Brexit

Lord Judge Excerpts

Saturday 19th October 2019 Lords Chamber

[Lord Judge (CB)]

My Lords, this is supposed to be a calm occasion. Can anyone suggest that Brexit has been underdebated in either House? We know what the issues are, and, more importantly, everyone in the country knows what the issues are. We have all heard—but, I regret to say, not all of us have listened to—the arguments in support of Brexit. We have all heard, but not all of us have listened to, the arguments in support of remaining in the EU. We have all heard, but not all of us have listened to, the arguments in support of and against Mrs May’s deal.

I am something of a legal nerd. I forced myself to read that entire document, all 500 pages-plus. I did not understand half of them. I knew that it was not a very favourable deal to the UK, but I also knew that—we tend to overlook this—the EU has a negotiating position to protect the rights and interests of, and advance the welfare of, its 27 nations. “Welfare” is perhaps too modest a word. We must remember that if we go back to the negotiating table, that is what it will do.

I am not going to read this new edition. I am sorry, but 600 pages of it I just cannot face. There is a simple reason why I am not going to be a nerd about this: I no longer think that the terms of the deal are the crucial issue. Notwithstanding all the arguments—indeed, perhaps because of listening to all the arguments—I do not have an absolutist, categoric, assertive, strident view. My personal concern is directed elsewhere. The public understand the arguments. If we have a referendum—which I do not support—the public would be able to vote tomorrow, whatever the terms. Whether they voted for or against Brexit, the majority of the public cannot understand why we the politicians, the parliamentarians, have not resolved this issue. The public voted in a referendum, and in a general election in which both main parties went to the country promising to honour the result, and they are still waiting. I respect and understand the genuine passion and commitment of those on both sides who adhere to the principle they espouse. That respect, however, does not extend to those who contrive a synthetic passion because they sense the proximity of possible political advantage.

Whether it is politics or principle, the parliamentary processes of the last 1,200 days are shattering something even more important than Brexit. It seems to me—it is the only issue I have sought to address when I have spoken in the Brexit debates—that we are so sure that we are right, so preoccupied with our own arguments, that we in both Houses have done, are doing and may continue to inflict on the general public’s confidence in their own political and constitutional institutions, the most profound damage.

The lesson of history is chilling. When the public lose confidence in their own institutions—and they are the public’s, not ours—they can be beguiled by an individual or a party, whether of the left or the right, that appears to offer them a route out of what they perceive to be political chaos and uncertainty. That is aggravated if their perception is that their current politicians and their current political arrangements have caused or contributed to it. Too many democracies in Europe have had cause to learn that bitter lesson. We must be careful that we are not opening a path to a public opinion that will extol authoritarianism.

Every day that goes by and every additional delay adds to public uncertainty, aggravates public anger and disillusionment with our political process and makes the task of restoring that very precious confidence more difficult. Already, it will take years. On Thursday evening, catching my train at Euston, I overheard a young woman, discussing Brexit with her companion, say, “Thank God it’s over”. Well, it is not over yet, but it really should be.

European Union (Withdrawal) (No. 5) Bill

Lord Judge Excerpts

Committee: 1st sitting (Hansard): House of Lords
Monday 8th April 2019 Lords Chamber

[Lord Cormack (Con)]

My Lords, I think we should remember that there is no precedent, no parallel, to the situation in which we have found ourselves in recent weeks. As we said at Second Reading last Thursday night, a group of very courageous Members from both sides of the House, and from minority parties, came together to fill a vacuum. After that, the Prime Minister made her welcome overture to other parties, something that should have been done after the general election when we lost our majority.

That changed the situation. Nevertheless, I believe that those who promoted this Bill were entirely justified in so doing. We have had this welcome development from the Prime Minister, so it is entirely sensible that the amendments moved by the noble and learned Lord, Lord Goldsmith, and the noble Lord, Lord Pannick, should be accepted by this House. They give the Prime Minister, in this, the ultimate hour—because that is what we are talking about—the freedom to be able to negotiate on Wednesday. It would be manifestly absurd if she did not have that freedom.

We should accept these amendments. I think they improve the Bill. I very much hope that those in another place accept them in the spirit in which they have been moved, and then, perhaps, we can all move on.

[Lord Judge (CB)]

My Lords, I had not intended to speak. I do not think that this is a good Bill. There have been much better Bills, and the process that we have been through has not been the House at its best, because events have forced the situation on us. Therefore, I apologise to the House. I did not put my name down to speak at Second Reading—I had not intended to speak at all. I support this amendment, because I think it will make a bad Bill rather better.

May I diverge, however? We are setting a precedent. There is no point in pretending that we have not set a precedent by what has happened. If I may, I offer this comfort: sometimes precedents do not have to be followed. This allows a precedent. I suggest to whichever side of the House is in power for the next 20, 30, 40 or 50 years that we do not allow it to be followed again. At least we should communicate our view that this, whether precedent or not—and it was—is a one-off and goes no further.

The point of Amendment 7 is very simple: we want to make the Bill a little better than it is by removing the constraints that are otherwise imposed on the Prime Minister. That, I respectfully suggest to the House, is desirable. As I do not intend to speak or have my speaking taken as support for this—

[Lord Hamilton of Epsom]

Does the noble and learned Lord accept that, with an unwritten constitution, it is impossible to guarantee that a precedent will be a one-off? It will be used by others when it is convenient for them to do so.

[Lord Judge]

Of course it will be used by others. Lawyers use bad precedents constantly, but it does not mean that it has to be followed.

I did not intend to speak, for the reason I have given. This amendment will improve the Bill. That is the point of it. Beyond that, I do not wish to say any more, because it may indicate somehow that I am backing off from my concern about the Bill. So in lawyerly fashion I simply say that you have all heard the noble Lord, Lord Pannick. I agree with him. I have nothing to add.

[Viscount Eccles]

The noble and learned Lord tells us that it improves the Bill. Does it not change the Bill so materially that it is not the same Bill after all?

[Lord Judge]

No, it does not. We have to face the context, which is that the Commons has passed the Bill. So we are not having the first go at it; we are having a go at it after the Commons has resolved it.

