to acquire its first conventionally armed, nuclear-powered submarine fleet. Upon its entry into force, it will supersede the current exchange naval nuclear propulsion information agreement, which entered into force in January 2022. That agreement, which I shall call the ENNPI agreement, allowed for the exchange of information to facilitate an 18-month study into the delivery of a conventionally armed nuclear powered submarine capability to Australia. The committee reported on that agreement on 13 January 2022, drawing it to the special attention of the House, and a debate was held in Grand Committee on 17 January.

The new agreement will allow the UK and US to support Australia in acquiring its first conventionally armed nuclear powered submarine fleet from the 2030s. As well as allowing the continued exchange of naval nuclear propulsion information, it will authorise the transfer of material and equipment relating to naval nuclear propulsion, including special nuclear material in complete welded nuclear power units. That will enable UK industry to support Australia in building a trilaterally developed submarine, incorporating technology from the UK, the US and Australia.

The AUKUS nations have released a joint statement detailing the progress made since the announcement of the optimal pathway in March 2023. The specific progress includes: increased education and training of Royal Australian Navy personnel and specialised US and UK schools; increased industry training to build and sustain nuclear-powered submarines; and preparatory activities to build Australia’s capacity ahead of establishing the submarine rotational force-west by 2027—that is, the rotational presence of UK and US nuclear-powered submarines at HMAS Stirling.

The committee welcomes the significant progress made in the delivery of pillar 1 of the AUKUS partnership. Nevertheless, we must also be mindful of some risks, as well as opportunities, highlighted by some defence commentators. For example, Dr Sidharth Kaushal, writing for the Royal United Services Institute, warned against the sale of the Virginia class to Australia appearing as a diversion of capacity from the US Navy and of the need to manage design trade-offs as well as human capital. Similarly, Andrew Dowse, the director of RAND Australia, outlined risks such as public perception challenges in relation to cost, nuclear proliferation and implications for the sovereignty of an Australian submarine fleet.

I will briefly summarise the link between the MDA and AUKUS agreements and why we are debating both reports together today. The AUKUS submarine fleet will incorporate designs and technology from both the UK and US, so the MDA could have a key role in enabling the exchange of nuclear propulsion technology and information sharing between the parties. The AUKUS submarine will be based on the UK’s next-generation nuclear-powered submarine design and will include US technology based largely on the Virginia-class SSN, including nuclear propulsion technology and components, and a common vertical launch system and weapons. The Ministry of Defence, from which we took evidence, acknowledged that although they represent two separate agreements, the MDA added value to the AUKUS trilateral agreement and that, without the MDA, we would not have the ENNPIA or AUKUS pillar 1.

Before I conclude and look forward to the debate, I thank the Ministry of Defence for its co-operation in assisting our scrutiny work. I thank my colleagues on the International Agreements Committee, a number of whom are here, for their hard work and support. I also thank the officials of the committee, who have to work on what I have already identified as a very tight timetable to prepare reports, briefs and drafts for us, a feature to which we must have regard when we look, as I hope we will, at a revision of CRaG. Finally, I thank those who offered us a slot for debate in Grand Committee within the CRaG period. I beg to move.

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[Lord Goldsmith (Lab)]

My Lords, I thank noble Lords for participating in this debate. As the noble Baroness, Lady Smith of Newnham, said, it has been an extraordinarily wide-ranging debate. I had not expected so much knowledge to come out about Australian politics. I do not know a lot about it, but now I know much more, thanks to the noble Baroness, Lady Bennett of Manor Castle—but obviously noble Lords spoke about the great geopolitical questions that we are concerned with. To the noble Lord, Lord Hannan, I have to say that, with regards to matters of history, I tend to side with the noble Lord, Lord Hannay, but he may persuade me one day.

I want particularly to thank the Minister. He has made two personal commitments today for which I am very grateful. One is how we deal with the renewal question, which I shall come back to. The second is what he said about helping to educate his colleagues about the limitations of the CRaG process, which I hope will help us to pursue the amendments which I and others believe are necessary.

I have talked about this issue in the House before. Once upon a time, of course, Parliament did not have any right to look at treaties, unless a Minister chose to bring them. All treaties were made under the royal prerogative, and there was no process for parliamentary scrutiny as a matter of generality. CRaG has changed that, and that is very good, but it is limited. It is limited in terms of time, as noble Lords have said—and it is extraordinary how difficult it can be. When one says from time to time, “I pay tribute to the work of the committee staff and the officials”, it really is the case here. Our committee staff—and our clerk, Rhiannon Williams, is sitting in the Public Gallery—have to pick up these treaties, often at short notice, and find expert evidence that will help us, because we do not necessarily know all the answers, so finding people who can help the committee is very important.

We then need to get a report done in time to meet the CRaG scrutiny period, which is limited, and we depend on the Government. I do not want to be political about this, but this committee produced an important report on Rwanda, which it was actually quite important for Members in the other place to debate, because they are the ones who have the right under CRaG to say, “Don’t ratify this now”. We did not in a sense have a statutory right. But to do that, they needed to have time for a debate, and that was in the hands of the Government. There are issues about time for debates that are also important. That is why I started by thanking the Government for making time for this debate—and I repeat that thanks now. So we will continue to look at the CRaG process and we will come forward with some proposals for reform. I shall take the Minister up on his promise to talk to his colleagues about that when we have formulated precisely what we think should happen.

