Estates of Deceased Persons (Forfeiture Rule and Law of Succession) Bill

Lord Howe of Aberavon Excerpts

Wednesday 15th June 2011 Lords Chamber

There is no doubt whatever that, if Parliament were to decide in future to repeal or modify the 1972 Act or create exceptions to it, and were to do so unambiguously in primary legislation, then the courts of this country would give effect to that political decision. I share the doubt of the noble Lord, Lord Kerr, that Clause 18 is needed at all. I am concerned that to enact Clause 18 will wrongly suggest that in its absence there would be any room for real doubt on this subject. If we must have Clause 18, then let us not add to the confusion and obscurity. Let us be clear about this. For that reason, I support the amendment.

[Lord Howe of Aberavon]

My Lords, I rise with some hesitation for the second time on the Bill, partly because I do not have with me the actual 1972 Act—nobody else has quoted it. That quite clearly provides for the incorporation, as the noble Lord has just said. I am being offered a copy of it. It speaks for itself as follows, under the title, “General implementation of Treaties”:

“All such rights, powers, liabilities, obligations and restrictions from time to time treated or arising by or under the Treaties, and all such remedies and procedures from time to time provided for by or under the Treaties, as in accordance with the Treaties are without further enactment to be given legal effect or used in the United Kingdom shall be recognised and available in law, and be enforced, allowed and followed accordingly; and the expression ‘enforceable Community right’ and similar expressions shall be read as referring to one to which this subsection applies”.

Nothing could be more comprehensive or comprehensible than that. I emphasise the three words, “without further enactment”.

I repudiate any tributes that may have been paid to me. I did not draft that. It would have been wholly beyond my capability then and indeed now to draft a provision of such clarity and formidable length as that. If we must pay tribute to the author, it was the senior parliamentary counsel, Sir John Fiennes. It was a truly remarkable Act. It is absolutely clear and it is one of the foundations of the treaty to which we belong. I cannot really say anything more than that. It suffices to rest content with the re-enactment, as it were, of the recognition of another time for something that has been the foundation of our membership of the European Community from the outset.

If I may be less than frivolous and make a sad observation, a memorial service takes place in Gray’s Inn at 5 pm this evening and I hope that the House will forgive me if I do not remain until the end of the debate on this proposed new clause if it lasts that long.

[Lord Richard]

I have two things to say very briefly about this. On Second Reading, I think I made it clear that I did not approve of Clause 18. I did not think that it was needed, as it seemed to me purely declaratory. It did not add anything or take anything away from the law; it was a statement of what the law was—and it is perfectly clear that we all knew what the law was, and we all know what it is. So I was a little surprised to see the terms of the amendment proposed by the noble and learned Lord, Lord Mackay of Clashfern. If we have to have a declaratory clause of this sort on this issue, I would vastly prefer his drafting than the original government drafting, but I accept and would vote for the amendment with some considerable reluctance. In my limited experience of declaratory clauses, which is not as great as that of the noble and learned Lord, on the whole clauses that are meant to clarify the law very frequently have precisely the opposite effect. I am doubtful about it and do not like it, but in the end I will support it.

Fixed-term Parliaments Bill

Lord Howe of Aberavon Excerpts

Tuesday 29th March 2011 Lords Chamber

[Lord Howe of Aberavon]

My Lords, I have listened to the discussions today—and indeed on this subject—with anything but joy in my heart. I have been struck by the contribution that this Bill is making to the pile of legislation that this coalition Government have already brought to Parliament and which we are still ploughing through. The Attlee Government at one time had the record for the number of Bill pages in legislation presented in one year—2,288. I am sorry to say that the Thatcher Government some years later outstripped that with 2,581. My fear is that the present Administration may well be running well ahead of that. It is not only for that reason that I am very unenthusiastic about the Bill—all the more so when I see the problems that we are now getting deeper and deeper into.