[Lord Faulks]

The noble Lord, Lord Pannick, and the noble and learned Lord, Lord Judge, have helpfully identified a problem with the Bill, in that a counterproposal by the EU could fall between the cracks and result in an accidental no deal, thus frustrating the will of Parliament, in so far as that will is ascertainable.

In the event of a counterproposal, which seems likely, the amendment suggests that the Prime Minister has the power to seek or agree an extension to a date not earlier than 22 May. At col. 337, the noble Lord, Lord Pannick, suggested that approval would still have to be sought for that new date.

I wholly understand the thinking behind the amendment, but the apparent need for it underlines the strange constitutional waters in which we are now swimming. My understanding of the Gina Miller case is that the Government argued that Article 50 could be triggered without parliamentary involvement, whereas the opposing argument, advanced by the noble Lord among others, was that Parliament had legislated in such a way that the royal prerogative was enough on its own and that Parliament need not be involved. By a majority this argument prevailed, although there were three dissenting speeches.

The prerogative, however, allows Ministers, and in this case the Prime Minister, to make or unmake treaties unless Parliament has legislated to restrict that power. It rarely does, hence the paucity of useful precedents in the Gina Miller case. It seems to me that the Prime Minister would be allowed to agree a counterproposal as a matter of law. Whether that would be politically sound is a different matter.

The response of the noble Lord, Lord Pannick, is that it is or might be uncertain, but it seems to me that this amendment in fact fetters the royal prerogative. We have a dualist system of law in this country, which has worked well, and I wonder if it is wise to undermine the royal prerogative in this way. To make a constitutional change of this sort needs prolonged and serious thought. A Private Member’s Bill that went through all its stages in the House of Commons in four hours, that was not given pre-legislative scrutiny and that, for good reasons, is hurrying through this House, is surely not the context in which to make significant constitutional changes.

European Union (Withdrawal) Bill

Lord Judge Excerpts

Report: 4th sitting (Hansard): House of Lords
Monday 30th April 2018 Lords Chamber

Moved by

[Lord Judge]

52A: Clause 9, page 7, line 10, leave out subsection (2)

[Lord Judge (CB)]

My Lords, I bring this amendment with support from all sides and wonder whether your Lordships would be kind enough to listen to me while I read to you the effect of Clause 9(1) and (2) taken together:

“A Minister of the Crown may by regulations … make any provision that could be made by an Act of Parliament (including modifying this Act)”.


By contrast with primary legislation, which has been through all the legislative processes in both Houses, with all the opportunity for discussion, debate, rethinking, amendment and, above all, scrutiny that are inherent in our processes to create primary legislation, this clause vests power in a single individual, a Minister, one man or woman, to promulgate new laws by regulation drafted in their own departments. What is worse, that single individual is by regulation empowered to override, repeal or amend primary legislation which has been enacted after both Houses have been through the processes which I have just described.

I have said before, and venture to repeat myself, that in a democracy that is a remarkable lawmaking power given to a single individual. Vesting such power in a single individual is a very dangerous constitutional habit. Clauses such as this are inserted into primary legislation with what I at best can say is casual indifference. It would be interesting to be able to know, and we never shall, when a Minister signing off proposed primary legislation questioned the inclusion of such a clause. Was it last year, 10 years ago or maybe 20? Even more, would it not be wonderful if a Minister not only questioned it but insisted on its removal? I cannot imagine anybody here thinks it happens very often. Such clauses go into Bills like confetti strewn about at a wedding.

What about us, Parliament? We have not been as assiduous as we should have been. As I have said before—I am sorry, it is a mantra that you will hear me repeating—the last time the Commons rejected a statutory instrument was in 1979, just about 40 years before exit day. There was a much more recent example in this House, as all noble Lords will remember, but the proper exercise of those powers by this House was treated as if it had created a constitutional crisis. It had not, of course, but many thought that it had. On the basis that the scrutiny process of regulations in the Commons has become obsolete, this power to make new law and override existing law by ministerial regulation is effectively synonymous with ministerial proclamation running the country.

The very same House of Commons which is said to have given that dangerous Henry VIII these powers would regard our efforts to control them, our distortion of our legislative processes, as at the very best pusillanimous. It is a remarkable feature of Clause 9(2) that it actually repeats words in that notorious Act of Proclamations 1539. The Act provides that royal proclamations were to be obeyed,

“as though they were made by Act of Parliament”.

That is why I read out what our current provisions are proposing to put in. I think that it is a shameful echo. For lawmaking purposes, it means that one man’s or woman’s word is equivalent to the entire parliamentary process. In 1539, that very same Commons—I regret that it was the Commons, not the Lords—did something that it is never given credit for. Remember that it was dealing with Henry VIII and Thomas Cromwell. But the Commons expressly qualified that very wide grant of powers by making the provision that the words should not be understood to mean that anyone,

“of what estate, degree or condition soever”,

should have,

“their inheritances, lawful possessions, offices, liberties, privileges, franchises, goods … taken from them … nor that by any proclamation to be made by virtue of this act, any acts, common laws (standing at this present time in strength and force) nor yet any lawful or laudable customs of this realm … shall be infringed, broken or subverted, and specially all those acts standing this hour in force which have been made in the King’s Highness’ time”.

Occasionally one needs to reflect on the courage of the Commons to stand up to Henry VIII all those years ago. History has been unkind to it. The Speaker ended up in the Tower. It was on an almost certainly trumped-up charge of dishonesty and fraud, but that was where he ended up. Those noble Lords who think that Thomas Cromwell lost his head because Henry VIII did not find Anne of Cleves bonny and buxom in bed should think again. The reason he lost his head was that for the first time in the whole time when Henry VIII relied on him he did not get from Parliament what the King wanted. So let us remember the express qualifications in that notorious Act of Proclamations. They are magical words and we today have forgotten about them—we do not include them.