The second thing is the commitment that the Minister has made in relation to renewal. This was a matter that exercised the committee. On one hand, taking away the 10-year renewal—or, to use different language, the break clause—adds to our security, because it means that there is an evergreen commitment to do those things that the agreement does, and that is a good thing. But, by a sidewind, it takes away parliamentary scrutiny at the same time, which was what exercised the committee. So our proposal that the Government should none the less come forward to Parliament and tell it every 10 years, taking the same period as was in the previous arrangements, is a good way to ensure that there is still some scrutiny.

We will look at precisely what the Minister’s officials come forward with. He has made an in-principle commitment—I understand entirely why that is so. He will not be surprised to hear me say, using the same words that the noble Baroness, Lady Goldie, used, that we will hold him, as it were, to account—the Government to account—for making sure that there is a scrutiny which works.

I very much welcome the support for reform that we had from a number of people: the noble Lords, Lord Howell, Lord Hannay and Lord Bilimoria, and others as well, and we will follow that through.

I do not think there is anything more I need to say about this debate. It has been a great privilege. Well, there is one thing I want to say. The noble Lord, Lord Udny- Lister, referred to dealing with this committee as being like herding cats. He said it was a formidable committee, and it is, but that is because of its members’ expertise, talent and experience, not because of any feline qualities that they might have. However, it is a great privilege and a pleasure to chair this committee. It is doing important work, and the fact that we have a debate in which it is not just the members of the committee who came to speak—although it included them—is very welcome. With those words, I beg to move the Motion standing in my name.

Motion agreed.

Legal Aid

Lord Goldsmith Excerpts

Thursday 10th December 2015 Lords Chamber

[Lord Goldsmith (Lab)]

My Lords, I, too, congratulate my noble friend on initiating this debate. That he opened the debate as a non-lawyer is not a deficiency; it is a strength. It underlines the fact that legal aid is not just a specialist interest for the legal profession: it is about ordinary people, and everyone in our country who needs legal advice and legal assistance. I want to speak about one particular aspect of that—the effect of the legal aid cuts on the voluntary sector, which provided a great deal of support to people in need. I declare interests as the current chairman of the Access to Justice Foundation and as the founder and president of the Bar Pro Bono Unit.

It is also important to take account of the effect on young people in the legal profession. I note that among the speakers for this debate are two former Lord Chief Justices and one former member of our highest court. I hope and expect that they, as well as the other distinguished speakers, will be able to draw attention to other features that I shall not touch on in my few brief remarks.

Legal advice can make an enormous impact on people’s lives. It can help to reduce poverty and suffering. It has been shown that it also has an impact on government services. If we reduce welfare advice there is an effect on doctors: the amount of advice that they then must give adds even further to their burdens in the National Health Service. That is why legal aid was originally intended to provide a structure to enable legal issues to be identified at an early stage, as well as to deal with disputes once they had arisen.

In that field, the law centres and the citizens advice network have played an enormously important part—but the law centres have lost 40% of their funding since 2011. They used that funding enormously effectively, partly to fund some of their other services, because they could use the green form scheme and other schemes to fund their general activities. Let us take one statistic as an example. In 2005, 30,000 women were dismissed as a result of pregnancy discrimination. In 2015, the figure was 54,000. Where do those women get legal advice, and where do they get the money to pay tribunal fees? It has become so difficult for them to get help and enforce their rights.

The law centres were also able to adopt a holistic approach to people’s problems. People would come in with a specific problem—a dismissal from employment, a redundancy notice or a particular problem with debt—but the workers in law centres and citizens advice bureaux would often discover that that was only one of the problems that that individual had. They would often have a number of other issues to deal with, which was overwhelming for many people, but the specialist advice available enabled them to access other streams of advice within the centres, which would help to solve their problems. They would often get advice on more than one issue.

How is this now being dealt with? I will touch in particular on the advice and support given by those outside the paid lawyers and the legal aid system, although I utterly support that system and agree with all that my noble friend said. The knock-on effect on our court system is already enormous: a 30% increase across all family court cases in which neither party had legal representation. That is a very serious result. Over the last three years, the number of litigants in person applying to the Bar Pro Bono Unit for help has increased 30% year on year. These are all people who cannot access justice without this assistance and they have to come to free legal advice. The Ministry of Justice report on litigants in person in private family law cases found that only a small minority of litigants in person were able to represent themselves competently in all aspects of their family law proceedings. Any of us who have had any dealings with some of these areas—even the lawyers—will know that that must be the case. These are immensely complicated, difficult areas and the procedures of our courts make it more difficult still, despite all the efforts of the senior judiciary to make it more straightforward.