I shall comment on those quickly. I respect the extent to which the noble Lord, Lord Howarth, has taken part in well considered detail in all the discussions. However, his last point does not take account of the fact that the proposed new clause moved by my noble friend Lord Cormack specifies in clear terms that the provisions are beyond doubt to be recognised as no-confidence motions. Moreover, they are so cast that they do not impose any real burden of judgment on the Speaker at all. He is certifying something that is as plain as a pikestaff as already set out. Even so, I commend the provisions in the proposed new clause as being better than those in the Bill, but I wonder whether we need to be going through any of this at all. The attempt to define in detail what it has to fulfil reminds me of the task of definition and how difficult that is. It is now 15 years since I chaired the steering committee of the Tax Law Rewrite Project. We were engaged in the task of rewriting, reclassifying and redefining almost everything on the existing tax statute book. I know from that experience how harsh it is.

We really need not put ourselves into this morass. The impact of the no-confidence motion has always been recognised. I cannot think of a past example in which somebody has repudiated the attempt to dissolve a Parliament because of the passage of a no-confidence resolution. You can sometimes get into great mistakes by trying to define too much in too much detail too often. I have no enthusiasm for the fixed-term Parliament proposition, but, if we have it, I do not see the need for this kind of detailed definition. Let me go one stage further back. We have survived many decades and a whole series of varying circumstances, but without any equivalent of the fixed-term Parliament provision. On different occasions, the Prime Minister, the nation and Parliament have had to make up their own minds as to whether the circumstances being exercised or exploited have been properly reacted to. This has worked.

--- Later in debate ---

[Lord Wallace of Tankerness]

My Lords, it is obvious that we have had an important debate following a number of other debates on amendments where we have looked at the structure of Clause 2. In this case, the intention of the amendment is to seek more certainty about what will constitute a no-confidence vote. It is clear from the amendment—indeed it was said by the mover, my noble friend Lord Cormack, and the noble Lord, Lord Armstrong of Ilminster—that an early election would inevitably follow specific types of no-confidence votes being carried in the House of Commons.

It is interesting that the concern of all contributors has been about how we ensure that we are certain about what a no-confidence motion is. My noble friend Lord Maclennan of Rogart made the important point that even the amendment tabled by my noble friend Lord Cormack does not necessarily exclude other possible amendments. That indicates the difficulties. I have tried to be open about the objective, which is to try to devise a means by which there can be a trigger mechanism for an early election but with a degree of certainty and without opening the door for abuse.

If I can helpfully work on that basis, I respect the views of those who say that they are totally against fixed-term Parliaments, but this Bill is designed to bring in a fixed-term Parliament; a number of noble Lords set out specific arguments based on our having a fixed-term Parliament. I think there is some agreement that if we have fixed-term Parliaments, there must be a mechanism to trigger an early election. I have not detected any desire in your Lordships' House for a very fixed, rigid system.

The noble Lord, Lord Cormack, in introducing his amendment, rightly indicated that if we are to have what he described as the escape clause, it must be clear, simple, understandable and not capable of misrepresentation. The noble and learned Lord, Lord Falconer of Thoroton, asked what was the thinking behind the Government’s position as we set it out. Why had we not specified words? My noble friend Lord Norton encouraged us to have a statutory definition of a no confidence motion. The reason why—

[Lord Howe of Aberavon]

With great respect to my noble and learned friend, he said we are trying to set up a situation in which, with fixed-term Parliaments, we can trigger an early election. That seems to be something that we are all groping for. We already have a fixed-term structure in the sense that there is a maximum term with the existing pattern of being able to trigger it for different reasons. I emphasise the significance of what he said, I think not per incuriam. We are working in a fixed-term situation but finding a way in which we can trigger an early election. If that is what he is after, we are not far away from it as we are.

[Lord Wallace of Tankerness]

That is indeed what I said because there is a difference between a fixed term, as set out principally in Clause 1, and recognising that you could have a situation, as they do in Norway, where the term is fixed and nothing can allow an early election, even if the Government were to lose the confidence of their Parliament. That is not what anyone has argued for in our deliberations. There is a distinction between a fixed term and a maximum term during which, under the present system, the Prime Minister of the day can opt to have an election at a time of his choosing for partisan advantage. We do not disguise the fact that that is what we are seeking to move away from.