These particular Henry VIII clauses are about as pointless as they can ever have been anyway. They do not come into force before the “meaningful vote”—no further words from me on that—and they may not be exercised anyway after exit day, which is less than 12 months away. What is the point of them? The opportunity for exercising these powers, if Parliament chooses to give them to the Minister, are minimal, and such opportunity as there will be will be diminished by the requirement in Amendment 83C for the Minister to explain why it is reasonable for these powers to be exercised. I trust the Minister will accept, and indeed perhaps indicate to the House, that it is perfectly sensible, if the Minister is giving good reasons for any decision, for the Minister to explain which pieces of primary legislation it is proposed to amend, repeal, revoke or tamper with. Then at least the scrutinising process can say what it is we are looking at.

I am using a ridiculous example to make my point: the Statute forbidding Bearing of Armour 1313 says that you must not come within one mile of Parliament armed. Okay, we can get rid of that—I suppose—because we have modern Acts to deal with the problem. But I make this trivial point because we need to know what it is considered that we should interfere with before it is possible for us to say that there are good reasons for doing so. I beg to move.

[The Deputy Speaker (Baroness Morris of Bolton) (Con)]

My Lords, if Amendment 52A is agreed to, I cannot call Amendment 53 for reasons of pre-emption.

--- Later in debate ---

[Baroness Goldie]

In short, yes—with this caveat. The Government regret that we are not able to be signatories to Amendment 52A, in the name of the noble and learned Lord, Lord Judge, because, as he has indicated, it seeks to remove Clause 9(2) completely, thereby removing the power to amend primary legislation. However, it is always a joy to listen to the noble and learned Lord’s eloquent and well-informed contributions.

Let me explain the Government’s position. Even with the introduction of the withdrawal agreement and implementation Bill, Clause 9 residually serves as a supplementary measure to implement the more technical elements of the withdrawal agreement that will need to be legislated for in time for exit day. These technical amendments may need to be made to primary legislation in exactly the same way as in secondary legislation, so we cannot accept limiting the power in the way sought by the noble and learned Lord. However, I say to him, as he specifically raised this point, that the new transparency procedures for such regulations would require the Minister to make clear in the supporting memorandum what legislation was being amended. I hope that reassures him.

The Government believe that whether a change is made to primary or secondary legislation does not always reflect the significance of the changes being made. Equally, the level of detail involved may be better suited to secondary legislation. I hope that noble Lords will understand the Government’s reasoning on this and will welcome the Government’s compromise through the removal of the ability to amend the Act. I repeat the categorical assurance I have given to the noble and learned Lord, Lord Goldsmith, on that point. This further demonstrates the Government’s commitment to restrict the scope of the powers sought wherever practical. I hope this amendment is enough to reassure the noble and learned Lord, Lord Judge, and that he will withdraw his amendment.

[Lord Judge]

My Lords, we have made some progress. If the use of this extraordinary power—extraordinary in the sense of the power rather than extraordinary in the sense of the number of times it is used—will be limited to dealing with technical amendments, which will be explained by highlighting the legislation under consideration, we have made some progress and I shall not test the opinion of the House today.

However, Henry VIII clauses are unacceptable save in the most special circumstances. Although I shall not divide the House today, I shall watch as each new Bill comes before us, in connection not only with Brexit, to make sure that the Minister looking at the first draft of the Bill asks why it contains a Henry VIII clause, why it is needed and what it is for so that we do not suddenly find a whole cluster of Henry VIII clauses bursting through at the seams such that we are unable to control them. We have made some progress. It is not enough for the long term, but for tonight we have done very well. I beg leave to withdraw the amendment.

Amendment 52A withdrawn.

European Union (Withdrawal) Bill

Lord Judge Excerpts

Report: 3rd sitting (Hansard): House of Lords
Wednesday 25th April 2018 Lords Chamber

Moved by

[Lord Judge]

34: Clause 7, page 6, line 17, leave out “relevant”

[Lord Judge (CB)]

My Lords, the issue that these amendments give rise to is quite an important constitutional one. This will not be a great moment after having had the excitement of a vote involving 500 or more Peers, but if we could add up to 100 it would be very successful. There are two reasons why there is no great interest in this issue, and one is that we have become habituated to the creation of criminal offences by regulation. It happened under the last Labour Government and the coalition Government, and it happens under this Government. Over the past 20 to 25 years there has been a proliferation of these clauses. Constitutionally, that is an aberration. We should not be creating criminal offences that can lead to an individual being imprisoned by regulation that, for the reasons we have discussed over the past few weeks, is controlled only by negative or affirmative resolution, which, as we have seen, is no sort of control at all.

The constitutional principle was upheld during the debates on the sanctions Bill. Those noble Lords who were here will remember a very significant vote in favour of an amendment to that Bill which would have deleted the ability of a Minister of the Crown to create criminal offences by regulation. There was cross-party support for the amendment and, as I say, the Government were defeated. The end result was that I had a series of meetings with the noble Baroness, Lady Bowles, who is not in her place. We then met with the Treasury Minister, with the Bill team and twice with parliamentary counsel to argue about how best to preserve constitutional certainty in relation to the creation of criminal offences. It was not easy. One significant point was made that certainly affected me: there will be occasions when it may be necessary—to use the word we now have—to allow for an offence to be created by regulation. A compromise was put forward and was accepted. It was put before the other place and, on this particular issue, that Bill will now proceed.

Faced with that, it seemed to me that we had to reflect again on the absolute nature of this amendment. I see that the Government have put forward proposals in government Amendments 83C and 83G which coincide with the suggestions made by the Constitution Committee, of which I am a member. I am speaking today only for myself, of course, not for the committee. The Government have recognised that there needs to be a significant increase in the element of parliamentary scrutiny and, if I may say so, proposals to encourage ministerial hesitation before proceeding by way of regulations to create criminal offences.

I really am not suggesting more than this. This is a start. It is a pullback from a process to which, as I said, we have become habituated. It is a process; it is an advance. It had not been made when the present Bill came before the House. The Bill has now come before the House, and we have discussed it. We have debated it in Committee, we have now discussed it again and ministerial amendments have been made. I welcome those, as I said at the start. I welcome the proposal that these amendments should be made. Ultimately, it is not my decision whether Amendments 83C and 83G should be supported in the House. If they were, that would provide a significant improvement to the current arrangements. There is nothing more I can usefully say. I beg to move.