There is much talk, therefore, of lawyers doing more. The Secretary of State for Justice has talked about this. In fact, and I speak from experience, the pro bono intentions of lawyers are strong. When I established the Bar Pro Bono Unit I wrote to all barristers and asked them to volunteer 20 hours or three days of their time a year. The response was overwhelming. In my experience they are always willing to give of their help. But while they give voluntarily of their time, there is also a need for infrastructure to challenge that need. That is why organisations such as the Access to Justice Foundation raise money to support organisations that provide free legal advice. That is why it is important that they should be supported in doing that.

However, even with the profession’s best intentions there will always be a gap and a need for legal services that is unmet—not from Russian oligarchs or wealthy divorcees, perhaps, but from people who need legal advice to deal with the problems that are overwhelming for them in their everyday lives. I take this opportunity both to thank those who support the pro bono organisations and the voluntary sector that do that, but also to encourage the Government to recognise that they cannot turn to the legal profession simply to say, “Pay more money in this way to support these services”. Although the pro bono sector is hugely important, it can never be a substitute for a properly funded legal aid system.

British Bill of Rights

Lord Goldsmith Excerpts

Thursday 10th December 2015 Lords Chamber

[Lord Faulks]

My Lords, the legislation passed by the Russian Duma does not actually mean that Russia is leaving the ECHR. It was a response to a decision of the ECHR about the unfettered right to tap phone calls and Article 8. This Government remain absolutely committed to the protection of human rights, both here and abroad, on this international Human Rights Day. We are party to no fewer than, I think, seven explicit treaties protecting human rights, as well as many others which bear on them. We will remain within the convention and the obligations under Article 46. Any future plans will involve the protection of all those rights contained within the convention.

[Lord Goldsmith (Lab)]

My Lords, does that mean that the Government accept the proposition put by the noble Lord, Lord Marks, that they will not try to rule out the obligation of this country to comply with decisions of the European Court of Human Rights? Does the Minister agree that, given the proud history that this country has had leading other countries in Europe, if we were to take a different view it could mean the dismantling of the fairer and more just Europe which we in this country, including his party, have tried to maintain and to build?

[Lord Faulks]

As the noble and learned Lord knows, Article 46 requires all members of the Council of Europe to adhere to the convention, and the implementation of decisions is subject to the supervision of the Committee of Ministers. We have an extremely good record in complying with recommendations of the Committee of Ministers. There is one outstanding matter, of which the House is well aware, where there is a tension between a decision clearly made by Parliament and a decision made by the Committee of Ministers. My ministerial colleague attended the day before yesterday; we have yet to hear the outcome.

European Union Referendum Bill

Lord Goldsmith Excerpts

Wednesday 18th November 2015 Lords Chamber

[The Deputy Speaker (Lord Brougham and Vaux) (Con)]

My Lords, I must advise the House that if this amendment is agreed to, I cannot call Amendments 3 or 4 due to pre-emption.

[Lord Goldsmith (Lab)]

My Lords, first, I apologise to the House that I was not here in Committee. I was overseas and therefore unable to speak to the amendment. The noble Lord, Lord Green, is quite right: I indicated to him that I was sympathetic in principle to his amendment, and I will explain why. I preface that by making clear that my personal position about the EU is that I very much hope that everyone will vote to stay in, but that is for another day.

After I had left office, I was asked to produce a report on citizenship by the then Prime Minister, the right honourable Gordon Brown. It became clear to me as I did that, with the assistance of people in government, that the concept of citizenship today is very blurred. That is because rights that once upon a time belonged to citizens only now belong to others, and because we have few ways to distinguish citizens in the way that some other countries do. In a report that dealt with a number of recommendations, I looked at whether there were reasons to be clearer as to what being a UK citizen meant.

In saying that, I want to make clear that one thing that came across to me was that, despite that lack of clarity, many people were enormously proud of the fact that they were UK citizens, particularly those who had become UK citizens. I attended a number of citizenship ceremonies, and it was very moving to see how proud people were of the fact that they had become British. I tried to hold a ceremony at Wembley Stadium, which was a great success but for the fact that, apparently, rights to pictures of the stadium itself had been sold to commercial enterprises, so we had to keep the curtains closed during the ceremony.

It is for that reason—it is a matter of considerable importance in principle—that we should be clear about what are the rights and responsibilities of our citizens, and that I recommended we should phase out some of the anomalies that enabled people who are not UK citizens to vote in general elections.

I am glad that the noble Lord, Lord Green, has dealt with the question of Irish citizens, because that was one qualification that I made in my report, and that his amendment, as it now stands, also has a form of phasing out, because that was also a recommendation that I made. But the principle remains right, and I am sorry that no Government have yet taken it up; this may turn out not to be the occasion for it to happen. But it is right that we should look at our citizenship regime and look at what being a citizen means so that people can feel not just proud but inclusive, not just because they have a closeness to this country but because they belong and are a part of it. At the time of the tragedies that took place in Paris—and we have seen similar things—nothing could be more important than that people feel a very strong affinity to their country.

[Lord Hamilton of Epsom]

Would the noble and learned Lord agree that, if the next amendment were to be passed, it would change the franchise so that 16 and 17 year-olds, probably permanently, were entitled to vote in general elections as well as this referendum? Are we not saying that this is as good a moment as any to change the franchise on this one as well?