Fixed-term Parliaments Bill

Lord Howe of Aberavon Excerpts

Tuesday 1st March 2011 Lords Chamber

[Lord Howe of Aberavon]

My Lords, this is the first time for many years that I rise to my feet recalling that I am formally to be described as “noble and learned”. I find myself following two gentlemen who are equally qualified for the second epithet but infinitely more competent in demonstrating their ability to cherish it. I find that the issues so ably presented by my noble and learned friend Lord Wallace of Tankerness, and so ably destroyed or eroded by the noble and learned Lord, Lord Falconer, make me even more worried about where we are going next.

I am now so antique myself that I have become more sceptical about fundamental changes to our constitutional structure. I have been taught that lesson by changes already made in the past 10 or 12 years. For example, the noble and learned Lord, Lord Falconer of Thoroton, was the last man to hold the office of Lord Chancellor in anything like the significant way in which it was long held and should have gone on being held. It is not simply a piece of tearful legal reminiscence that makes me say that. The fact that my former Parliamentary Private Secretary, Kenneth Clarke, is now Lord Chancellor but also Secretary of State, which office no longer assimilates, emulates or coincides with the office of Lord Chancellor as one used to know it, disturbs me. We are now living in a period in which, increasingly often, politicians and judges denounce each other. We find ourselves facing the terrible burden of “non-elected judges”, as though they have no qualifications because they are not elected. There is an upsurge of affection for democratic structures.

The fact that such conflict is developing is a consequence of the disappearance of the office of Lord Chancellor—an office that, if I remember correctly, was criticised by a select committee of the Council of Europe many years ago. It said that we had such an odd officer defying the laws of separation of powers because Britain had not experienced the reforms implemented throughout the rest of the continent by Napoleon Bonaparte. What sort of judgment is that? It is not just a fashionable thing to bewail dispensing with the Lord Chancellor or—this may seem more controversial—the transplantation of the Lords of Appeal in Ordinary from these premises to the supremely superb, manifestly impressive and expensive buildings on the other side of Parliament Square. I am more worried than pleased by that change, which may have had a theoretical academic justification but has not been beneficial. I point to a feature that makes that point. We now have the senior judge—the presiding judge—in the Supreme Court having to protest personally and complain about the inadequacy of the financial resources available to the Supreme Court. For the first time the Supreme Court has to go cap in hand to the Treasury. Chancellors—I say this as a former Chancellor —are benign men, but it is very unattractive that the Supreme Court should have to go cap in hand to the Treasury. In the old days one could say that the Supreme Court existed under the benevolent blessing of Parliament through the Judicial Committee of this House. This is a serious change. Those two factors make me apprehensive, and certainly not persuaded by the case being made for this Bill as it stands.

Both the preceding noble and learned Lords have presented cases with skill, expertise and clarity, as one would expect. However, I confess that I felt rather like the person who some years ago attended a conference on local government reform in that I was confused when I arrived in the premises and I am more confused now that we have heard these two competing speeches. I recall—I do not think that he is in the Chamber at present—the Joint Committee presided over by the noble Lord, Lord Cunningham, which discussed the wisdom or otherwise of respecting conventions rather than formality. Conventions have shaped the framework within which we have lived for many years. People understand whether the Prime Minister does or does not have the power to do something and whether or not he has the wisdom to do the right thing. To be now transplanted from that situation and confronted with a bundle of difficult to understand subsections in the Bill, giving scope for analyses of the kind the noble and learned Lord, Lord Falconer, has already presented, does not give me greater confidence in the proposed future system than in the continuation of our present system. I say that with nostalgic respect for the way in which the system treated me in my university days long before I sought to be a candidate for Parliament. We had the 1950-51 sequence of elections. We saw the erosion and disappearance of the Attlee Government and the restoration of a Churchill Government. I stood twice as a candidate in the constituency of Aberavon. Lord Morris of Aberavon and Lord Howe of Aberavon would make a very good partnership. I should not say that, should I? I was not being serious when I fought against the noble and learned Lord, Lord Morris, because he was bound to win.