[Baroness Hayter of Kentish Town]

My Lords, we have heard from the noble and learned Lord, Lord Judge, an indication of where the Government have arrived on this issue and that there will in future be a document stating why this measure is needed and what necessitated it, according to the Minister.

The Government’s changes, which I welcome, do not go as far as Amendment 34 and the others in the group, but they insert an element of both written explanation and scrutiny of the use of these powers. I still doubt the need for these powers. Since the Bill was introduced in the Commons—not even when it came here—I have been asking for examples of where such new offences might need to be created. Finally, after numerous times of asking, the Government this week were able to provide just one example; that is all. It related to the marketing of medicine where it is an offence to produce false or misleading information in applications for approvals. After six months, that was the only example they gave of where such a new criminal offence, imprisonable for up to two years, might be needed, so I am still not entirely persuaded. However, given the new procedure that will come up later in the Bill, it should include the written statement as part of the Explanatory Memorandum and say that such powers will be available only in relation to our exit from the EU anyway. If the Minister could confirm that they are also subject to the timings of sunset clauses, we would see the Government’s amendments as a great improvement.

Finally, these will be orders that the House could not simply debate or put down a regret Motion about. However, if necessary, there is a backstop so that if we were not persuaded by the written statement, we would still be able to ensure that the orders did not go ahead. I hope that will never happen. I hope that they will not be used that much; clearly, there is no plethora of examples where the Government feel the need for them. Given where the extra scrutiny has now been inserted, given that there is a sunset on these powers—I think I am right in saying that—and given that they will be used only for the purpose of exiting the EU, we would certainly be content with the noble and learned Lord, Lord Judge, withdrawing his amendment.

--- Later in debate ---

I have taken some time to explain the background to all this. I think it is a very important issue and that the noble and learned Lord, Lord Judge, has done the Chamber a favour with his persistence in requiring that this be teased out. However, I hope he will consider these concerns which the Government have about the removal of this power from the Bill, as the Government have endeavoured to consider his concerns about the provisions as they were drafted. I equally hope that the amendment tabled by the Government ensuring greater transparency to Parliament goes far enough that he feels able to withdraw and not press his amendments. I wish to make it clear that I cannot give any reassurance that the Government will return to this issue at Third Reading, so if the noble and learned Lord wishes to test the will of the House, I suggest that he should do that now.

[Lord Judge]

It is very tempting but I will not. The reason that I have been prepared to compromise with an interference with what I regard as a fundamental constitutional principle is that I recognise that there is a continuity required. We cannot suddenly not have criminal offences which exist on 31 March but which we no longer have on 1 April. I recognise that. I am also persuaded to act against my instinct by the fact that this is a sunset provision.

I shall in a moment seek leave to withdraw the amendment but may I urge the Government and, in due time—time will undoubtedly produce it—a Government who are from the current Opposition, as they now are: can we please stop this sticking into primary legislation of provisions which casually create criminal offences punishable with imprisonment? As I said earlier, it is a constitutional aberration. Notwithstanding my doubts about my own position, I am prepared to take the course that I am now but I assure the Minister that I would not necessarily take it if, in the course of the next few Bills we have to deal with, we have clauses such as this just put in. But for the time being, with gratitude to the Minister for her explanation to the whole House, I seek leave to withdraw this amendment.

Amendment 34 withdrawn.

--- Later in debate ---

[Baroness Oppenheim-Barnes (Con)]

My Lords, I am very sympathetic to this amendment’s aims, and have been ever since we joined the market. It relates to an issue that was one of my strongest concerns when making up my mind to vote against going in in the first place, which I did: the question of all the animal welfare measures, little and big, and the worst measure of all, which sees animals waiting overnight and longer at the docks—for perhaps two or three days—without any care. That alone would be good enough to make me Brexit for life, if I was not already. This debate allows me to bring to the cause a little good news. I understand that the animals which were being held at the ports because they had to be delivered alive in France have now been given help. The local animal welfare departments have removed them from the ports and are giving them water and food while they wait. That is only a small thing, but it is important and it is taking the lead.

I too am concerned about the judicial review. I do not want to see the whole issue bound up by complicated legal matters when the kind of thing that is necessary is available in a much less complicated way—and because it is less complicated, it is easier to police and to maintain. I hope that those moving this amendment, with whom I have great sympathy, will look again at these provisions. I want us to get this right. I do not want us to regret it. When the time comes, I want us to be able to say of this big achievement that what we have done is acceptable, enforceable and very badly needed.

[Lord Judge]

My Lords, I want to add my voice and underline, if I may, how serious the issue arising under subsections (3) to (7) is. There are many executives that would be desperately pleased to have provisions such as these in primary legislation. There is no reason whatever why Parliament should not be able to deal with any issue arising in the context of sentient animals—there is no exclusion about that. However, to exclude the possibility of somebody seeking a remedy before the court would be an astonishingly dangerous principle to put into any legislation. The fact that it arises in this very sensitive issue relating to animals is one thing, but a lot of citizens, and individuals who happen to live in this country, rely on the possibility of taking the Government or the local authority to court to make them account for the exercise of, or failure to exercise, their powers. This would set an alarming precedent.

[Lord Mackay of Clashfern (Con)]

My Lords, the subject of animals is an extremely important one and I have great sympathy with the spirit behind both the amendments in this group. However, this subject needs to be properly dealt with in a statute of the United Kingdom. I know that criticism has been made of the attempts so far, but there is always room for improvement, and constructive suggestions have been liberally made in the consultations. As far as I am concerned, it would be much better to have a good United Kingdom statute for these animals than to try to do it through adapting part of an EU treaty.