[Lord Goldsmith]

The noble Lord and other noble Lords will have their own views on the next amendment, which I support, but I do not think it affects the principle of what I have been saying.

[Lord Hannay of Chiswick]

Could the noble and learned Lord confirm my own impression from reading the report he wrote and to which he referred, that the phasing-out approach that he took bears no relation at all to the phasing out in the amendment before the House now, which is not a phasing out but a guillotine at the beginning of 2017? If I remember rightly—he will correct me if I am wrong—he proposed that those Commonwealth citizens who currently have the vote from this country should not have it removed from them. That is a very different proposition indeed.

[Lord Goldsmith]

The noble Lord is right about that. Mind you, if the recommendation had been taken up in 2008 when I wrote the report, who knows where we would be today?

[Lord Wallace of Saltaire (LD)]

My Lords, since the noble Lord, Lord Green of Deddington, mentioned our conversation, perhaps I may say one or two things. We all recognise that our current franchise and our concept of citizenship are a mess and need attention. We are about to debate under some of the following amendments how much attention we should give to tidying up our franchise now, or whether it should be addressed more broadly later. On citizenship, I am very struck by the extent to which dual citizenship extends across Britain and elsewhere. I asked several times when in government how many dual citizens there were scattered around the world, and the answer was always that we do not know. I recall a visit to northern Cyprus in which my driver told me that he was a British citizen, a Turkish citizen, a Greek-Cypriot citizen and a Turkish-Cypriot citizen, and he enjoyed choosing between them as he travelled as to which passport he might take. As the noble and learned Lord, Lord Goldsmith, said, the question of citizenship is extremely fuzzy.

The question of when we would have the referendum is addressed in the amendment. I hope we have it before 1 January 2017. I have some doubts as to how far we should address this broader issue now, in this specific case, although we will address it again under further amendments.

Finally, I congratulate the noble Lord on his argument that we should use this as an example of where we might harmonise with other member states. I assume that that comes from his commitment to ever-closer union.

Human Rights: UK Application

Lord Goldsmith Excerpts

Wednesday 18th November 2015 Lords Chamber

[Lord Goldsmith (Lab)]

My Lords—

[Lord Forsyth of Drumlean (Con)]

My Lords—

[The Lord Privy Seal (Baroness Stowell of Beeston) (Con)]

My Lords, I am sorry to intervene. As you know, at Question Time we try to apply a number of principles. It is the turn of the Conservative Benches, but I think on this occasion the House is calling for the noble and learned Lord, Lord Goldsmith, so we will go to him, and then we will, I hope, have time for a Conservative.

[Lord Goldsmith]

It is good to hear from the noble Lord the commitments to human rights and also, particularly, what he said in answer to the noble Lord, Lord Lexden. There is a more basic problem, as the noble Lord will know, even more so than that of same-sex marriages, which is the criminalisation of homosexuality in certain parts of the world. What can the Minister say about the British Government’s persuasion of other countries, particularly Commonwealth countries, to get rid of the criminalisation of homosexuality and treat people decently in that respect?

[Lord Faulks]

The Government maintain their firm resolve to do all they can to protect human rights, both here and abroad. It is a tradition which precedes this Government; it was part of the coalition Government’s policies and, indeed, those of the previous Labour Government. Nothing about any changes we might wish to make to the domestic arrangements has in any way diminished our enthusiasm or determination in that area.

Social Action, Responsibility and Heroism Bill

Lord Goldsmith Excerpts

Monday 15th December 2014 Lords Chamber

[Lord Goldsmith (Lab)]

My Lords, I support what has been said by my noble friend Lord Beecham and by the noble Lord, Lord Pannick. As a practising lawyer, the idea of having to bring this into effect and applying it in the context of an actual case fills me with horror. I do not know how one would start to go about it. I do not see the benefit the clause brings and I see grave dangers in its application. I was particularly taken by the comment of my noble friend Lord Beecham that this does not even necessarily apply to cases of personal injury or injury of that sort—it can apply to economic loss and to many other sorts of cases. I do not see how this sort of drafting can conceivably be appropriate for such cases.

[Lord Woolf (CB)]

Will the Minister, when he comes to reply, assist me? I do not see how this clause will apply if there are two defendants, one of whom has shown a generally responsible approach towards protecting the safety or other interests of others and the other who has not exercised that approach. It seems to me to be very worrying from that point of view. I always understood that it is not your general behaviour that the court has to look at in order to find whether you are negligent but your behaviour on the particular occasion when you are said to have committed a tort. If one is going to look at the person’s general behaviour in deciding actions for tort, these are going to take a lot longer to resolve than they have hitherto.

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[Lord Faulks]

The Bill is described in its preamble as being to make,

“provision as to matters to which a court must have regard in determining a claim in negligence or breach of statutory duty”.

I do not see any reference to breach of contract there. But the noble Lord is right in the sense that Clause 3 refers to,

“a generally responsible approach towards protecting the safety or other interests of others”.

That would open the door to the possibility of other interests being considered. Having regard to the general structure of the Bill, I would not wish to add anything to what was said in the House of Commons. I imagine that it is going to be focused primarily on conventional personal injury cases.

