Northern Ireland Protocol Bill

Lord Judge Excerpts

Committee stage
Monday 7th November 2022 Lords Chamber

[Lord Judge (CB)]

My Lords, I just wonder what Clause 18 is supposed to mean. Does it really mean that the Minister of the Crown may do whatever he likes? Yes, it does; that was what we were discussing on Wednesday, when noble Lords and the Government listened to me. I had a dream over the weekend that the Minister today is going to get up and say, “Lord Judge, you were entirely right on Wednesday. We have changed our minds: we are going to put this Bill into proper shape”.

[Baroness McIntosh of Pickering (Con)]

My Lords, I take this opportunity to ask my noble friend the Minister what discussions there have been with the devolved Assemblies and Parliaments as to the process that will be used if these regulations are brought forward.

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This brings us back to the prospect of removing entire clauses from the Bill on Report, should we even be in a position to proceed at the appropriate time. So, these amendments in a sense restate some of the arguments we had at earlier stages and I look forward to the Minister’s response.

[Lord Judge (CB)]

My Lords, I keep hearing the words “democratic accountability” and then I look at the Bill and I cannot find any. We have listened as Clauses 4 to 21 have been debated in this Chamber. If we add those clauses together, we have a lamentable lack of democratic accountability. I expect it will be said, “Ah well, as always, the House of Commons can reject any regulations” and so on; and, “We have a long history of how there are 16 different ways in which the regulation-making powers can be exercised.” To that, I will say: but they have not exercised that power since 1979. This is not democratic accountability; this is quite extraordinary legislation, passing huge amounts of power into the hands of the Executive. Others have spoken. Clause 18 creates tertiary power—guidance—which is not quite a regulation of the sort we are talking about but can create matters that require compelling attention from those who have to abide by the guidance.

Let me just look at Clause 22(1), because it makes what has gone so far rather trivial. It states:

“Regulations under this Act may make any provision that could be made by an Act of Parliament (including provision modifying this Act).”


I then add the words “and any regulations made under it”, because that follows. What it means is that the Bill, having been successfully enacted, could be dismantled by the Government two weeks later. It could be dismantled by a Government three years from now or by a Government 10 years from now. It could restore the very thing that the Bill says it is trying to get rid of—all in the hands of a Minister making regulations under the Act. That is not Henry VIII. I have lost count; I have tried to add it up in different ways. Is it Henry VIII plus Henry VIII for Clauses 4 and 5? That comes to about Clause 79. It cannot be. Is it Henry LXIV, because it is Henry VIII squared? This is an extraordinary power when the Bill is already riddled with Henry VIII powers. I am not jesting about this. The Bill provides for its restoration at any time that the Government of the day choose, or any part of it, or some of it along with other legislation. That is not how we should legislate. Should we not be ashamed of ourselves?

Parliament gave Henry VIII the power to bastardise his first and second children, to say that he was the Pope in England and that he was God’s messenger on earth, to decide the succession, and to say that the monasteries should all come down—the widest act of criminal damage this country has ever seen. Then he produced a Bill giving him the power, by proclamations, to create new laws. I shall not read it all out. What did the successor to that Parliament do? It said no. There was a battle, but in the end that power had this proviso to it put in by the Commons:

“nor that, by any proclamation … 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’s time”.

He was not allowed to modify an Act of Parliament by proclamation.

We do not have proclamations anymore; we have statutory instruments. We have regulation-making powers that amount to a modern form of proclamation. We must not agree to clauses of this kind in any Bill. Those that we have agreed to—shame on us. We must not agree to this one. We must insist on the determination and, in its case, the courage shown by the 1539 Parliament not to give the King the powers he wanted. We must not give the Government the power they want in this clause.

[Lord Pannick (CB)]

My Lords, as we go through this Committee, we are discussing clauses that confound constitutional principle in ever more astonishing ways. I entirely agree with what was just said by the noble and learned Lord, Lord Judge. It is quite extraordinary that we should be asked to approve a clause that would confer power on a Minister to make by regulations

“any provision … including provision modifying this Act”.

The Committee has heard a number of powerful speeches over its four days explaining why it is wasting parliamentary time in analysing the Bill when it is a sideshow to the need to resolve the dispute with the EU. Whatever view you take about that issue, what is a manifest waste of time is for this Committee, and for Parliament on Report, at Third Reading and in the House of Commons on ping-pong if it comes to that, to debate, amend and approve legislation after lengthy debate, only for Ministers to have the power to say, “I don’t care about that. Parliament might have agreed it, but I’m going to set it aside. I’m going to substitute something else.” What is the point of parliamentary debate if that is what a Minister can do?