The technical question of judicial review is quite difficult. I am not sure just how crucial it is to the amendment from the noble Lord, Lord Trees, but, years back, skilful Lords of Appeal—Lord Reid, a Scottish judge, and Lord Wilberforce from this jurisdiction—developed a theory that makes it next to impossible to prevent judicial review in an Act of Parliament. They did so by saying that what Parliament has protected is the judgment that is supposed to be come to, but, if the judgment that is come to has been falsified by some mistake or lack of proper process, then it is not a judgment protected by these provisions—Anisminic was the case. As was said by the noble and learned Lords, Lord Hope and Lord Judge, at the end of a long process, the attempt to restrict judicial review was eventually torpedoed by these judges, with support of course. It is for that reason that the Government decided some considerable time ago not to put such protected clauses into legislation, because it is apt to mislead the public—they think that these clauses are, at face value, worth while, but when Lord Reid and Lord Wilberforce got on to them, they were not worth the paper they were written on.

European Union (Withdrawal) Bill

Lord Judge Excerpts

Report: 2nd sitting (Hansard): House of Lords
Monday 23rd April 2018 Lords Chamber

The authority of the courts is extremely important, but in our democracy it is limited, and limited for the extremely good reason that the ultimate control in a democracy should be in the hands of the elected representatives. However much we think this charter may have contributed, it can make only a very limited contribution and I am very interested to know, for example, how the noble Lord, Lord Pannick, will deal with Article 1. It applies only when you are implementing European legislation. What happens the rest of the time to your human dignity? This is the sort of problem the charter raises and, so far as I know, there is no solution.

[Lord Judge (CB)]

I very rarely disagree with the noble Lord, Lord Pannick, and there is a very good reason for that. On every occasion when I have had to give a judgment in a case which he has argued, I have found against him, and on every occasion when he has appealed my judgment he has succeeded. That is more or less accurate.

The issues that arise here can be very briefly summarised by reference to Article 50. It is not a point I would have made if the noble Baroness, Lady Lawrence, had been sitting in her place. In 2003, the previous Labour Government brought forward a provision that did away with the prohibition on a second trial—the ancient common law principle of double jeopardy. Faced with the prospect of new and compelling evidence, for example by further research through DNA and the like, with which we are familiar, the Act was passed. Article 50 prohibits that provision that was made in primary legislation. The result would have been that two men now serving imprisonment following conviction for murder of that innocent boy would never have been prosecuted to conviction.

--- Later in debate ---

[Lord Goldsmith]

It is always good to have a second argument when you are in front of the noble and learned Lord, Lord Judge.

[Lord Judge]

Perhaps, then, we had better find out what “the sovereignty of Parliament” means.

[Lord Goldsmith]

I come back to the central point I want to make. The Government made it clear and promised that rights would remain the same on exit day, but they could then be subject to change through the processes agreed and determined by this Parliament. Of all EU laws, the charter alone is being excluded. That drives one to question why that should be. Is it an ideological reason? Is it not wanting to see something that has “EU” attached to it? Or is it—which will be even more sinister and would worry me enormously—that there is an unhappiness and suspicion about fundamental rights? If there is any element at all that what lies behind this is a suspicion about fundamental rights and a suspicion that people should not be able to exercise those rights, that would be deeply unsatisfactory and a very good reason for not accepting the Government’s exclusion of this.

European Union (Withdrawal) Bill

Lord Judge Excerpts

Committee: 10th sitting (Hansard - continued): House of Lords
Monday 26th March 2018 Lords Chamber

[Lord Lisvane (CB)]

My Lords, there are few better warm-up men than the noble Lord, Lord Adonis, but I fear that I will disappoint your Lordships. As the Question formally before the Committee is whether Clause 12 shall stand part of the Bill, I will speak to Amendments 348 and 349 rather than moving Amendment 348. The amendments are in my name and those of my noble and learned friend Lord Judge, my noble friend Lord Pannick and the noble Lord, Lord Tyler. I can be very brief, even at this refreshingly early hour of the evening, as the issues in both amendments have already been considered by the Committee in one way or another. It may indeed be that we have had a sneak preview of the Minister’s response on both issues.

Amendment 348 would prevent fees or charges to be levied by tertiary legislation. At an earlier stage, I expressed concern that this Bill, already proposing to confer sweeping powers upon Ministers, should go even further and permit the making of the law of the land by persons and bodies authorised by a Minister. The authorisation would, as the Minister said in an earlier debate, be subject to the affirmative procedure, but once that authorisation had been made, the law made under it would be under no sort of parliamentary control and, unless in the form of a statutory instrument—which it would not be—would not even be required to be published.

The arguments against tertiary legislation become even stronger when the powers being given to persons and bodies would allow them to levy fees and charges which might well be used to gold-plate their functions. Clause 14(1) defines “public authority” by reference to Section 6 of the Human Rights Act 1998, and Section 6(3) of that Act, in turn, defines “a public authority” as including a court or tribunal—which is fine—but also,

“any person certain of whose functions are functions of a public nature”.

That spreads the net very wide indeed.

Amendment 349 returns to the issue of ancient principle that taxation should be by primary legislation, not by statutory instrument. When this was considered by the Committee earlier in its proceedings, your Lordships were supportive of the proposition that it should be for the House of Commons to impose taxation by primary legislation, not for Ministers to do it by regulations. In a sense, we are possibly getting a little punch drunk as we see power after power after power being arrogated to Ministers. This is one which should not be.

[Lord Judge (CB)]

My Lords, I was not able, for unavoidable reasons, to be here when the issue of tertiary legislation was addressed in the course of the debate on this Bill, so I want to add something. I do not think that even those who do not see eye to eye with me would accuse me of being an ardent advocate of secondary legislation: I am not. I spoke about this at Second Reading and have been extremely reticent on the issue in Committee, but I shall return to it in much greater detail on Report.

I support my noble friend Lord Lisvane. The provision we are considering—I will take it quite slowly, because this is how I see it—would vest powers in a Minister to use secondary legislation, with negligible proper scrutiny, if any, to bestow lawmaking powers on a public authority, with even less scrutiny. It amounts, in effect, to scrutiny being diminished to extinction. In that process, we as lawmakers are not doing right. We are simply handing power over to people who should not have it. This tertiary form of legislation is, therefore, even more questionable than secondary legislation, for the same reasons and—I add, at this time of night—with knobs on.