[Lord Goldsmith]

I am sorry, but I wonder how the noble Lord can make that observation. If a claim comes before the courts, where there is an allegation of breach of statutory duty or negligence, which as he would readily concede could be negligence arising from a contract, how is that clause to be avoided? For example, the accountant says, looking at the wording of Clause 3, “The activity that I carry out is doing people’s tax returns and advising them on that; I have done it for the last 10 years and I am now going to tell the court about my record”. How do the words in the clause prevent that from being done?

[Lord Faulks]

Let me deal with the hypothetically negligent accountant. As I said in answer to previous questions, the Bill is concerned with the activity in question, so it would be the particular tax return or the particular piece of advice, because that is what the Bill says.

[Lord Goldsmith]

It would not be this tax return, surely, but the activity of advising on tax returns generally.

[Lord Faulks]

I respectfully disagree with that interpretation because it is concerned with the activity in question,

“in the course of which the alleged negligence or breach of statutory duty occurred”.

It would not, therefore, deal with the 99 years of accurate tax returns but would focus on the particular tax return that is the subject of the claim in negligence. That is the correct interpretation of the particular clause.

I will answer the question that I hear from a sedentary position: how do we deal with the question of “generally”? My answer to that is that the “generally responsible” approach is directed at the activity in question. It is difficult to see, frankly, that it would have much of an application on the hypothetically negligent accountant—

Criminal Justice and Courts Bill

Lord Goldsmith Excerpts

Wednesday 30th July 2014 Lords Chamber

[Lord Faulks]

The answer, I think, to the noble and learned Lord’s question is that Clause 65(1)(b) states that the information will be specified in the rules of court. The anxieties expressed in the Committee and by those who have provided briefings and written articles are clearly matters that will be taken into consideration, and we do not want to stifle proper judicial reviews or make people feel anxious about small contributions. These matters will be taken into account. However, for the reasons that have also been outlined in argument, we cannot specify in this statute every single, precise situation.

I hope that I have gone some way to reassure those who have sought—

[Lord Goldsmith (Lab)]

I am grateful to the Minister for giving way. I was taken by a remark he made a few moments ago. I was listening attentively to everything that he and noble Lords have said. He seemed to suggest that these changes were here simply because the senior judiciary had asked for them. Is that what he was saying, because I am surprised if that is the position?

[Lord Faulks]

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

--- Later in debate ---

I can go further and say that there have been cases before the courts on judicial review applications where both parties had reasons not to draw the court’s attention to how third parties might be affected by their argument. That is why, in certain proceedings—as my noble friend Lord Pannick pointed out in his very appropriate submissions—the Crown has to intervene to ensure that the matter is explored by the court. If the court was unaware of the dimension that I have just referred to, it might make a decision in the course of its judgment that would be quite contrary to the decision it would have come to had there been an intervention. I hope the Minister can try to assist noble Lords on that matter.

[Lord Goldsmith]

I utterly support everything that has been said in opposition to this clause but I want to deal with it from a slightly different perspective—from a government perspective. When I was in office I was responsible for many of the judicial reviews that were taken against the Government, either dealing with them myself or supervising and watching other advocates deal with them. I also from time to time made interventions, a subject to which the noble and learned Lord, Lord Woolf, referred. I hope that the Minister will take on board the important point that the noble and learned Lord has just made and take it back to his colleagues. This is public law and an area where the decision will affect many others. I often found, in cases where there was an intervention, that it was because of the intervener that the real issue emerged. That was often because it was the noble Lord, Lord Pannick, who was making the intervention—my heart often sank when he came up because I knew we were in for a tough fight. However, I knew that the real issue would be there and that, as the noble and learned Lord, Lord Woolf, said, the implications for third parties would be properly brought forward and understood. That is critically important when a court is making a decision.

The noble Baroness, Lady Lister, said that the Government are in listening mode, and I hope that they will listen on this. As a young barrister, I recall being told by a senior official from the Treasury Solicitor’s office when I said, “I hope we win this case”, that the Crown “neither wins nor loses cases; we simply clarify the law”. As an ambitious young barrister, that was not my approach to things, but it is not actually a bad approach. The Government should care that the law is clarified and that it is clarified in the best possible way. That will often require interveners, who will make sure that the right issues and the proper arguments are brought forward and that the full implications are understood. I cannot see any reason for this clause being there other than to chill such interventions. That would be a very bad thing for the course of justice and I hope that the Government will think again.

[Lord Judge (CB)]

My Lords, I endorse, from the point of view of England and Wales, what my noble and learned friend Lord Carswell said about his experience at first instance and in the Court of Appeal in Northern Ireland. On one view of the clause, the Supreme Court is being discriminated in favour of. The Supreme Court consists of five, seven or nine of the brightest legal minds in the country—in the whole country. One judge sitting alone at first instance, or three judges sitting in the Court of Appeal, do not have that same intellectual power. It is immensely helpful to the judge or to the Court of Appeal to have an intervention, leave for it having been granted by somebody who knows something about issues which might have been overlooked.