In 1964, I was delighted to be elected to the constituency of Bebington. I inherited a majority of 9,861 and saw it reduced to 2,200, which was a bit of a let-down. The Government lost office, but only by a small margin did the Wilson Government arrive in office. In 1966, I had to go through the struggle all again to find that the Labour Party had a majority of 2,200. The point I am making is that in each of those cases—1950-51 and 1964-66—by a gradual process of application of the conventions that then existed and still do, the nation made a change, first rather nervously and then more decisively, and a change of government was achieved as a result of the votes cast by the electorate in the light of the decisions taken in the Houses of Parliament. However, I am wary about the wisdom of taking away the structure that we have come to know and which has served us not too badly.

There is one other piece that I would like to say, which causes me some concern. That is the huge volume of legislation we are having to grapple with since the arrival in office of the coalition. Of course, for all sorts of reasons, I have the most enormous respect for the coalition—it has a Conservative Prime Minister of great distinction, and one is bound to be cheerful about that, not to mention distinguished Front Bench spokesmen such as the noble and learned Lord who has presented this case. However, it is a coalition that is running this torrent of legislative change through this House and through Parliament. I am not going to make a speech about the Public Bodies Bill now save to mention it, but when the Minister was first in charge of it I said that it struck me as something like a self-inflicted tsunami of constitutional destruction and it still has that flavour. It was an enormous number of different identities being bundled together in a semi-destructive fashion.

I plead guilty to the fact actually—I only rediscovered this the other day—that when I first arrived as Chancellor of the Exchequer in 1979 I also called for a bonfire of the quangos and some casualties there ought not to have taken place. That is by the way. I think the coalition—more than the Government of which I was a member under the leadership of the noble Baroness, Lady Thatcher—is constructed rather like the way I put wood on the fire before I light it. Bits of little wood lean on other little bits of little wood and big logs can go on them and gradually it is all assembled in such a way that I can apply the firelighter to it. The coalition had to do all that. One can imagine the negotiations in which the two party leaders said, “If you do this, then I can do that”, and then, “Perhaps we can both do this together”. So we have this assorted menu of constitutional change touching almost every institution in sight. That is what worries me and why I speak with such disloyalty to the Government, which I of course support. I think that it is important to draw attention to these anxieties.

I have one last thought. One of the topics on which the noble Baroness, Lady Thatcher, and I agreed from the outset in the course of our long-standing relationship was one when I made a speech—I think to the Society of Conservative Lawyers—saying that above all,

“we must make fewer laws and make the laws fewer”.

In a short time the noble Baroness echoed that triumphantly. We were both absolutely agreed upon it. As a matter of fact, we did not do too well in the end. It was quite remarkable. The Labour Government between 1975 and 1978 enacted an average of 1,177 pages of primary legislation a year. The Conservative Government that followed between 1980 and 1989 enacted an average of 1,788 pages. We managed 2,170 pages in 1988 and no less than 2,581 in 1989. It was at that point that we surpassed the record hitherto held by the Attlee Government of 2,288 pages. That shows how difficult it is to achieve. Lo and behold the present Administration, this marvellous coalition, have already enacted 687 pages of statute and 2,084 pages of Bills are on their way through the system. One can give the prize to them, with 2,771 pages of legislation.

That is a firm foundation on which to base my anxiety. I am not persuaded that we should be making this change. I am not persuaded that it is necessary to make the change. I am not persuaded by the experience of Canada. I respect the Canadians who have been able to function on the same basis as ourselves and without the firmness of four-year fixed terms of the kind south of the 49th parallel. I would rather we stayed as we always have been and rather we stayed as the Canadians had been until quite recently. I make those points as I am anxious but do not wish to tear down this marvellous coalition, on whose success we all depend.