[Lord Tyler (LD)]

My Lords, I endorse the contributions of the noble Lord, Lord Lisvane, and the noble and learned Lord, Lord Judge, and draw attention to the work of the Delegated Powers and Regulatory Reform Committee, on which the noble Lord, Lord Lisvane, and I sit. One of the things the committee found most uncomfortable was the extent to which Ministers have played games with words in their explanatory memoranda. We were particularly critical of the reference in Schedule 4 to tax-like charges. The committee stated:

“A ‘tax-like charge’ means a tax. Taxes and tax-like charges should not be allowed in subordinate legislation. They are matters for Parliament, a principle central to the Bill of Rights 1688”.


It is not so late and therefore I shall indulge in some further remarks. My only really respectable connection with your Lordships’ House is that of my ancestor, the great Bishop Jonathan Trelawny, the Cornish folk hero who was one of the seven bishops to defy James II’s attempts to impose rules upon this country without Parliament’s acceptance. His portrait is in the Peers’ Guest Room—he is the one at the end with the Beatles haircut.

I make that point because I am amazed and ashamed that Members of the House of Commons have not seen the dangers in this part of the Bill. I speak as a former Member of the House of Commons. This issue goes back to not just the Bill of Rights and the Glorious Revolution of 1688, but far earlier. Reference was made to the Bill of Rights in previous exchanges in Committee. The short-circuiting of the most basic responsibility and role of the House of Commons of approving taxes seems to me an extremely important issue. We should not allow this precedent to be pursued in this Bill. It is the historic role of the House of Commons. I recall that when we had exchanges about tax credits, the former Chancellor of the Exchequer, Mr George Osborne, sought to short-circuit and get round the normal process by which the House of Commons decides financial matters. I remember at the time that the noble Lord, Lord Forsyth, referred, I think, to ship money and Charles I, saying that the last time a member of the Executive sought to short-circuit Parliament, he lost his head.

European Union (Withdrawal) Bill

Lord Judge Excerpts

Committee: 6th sitting (Hansard): House of Lords
Monday 12th March 2018 Lords Chamber

[Baroness McIntosh of Pickering]

We have established in this debate and in the earlier debates on Amendments 18 and 81 that precisely what the Government may wish to do, and what this amendment and Amendment 18 try to do, to which my noble and learned friend Lord Mackay has given a very elegant solution, are not permitted by the Bill. There is no legal basis. Will my noble friend come forward with a form of words to cover the 23 eventualities in the form of directives identified by the Library and other situations in the directive that apply to regulations, such as this, to give a legal basis to permit the Government to have the discretion where they choose to do so to implement the content of those directives and regulations at that time?

[Lord Judge (CB)]

If Clause 3(3) will not do the trick, will the Minister please take advice about whether we need to add EU regulation 536/2014 to the group of matters raised in Clause 2(2)?

[Noble Lords]

Oh!

[Lord Judge]

I ask the Minister merely to consider it; that way, we might have a solution.

[Baroness Goldie]

I must apologise to the noble and learned Lord; the Chief Whip sat down and bumped into me, so I was distracted from hearing what he had to say. I certainly offer to come back to that point.

--- Later in debate ---

[Lord Cormack]

Our leaving the European Union is an exceptionally unfortunate measure that will do great damage to this country, in my opinion. But the answer to my noble friend’s specific question is that it was enacted by Parliament—a Parliament of which he was not a Member but of which my noble friend Lord Deben and I were—and that, knowing the consequences, we voted for it because we believed that it was in the general interest of our country. We were behaving as Members of the House of Commons should behave. It was properly debated, thoroughly approved and it came on to the statute books as other things have done.

I go back to what I was saying when my noble friend interrupted me. We have a duty to protect and to urge the other place not to abdicate the central power of an elected House—to deal with taxation. I hope that when my noble friend replies we will have a slightly more satisfactory and understanding reply than we had last Wednesday. I hope, too, that he will ensure, if not today, that we have a glossary of all these terms, including charges, fees, taxes, contributions and levies. At the end of the day they all mean something very similar: imposing an obligation to pay. People should never fall under that obligation unless it is imposed by their representatives in Parliament. We have a duty, as the second Chamber—the unelected Chamber—to say to our colleagues at the other end of the Corridor, “Please do not abdicate; please flex your muscles; please do not give to Ministers—the 109 whom we talked about the other night—or to other bodies or authority a power that is only rightly yours”.

[Lord Judge]

My Lords, my name is to Amendment 126. I do not want to say very much. I can think of another word to add to that great list and I could give my view of the history of how taxation became the weapon for democracy, ultimately. Taxation is the ultimate control that the Commons has over the Executive. Just reflect on the set-to in the United States of America a few weeks ago: Senate and President at odds over money. These issues must be resolved at parliamentary level and House of Commons level—not by regulation.

[Lord Mackay of Clashfern]

The general principle referred to by the noble Lord, Lord Turnbull, which has been very clearly enunciated by the courts, is that no public authority, including local authorities, has the power or statutory authority to exact money that exceeds the amount that the local authority—or other person making the imposition—sets. The charge the person is required to pay must be just equal to the amount that will be needed to carry out the service, or other thing. If it does exceed it, it is taxation and that covers all forms; it does not matter whether it is a payment, charge, fee or anything else. That is a general principle. Therefore, the provision in Clause 7(7), preventing the regulations imposing or increasing taxation, prevents any local authority or other power having the power to make any such imposition.

On the amendment proposed by the noble Lord, Lord Lisvane, I wonder whether the first part of the clause —Clause 8(1), I think—is the subject of Amendment 126. My noble friend Lord Deben wondered why we were talking about this in a withdrawal Bill, but the clause says that we may have an international obligation that is breached by withdrawal; it therefore seems reasonable to deal with that in the withdrawal Bill because it is a consequence of withdrawal. That amendment implies that this power cannot be used to make any financial settlement that would cause a cost to the United Kingdom because, if it did, it would inevitably require taxation—presumably, whoever makes the settlement does not intend to defray the cost out of his or her own pocket. It is a fundamental restriction on the way in which these matters of international obligation may be resolved. I think I am right in that, but no doubt the noble Lord will tell us its effect on the amendment in due course.