Criminal Legal Aid (General) (Amendment) Regulations 2013

Lord Goldsmith Excerpts

Wednesday 29th January 2014 Lords Chamber

[Lord Carlile of Berriew (LD)]

My Lords, given the current clamour for repentance in some quarters, it is a real pleasure to follow a sinner who hath repented. The noble and learned Lord, Lord Brown, makes an extremely powerful point in reminding us that these are cases in which the merits test has been passed. Therefore, the Government are deliberately excluding from access to litigation people who have been advised that they have merit in their case. That is a matter of real concern.

I, too, applaud the noble Lord, Lord Pannick, for moving this Motion of Regret—the third Motion of Regret, or similar, in a run of these legal aid regulations. This fact, in my view, should cause Ministers and the Government Front Bench real concern. There is more or less united opposition to these regulations among the informed. I would have thought that that evidence was as good as one could wish for.

I also want to pick up a point on mental health made by the noble and learned Baroness, with all her experience of the judiciary. It is often a matter of pure chance whether a child or adult with a serious multiple mental health history ends up in prison or in hospital. It may depend on where they were standing when a florid episode took place, whether there was a sympathetic or an unsympathetic police officer present or whether or not their family was there to protect them. It is purely because of a small event that one person may now be in a hospital, with all the care that a hospital provides, and the capacity to obtain legal aid for important litigation that may establish the course of the rest of their lives, and another may be in prison, where, apparently, they are to be deprived of access to that litigation. That seems to me profoundly unjust.

The third and final point I will mention—trying not to take up too much of your Lordships’ time this evening—relates to children and young people and the work of the Howard League for Penal Reform, of which I was president but am no longer. On 13 December last, the Joint Committee on Human Rights stated that it was “disappointed” that the Government had pursued the removal of matters from legal aid relating to young people and, in particular, resettlement cases. The committee said:

“The issues concerning young people may involve matters of housing law, social care law and public law of such complexity that they require access to legal advice and assistance in order to investigate and formulate their case”.

There are, of course, some very good lawyers in this House, but there is not a lawyer in this House who would not be challenged by some of these cases. The Howard League has a legal team that has helped literally hundreds of children make fresh starts and secure long-term support on statutory funding. The result has often been to allow them to be released safely, having served the shortest appropriate time in prison. They have often been able to move on not just to lives which are free of crime but to lives which are positive in a much broader sense.

In turn, this has led not only to justice on their part but has saved the taxpayer a huge amount of money. It is extremely expensive keeping young people locked up. Therefore, I say to my noble friend the Minister that I doubt very much that any robust cost-benefit analysis has been done on removing legal aid from children in custody rather than allowing them the legal aid which the expert legal team at the Howard League—and, of course, elsewhere—has utilised to bring benefit to those children’s lives.

[Lord Goldsmith (Lab)]

My Lords, it is a privilege to follow the statements that have been made by so many of your Lordships universally condemning these regulations and identifying the specifics of why they are wrong in principle and wrong in fact.

I have not been someone who has objected to any legal aid cut. I have been concerned about some but, as a member of a Government who themselves had to look at legal aid issues, that was not the concern. However, what particularly concerns me about these regulations is the point that the noble Lord, Lord Pannick, made early in his contribution when he referred to the reasons given by the Secretary of State, the Lord Chancellor, for making this change—said to be ideological.

While there may be that ideology so far as the Lord Chancellor is concerned, noble and learned Lords have already made it plain why it is legally wrong: because prisoners have rights. Therefore, if the justification is that, ideologically, they should not have rights, he is saying that they should be in the same position as the people in the black holes of Guantanamo.

I am still shocked by the piece that the Lord Chancellor wrote in the Daily Mail on 11 September 2013, in which he described judicial review, not once but twice, as,

“a promotional tool for countless Left-wing campaigners”.

That is completely untrue, of course. I do not think that the Daily Mail would be regarded as a left-wing campaigner, yet it used judicial review to challenge the Leveson inquiry. Much as I admire it, I do not think that the Countryside Alliance, when it brought a judicial review against hunting, would have regarded itself as a left-wing campaigner.

It is deeply worrying that that is the ideology that underlies these changes. It would be deeply worrying if it came from anybody, but coming from a Lord Chancellor—a Secretary of State for Justice—it is a matter of the gravest regret, which is why I am very happy to support the noble Lord, Lord Pannick. It is wrong for these reasons. It is wrong because legal aid is about justice, not about ideology. It should be about ensuring that people can vindicate their rights where properly those rights deserve to be vindicated. Therefore, the Lord Chancellor—the Secretary of State—is ideologically unsound and also legally wrong.

This measure is, I regret to say, shabby, and a political and populist move which does no credit at all to a Government. Equally, it does no good, as noble and learned Lords and noble Lords have pointed out, in terms of cutting the budget. I very much hope that the noble Lord—and I, for one, welcome him to his place on the ministerial Bench—will do his best to make sure that that point is driven home within the Ministry of Justice and that the Secretary of State recognises eventually that this sort of move, which he regards as ideological, is in fact utterly to be regretted.