--- Later in debate ---

Moved by

[Lord Judge]

87: Clause 7, page 6, line 17, leave out “relevant”

[Lord Judge]

My Lords, the amendments in this group go to a simple but crucial issue. The Bill proposes to give the Minister the power to create criminal offences by regulations. The proposal is slightly obfuscated by language, with the Bill saying that the regulations may not,

“create a relevant criminal offence”,

but the intention is that they will and the words are good enough to do so.

I know that your Lordships have kindly listened to me on this subject on a number of occasions and I will not go on about it more than I have to, but there is a simple principle: it is wrong for a criminal offence to be created without proper—not notional and not theoretical—parliamentary scrutiny. The fact that it has happened before, which it has, merely signifies—I am sorry to say this—that Parliament, including this House, was not sufficiently alert to the deviation from constitutional principles.

My objection is to the lack of scrutiny. Very recently during debate on the Sanctions and Anti-Money Laundering Bill, your Lordships gave a very strong indication to the Government that this was a concern that occupied the attention of all sides of the House. The result is now a significant government amendment to the original proposal. In the subsequent debate in the Public Bill Committee in the other place last week, on 6 March, the Minister, Sir Alan Duncan, acknowledged that the Government accepted,

“that the powers of the Executive to create criminal offences and regulations should be subject to appropriate parliamentary scrutiny”.—[Official Report, Commons, Sanctions and Anti-Money Laundering Bill Committee, 6/3/18; col. 119.]

Although he did not say so, the Government must have implicitly accepted that the theoretical arrangements for parliamentary scrutiny were inadequate, because the Minister then went on to reflect on possible options for improving the processes. It was this that culminated in the government proposal that, if offences were to be created by regulations, there must be “good reasons” for their creation and, once the Government had concluded that there were indeed good reasons, they then had to be justified by a detailed explanatory and open report to Parliament.

I leave open the argument that “good reasons” should give way to “necessary” but that is for another occasion. However, I acknowledge that, in the context of that Bill, this was a significant advance that would greatly increase the opportunity for genuine scrutiny by Parliament and therefore diminished Executive control. Today, I shall not set out the details of the proposed amendments to the Sanctions and Anti-Money Laundering Bill because they are government amendments, but it would make a great start for the Minister if he would indicate that, at the very least, the government proposals in the sanctions Bill will be carried into this one. I beg to move.

--- Later in debate ---

[Lord Callanan]

No, that is not what I meant.

It is therefore vital that the Bill can provide for “creating” criminal offences to ensure that no offences that are needed fall away as we leave the EU, and that businesses and individuals continue to comply with the law.

Any statutory instruments made under Clauses 7(1), 8 and 9 which create or widen the scope of a criminal offence will automatically be subject to the affirmative procedure so that they will be subject to a debate and vote in this House and in the other place. The Government accept that this level of scrutiny is important here and, as I said at the beginning of my remarks, I hope we can consider further safeguards. Therefore, I hope that with those assurances I have demonstrated why we think this element of the power must remain part of the Bill and that noble Lords will feel able not to press their amendments.

[Lord Judge]

My Lords, I am troubled by just one observation made by the Minister. I think someone has been advising him incorrectly. Speaking for myself, I have never come to a mutually agreeable arrangement relating to the Sanctions and Anti-Money Laundering Bill. I have certainly welcomed an advance by the Government relating to these issues, but, as I said at the beginning, I leave open the argument that “good reasons”, which are proposed, should give way to “necessary” and I have added that there is an advance.

Beyond that, I am very grateful to all noble Lords who have taken part in this debate. We really must not return—can we make up our minds now not to?—to the constitutional aberration of unexplained, and effectively unscrutinised, regulations creating criminal offences. That is the constitutional principle. In view of the observations made by the Minister, however, I beg leave to withdraw the amendment.

Amendment 87 withdrawn.

European Union (Withdrawal) Bill

Lord Judge Excerpts

Committee: 6th sitting (Hansard - continued): House of Lords
Monday 12th March 2018 Lords Chamber

[Lord Lisvane]

My Lords, in moving Amendment 110 I shall speak also to Amendment 135, both of which are also tabled in the names of my noble and learned friend Lord Judge, my noble friend Lord Pannick and the noble Lord, Lord Tyler, who like me is a member of the Delegated Powers Committee. The amendments seek to place controls upon the use of sub-delegation and the creation of tertiary legislation. We have had something of a preview to this in the debate on Amendment 71 held last Wednesday, and earlier today the horror story about the Bar Standards Board told by the noble Lord, Lord Thomas of Gresford, which I think would have greatly alarmed my nervous maiden aunts.

I was extremely grateful to my noble friend Lord Wilson of Dinton for moving Amendment 71 last Wednesday and to the Committee for its understanding of why I could not do so myself. My noble friend made a magisterial and compelling speech in which he pointed out that the powers in Clauses 7, 8 and 9 could be used to sub-delegate. Indeed, so compelling was his speech that the only person who disagreed with him in the debate was the Minister. That reminded me of the story of Benjamin Jowett: when he was the Master of Balliol and was outvoted 20 to one at a college meeting, he said, “Gentlemen, we appear to have reached deadlock”.

This Bill is riddled with provisions which have serious constitutional implications, and the unrestricted power of sub-delegation is one of them. It allows Ministers to authorise bodies and even individual persons to make law without the approval of Parliament. As the Delegated Powers Committee pointed out, there is no requirement for this legislation to be made by statutory instrument. If it is not made by SI, the Statutory Instruments Act 1946 does not apply to it and the legislation does not have to be laid before Parliament or even published. The possibility that law which the citizen must obey might not be published offends against the first of the late Lord Bingham’s eight principles of the rule of the law: that the law must be accessible as well as clear and predictable.

The Government memorandum submitted to the Delegated Powers Committee suggested that the power to make tertiary legislation is intended to be used sparingly. Once again we come back to the fact that what matters is what is on the face of the Act. If the power of sub-delegation is there, you can bet that it will be used whenever convenient to the Government of the day. Moreover, it will go on being used. In addition to these amendments, I have tabled Amendment 365 to paragraph 28 of Schedule 8 which would complete the removal of the exemption for tertiary legislation from the two-year sunset provision for secondary legislation-making powers. Slightly oddly, it has not been grouped with these amendments, but when we reach it, it will provide us with a further opportunity to consider the Government’s response to the amendments in this group.