[Baroness Stern (CB)]

My Lords, my memory of the gradual application of the rule of law in prisons also goes back a long way—as far back as that of my repentant noble and learned friend, whom I have the great honour to be sitting next to and of whom my opinion has warmed considerably as the years have gone by.

I recollect the days when prisoners were found guilty of disciplinary offences and sentenced to lose many days of remission without being heard or allowed to defend themselves. I remember a riot at Wormwood Scrubs prison in which 54 prisoners and 11 prison officers were injured. It was hushed up. The full facts emerged after two and a half years and no one was ever held to account. I am sure that there would be no support in 2014 for the rule of law not being maintained in prisons. The arrival of lawfulness improved immeasurably the working conditions of staff, the treatment of prisoners and the safety of the environment in which they both lived. My noble and learned friend Lord Woolf was right to say in his report on the Strangeways riot in 1991 that,

“the system of justice which has put a person in prison cannot end at the prison doors”.

Therefore, within this context, since this is a Motion of Regret, I regret very much that the framework of lawfulness in which prisons operate is to be reduced. I understand the argument about cost, but these measures will certainly save no money at all, and they will shrink one of the elements that keep prisons fairly safe and fairly manageable—that is, the provision of access to a remedy when a decision seems arbitrary and unjust.

Perhaps I may mention one specific situation so that it may be on the record. I refer to prisoners who are held in extreme conditions, such as in the case quoted by the Chief Inspector of Prisons when he gave evidence to the Joint Committee on Human Rights. It concerned a woman with severe mental health problems in Bronzefield prison who was held for five years in conditions that amounted, in his view, to cruel, inhuman and degrading treatment. In future, such a woman seems very unlikely to be able to get legal aid to challenge her conditions and her placement. Women who have their babies taken away have already been mentioned, and I endorse the comments of the noble Baroness, Lady Kennedy.

I end by endorsing the remarks of the noble Lord, Lord Carlile, about the excellent work done by the Howard League and the Prisoners’ Advice Service. Neither of those specialist legal aid prison law firms will be able to continue under these arrangements, and that, too, is a matter for profound regret.

Legal Aid, Sentencing and Punishment of Offenders Act 2012: Part 1

Lord Goldsmith Excerpts

Monday 8th July 2013 Lords Chamber

[Lord McNally]

My Lords, I think we have had these figures before, but since 2010 the Government have provided around £160 million to support the not-for-profit sector, £107 million for the transition fund administered by the Cabinet Office and £20 million via the advice services fund 2011. In 2010-11, the income of the national citizens advice organisation was £62.3 million, with one of its largest grants being £18.9 million from the Department for Business, Innovation and Skills. However, Citizens Advice is also getting contracts under the new Legal Aid Agency civil contracts; 35 such contracts were granted to citizens advice bureaux.

[Lord Goldsmith]

My Lords, is the Minister able to help us on this despite the fact that the post-legislative scrutiny has not taken place? In addition to the places that my noble friend Lord Bach referred to, the Fulham Legal Advice Centre closed last month, I understand as a result of losing the money which used to come from those areas of work that have been taken out of scope under LASPO. Half the caseworkers in the Surrey Law Centre, which I believe serves the Lord Chancellor’s own constituency, are being made redundant through lack of funds. I declare an interest as chairman of the Access to Justice Foundation and president of the Bar Pro Bono Unit, both of which are involved in providing support to the not-for-profit sector in giving free legal advice. Can the Minister also confirm that these problems are happening against a background of increasing demand? There has been a 100% increase in inquiries to the LawWorks inquiry line and a 26.7% increase in inquiries to the Bar Pro Bono Unit. Will the Minister say what more the Government will do, rather than simply leaving it for three to five years to do a review?

[Lord McNally]

On the contrary, I thought that I had made it clear in my Answer that we are not leaving it for three to five years. The intention is to monitor and review the impact of LASPO on all the affected groups outlined in the equality impact assessment. The Legal Aid Agency, Her Majesty’s Courts and Tribunals Service and providers will complement the use of administrative data with bespoke research exercises where appropriate. We have worked with the Legal Services Board and the Law Society to carry out a survey of providers of legal advice that will provide a baseline against which changes might be measured in the future. Ad hoc reviews are also conducted where a provider stops undertaking legal aid work.

I am not pretending that law centres have not been hit by this change. However, as I indicated in the previous answer, we have given a lot of money to the transition fund to help law centres and other not-for-profit sectors to reorganise so that they remain effective.

British Bill of Rights

Lord Goldsmith Excerpts

Thursday 20th June 2013 Lords Chamber

[Lord Goldsmith]

My Lords, I need to start with an apology to the House and to the noble Lord, Lord Lester of Herne Hill, for arriving after the start of the debate. I can pray in aid a little bit of confusion about the starting time of the debate, and I know very well the views of the noble Lord, Lord Lester, from over the years so I can predict some of the things that he would have said.

I therefore hope that the House will permit me to make a few brief observations on this very important topic. In doing so, I declare an interest as a practising lawyer. I have been involved in human rights work, in the sense that a lot of the work that I did when I was Attorney-General involved vetting and approving—and occasionally not approving—legislation or executive action on the grounds of compliance or non-compliance with our Community obligations and arguing cases on behalf of the Government either in this country’s courts or, from time to time, overseas, including in Strasbourg. I have some experience of how the European convention and the Human Rights Act work. I was also the Prime Minister’s personal representative in negotiating the European Charter of Fundamental Rights, which was set up following the Cologne and Nice summits to try to draw up a charter for the institutions of the European Union rather than its member states. I am therefore familiar with the debates.

The principal point that I want briefly to make is that I am despondent and unhappy about the turn which has been taken in the debate on human rights, and I am therefore unhappy about the commission’s report. I am concerned about a proposal that would not just put in place additional protection in a British Bill of Rights but, at least in the view of some members of the commission and some members of the Government, replace the European Convention on Human Rights with something else. There are three reasons why that would be a retrograde step.

The first reason is the universality of human rights protection that the European convention gives rise to. It gives rise to universality across the European countries which subscribe to the Council of Europe and the European convention. This does not mean that it is interpreted or applied in exactly the same way in every country, nor should it be. There are different social conditions and the principles—the so-called margin of appreciation—provide an opportunity for different countries to be allowed a chance to apply the rules and rights in the European convention in a way which suits the social and economic conditions of that country. Otherwise, it means that all the countries which subscribe share the same fundamental values and are subject to the same fundamental restrictions on how they deal with people within their territories.

I am really worried at the prospect of the message it would send if the United Kingdom were to leave the European convention. The noble Lord, Lord Faulks, talked about the UK becoming a pariah state, but that is not quite what I have in mind. He also rightly described the very proud and important contribution that this country has made to human rights protection in many parts of the world. However, once it became clear that the view of the United Kingdom was that it could go its own way and no longer needed the European Court of Human Rights or to follow the European convention, I would worry about the example that we were setting. There are countries in eastern Europe—I will not name them but noble Lords can identify them very easily—that already find it difficult to comply with their obligations, and if they felt that they had the liberty to produce their own Bill of Rights and their own protections they would move in a very different way.

Secondly, the convention provides for a permanence of protections. It is not an immutable convention: it is open to member states to change. It is more often changed by the addition of rights through the agreement of new protocols but it is not impossible for member states to agree changes. However, it differs very much from parliamentary legislation in that it is not open to a single state to say, “We do not like the decision that the court has just made therefore we are now going to amend the right that is at issue”. I would be very worried if the protection of human rights in this country depended only on a statute of this Parliament, for which I have enormous respect. It would still mean that it would be capable of amendment, variation, revocation or removal if there were a parliamentary majority for that to take place. I am concerned that there is a risk that something as important as the protection of our fellow citizens could be subject to short-term political issues or the pressures of newspapers.

My third concern is the detail: the devil is always in the detail. I see from the commission’s conclusions that:

“The majority are agreed that such a Bill should have at its core the rights currently in the European Convention on Human Rights … That does not necessarily mean, however, that they would have to be written in identical language”.

I had exactly that issue when negotiating the charter. The question then was whether we should write the relevant rights and obligations in the same terms used in the European convention or use different language. As soon as you use different language, any lawyer will find a difference in the meaning intended. I do not know how it is to be done because we do not know what the detail of a new Bill would be, but there is a real risk that the rights written—allegedly not in non-identical language but protecting the same rights—would not actually be protected. When I was in office and debated the European convention with my opposite numbers I used simply to ask which of the rights in the convention they did not agree with: the right to a fair trial, the freedom of speech, freedom of association, the prohibition of torture, the prohibition of inhuman and degrading treatment. When one analyses that—given that the rights concerned are basic rights, rightly put into place following the horrors of the Holocaust—it is difficult to rewrite this in a way which does not risk removing those rights in some respect. If that is not the intention I do not see the point of rewriting it, and that worries me a great deal.

My final point is that I share the views of those who have said that it would be very good if more could be done to try to explain how the Human Rights Act and the European convention work. There are myths and misconceptions; we came across a lot of them in the time that I was in office. For example, there was the allegation that an escaped burglar was provided with food when he escaped because of his human rights, when it was nothing at all to do with that. In fact, it was not food but drink; it is a jolly good way to get somebody down from a roof, to ply him with a lot of drink—non-alcoholic drink, of course, although maybe with alcoholic drink it would have been even faster. Lots of stories were promoted, and came across in the newspapers about events said to have taken place, but they were simply not the case. There is a huge amount of misconception.

I worry about the things that the present Government say that do not illustrate a complete understanding of the Act. This is not the first time that I have said this, but I was troubled by what the right honourable Mr Grayling, the Lord Chancellor, said in relation to the prisoner votes debate—that it was open to this Parliament to ignore a decision made in a case to which the United Kingdom was a party. Under the Human Rights Act it is perfectly true that, when it is a decision in relation to another country, our courts are required only to have regard to the decisions. However, none of that takes away from the obligation that this country has, having entered into an international obligation, to follow the decisions of the court when they are made against us.

Others will speak with more authority about the work of the commission, but I am grateful to noble Lords for listening to me.