As the Delegated Powers Committee points out, the power to make tertiary legislation could be given to new bodies to control and regulate, by legislation and without any parliamentary control, areas that are currently governed by EU law. These include aviation, banking, investment services, chemicals, agriculture, fisheries and medicines. They would all become in effect judges in their own cause. Amendments 110 and 135 would subject sub-delegation to the same parliamentary control and time limits as regulations in the first tier of delegation. I beg to move.

[Lord Judge (CB)]

My Lords, if we reflect on the words used by my noble friend Lord Lisvane, it is really rather chilling. There will be power in a Minister to create laws by giving him or her a blank sheet of paper so that he or she can write out whatever he or she thinks is appropriate. It will be uncontrolled and unscrutinised.

[Baroness Hayter of Kentish Town (Lab)]

My Lords, I have little to add but I have tabled Amendments 350 and 351 in this group. I should like to mention the importance of ensuring parliamentary scrutiny, in particular of tertiary legislation which was mentioned by the noble Lord, Lord Lisvane. We will deal with that issue later in a different group. The issue he raises is covered in paragraph 15 of the report of the Delegated Powers Committee. There is to be no time limit on the ability to pass tertiary legislation.

As has been made clear both last Wednesday and today, in seeking to bring into UK law the provisions that are currently effected in the UK by virtue of the 1972 Act and our EU membership, the Government have simply slipped into a belief that they should take control of all of this and have drafted for themselves powers and possibilities that rightly belong in Parliament, not with the Executive. As has been said, these amendments are to ensure that use of the powers will be properly scrutinised, and that they will be used by Parliament, rather than Ministers. I hope that the Minister has heard this often and strongly enough to be able to indicate, even at this late hour of the night, that it should be the Government who bring forward amendments on this on Report, because the arguments have been so well made. We should expect them to take the next step.

European Union (Withdrawal) Bill

Lord Judge Excerpts

2nd reading (Hansard - continued): House of Lords
Wednesday 31st January 2018 Lords Chamber

[Lord Judge (CB)]

My Lords, without this Bill exit day will be an Armageddon of legal chaos. Governments, public authorities and every single citizen will be in a complete mess; he or she will simply not know where they stand. I welcome the Bill. The result, of course, will be that parliamentary sovereignty will be restored. Parliament will no longer be subject to the supremacy of European law. The Bill itself speaks about this, but I do not understand why. It is a concept known in Europe, not a concept known in this country. When we leave Europe, the concept of European supremacy will simply be ridiculous.

This means that all the laws sent to us by Europe for the last 40 years or so will have legal force, not because they come from Europe but because, and only because, our Parliament has in effect re-enacted them for as long as it wishes them to stay in place and made them part of our constitutional arrangements. That, indeed, is parliamentary sovereignty. The summary, in the end, is this: the supremacy of European law will be at an end and the ultimate law-making power will have returned home.

This Bill duly honours the result of the referendum. I shall not spend time arguing the merits or demerits of the decisions that have been made by this country—we have heard quite a lot of them. I just want to draw attention to this: a little scrutiny reveals the flaws in this Bill, and we must rectify them. The Constitution Committee has identified a whole series of problems with it, and I shall not repeat them. I want to make a much broader point arising from the Constitution Committee’s report, but also from any reading of this Bill. Looking at the Bill as a whole, with the excitement of sovereignty returning home, I ask rhetorically: does the Bill as presently drafted, simultaneously serve to reduce sovereignty, not in constitutional theory, but in constitutional practice?

For the last 40 years parliamentary authority over the Executive has steadily diminished. It is no good fooling ourselves: that is what has been happening whichever party has been in power, and even in the time of a coalition. Perhaps this is because, under our obligations under the European Communities Act 1972, we had to accept laws. Perhaps it is because time is shorter than it was. However it has occurred, Parliament has acquiesced and perhaps been blind to the problem. Regulation-making powers have been strewn around Ministers like confetti at a happy wedding. Not a single Bill comes before this House in which there are not regulation-making powers. The last Bill we looked at, the Sanctions and Anti-Money Laundering Bill, was nothing but regulation-making powers. There was nothing in it except for regulations or regulation-making powers.

I take these figures from The Devil is in the Detail, a marvellous book by the Hansard Society. Do we appreciate that every year 12,000 pages—12,000 small-typed pages—of laws are made by regulation? I wonder who reads them all—nobody. That is the result of vesting power in the Executive. So if parliamentary sovereignty is to mean what it says, law-making by Ministers should be reduced. We should look very closely when we decide that we are going to give these law-making powers.

This Bill as drafted, undoubtedly enhances ministerial law-making. In theory, that is all fine—there is parliamentary scrutiny. In the Commons, the Government accepted an amendment saying that there would be a sifting committee, and the Leader of the House suggested that she would have the same arrangement here. That is fine—till when? Do your Lordships realise what the sifting committee’s power actually is? It is the power to require an affirmative rather than a negative resolution procedure.

Again, I am taking my figures from the book that I have recommended, and I do recommend it—the summary is very easy. The whole book is pretty well written but when noble Lords have read the summary, they will not need to go much further. It tells us that since 1950 170,000 statutory instruments have been made. Of those, 17 have been rejected—that is, 0.01%. That has happened in the Commons 11 times, the last occasion being 1979. In this House, it has happened six times. On the last occasion, we were nearly drummed out of existence for having the nerve to take on the Government over one of their regulations, which was to do with the £4.5 billion arising from tax credits. Incidentally, I hope everybody realises that Mr Osborne was using powers given to him by a Labour Government. That is the problem.

My time is nearly up. When we come to look at the Bill, can we please examine whether it gives more powers to the Minister than he or she should ever have and whether we should control the Executive better than we do? If we do not do that now with this Bill, we will never ever recover the opportunity to do so again.