Indeed, such is the breadth of this provision that a Minister would have a power to substitute in the Bill something that he or she approves of that has been specifically rejected by Parliament. Parliament might have passed an amendment against the views of the Government, yet, under this clause, as the noble and learned Lord, Lord Judge, said, two weeks or three years later the Minister can say, “That may be what Parliament has done, but I’m going to insert something different”. As the noble and learned Lord said, we really have to take a stand. This cannot be right in principle and it cannot be acceptable to Parliament.

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[Lord Ahmad of Wimbledon (Con)]

My Lords, I was merely emphasising. I did refer to earlier clauses as well when I was giving one specific example in this particular group. But I hear what the noble Lord says, and, of course, I recognise that there are issues, particularly in this clause, about the powers that are being proposed. In coming on to that particular point, in relation to the concerns raised by the breadth of powers, each individual power that is being proposed in the Bill is being constrained by its purpose. None of them is a “do anything” power, and Clause 22(1) does not make them so: it merely ensures they can fully fulfil their purposes.

[Lord Judge (CB)]

The clause says that regulations under this Act may make

“any provision that could be made by an Act of Parliament (including provisions modifying this Act.)”

The words are completely expressed.

[Lord Ahmad of Wimbledon (Con)]

As I said, we are seeking to put a power in the Bill, and I will provide clarification on that. Each individual power that we are seeking to take in this respect is being constrained by its purpose—but, if I may, on that point, I will write to the noble Lord once I have talked to officials specifically about this aspect of the debate.

Northern Ireland Protocol Bill

Lord Judge Excerpts

Committee stage
Wednesday 2nd November 2022 Lords Chamber

[The Senior Deputy Speaker (Lord Gardiner of Kimble)]

My Lords, I must inform the House that, if Amendment 16 is agreed to, I will not be able to call Amendments 17, 18 or 19 by reason of pre-emption.

[Lord Judge (CB)]

My Lords, I shall be very brief and will say nothing about the breadth of the power being sought by Clause 12. I will read Clause 12(3):

“A Minister of the Crown may, by regulations, make any provision which the Minister considers appropriate”.


We all know what that means: a Minister will be empowered to create any regulations as he or she thinks fit. That is not objective: as he or she, sitting down, thinks fit. It is purely subjective. If we allow this piece of legislation to go through, we are saying to the Minister, “At whatever time it may suit you, take a blank sheet of paper and either write with a pen or type on your laptop whatever you think you want”. That will then be put before the Commons and the Lords, and, as they have not rejected anything for an eternity in real terms, it will become law.

Is that really how we think that power should be given to Ministers anywhere within the UK? It surely is not. There are other ways of making regulations. Good heavens, no Minister needs a lesson from me in how to create regulations; we are bombarded with them all time. But I do ask the House: is this really how we expect to be governed? The Minister can do what the Minister likes. The clause uses a different and longer phrase—“considers appropriate”—but it really means no more than whatever he or she wishes. It is not good enough.

[Viscount Hailsham (Con)]

My Lords, I simply express my very strong support for what the noble and learned Lord has said: there is absolutely no limitation on the power conferred on the Minister to make

“any provision which the Minister considers appropriate”.

There is no test here of necessity or a requirement that the Minister should be satisfied that there are reasonable grounds for thinking that the regulation is necessary. In any event, the regulation is both unamendable—as all regulations are—and subject to the negative procedure, which means in effect that it will never be discussed. So it is thoroughly bad. I have no doubt that it is for that reason that the Joint Committee recommended that this particular power should be removed from the Bill, and if I am given the chance to vote for that view, I shall do so.

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[Lord Purvis of Tweed]

My Lords, Amendment 20 is, in many ways, connected and therefore I need not be as long about this

Let me quote from the Delegated Powers and Regulatory Reform Committee on Clause 13:

“Parliament has no knowledge of the Government’s plans but is meanwhile expected to rubber stamp all the regulation-making arrangements.”


That surely is not a means by which we make good legislation. The committee is highlighting Clause 13(1), which states that

“Any provision of … the EU withdrawal agreement, is excluded provision so far as it confers jurisdiction on the European Court in relation to … the EU withdrawal agreement”.


As highlighted by the DPRRC and others, it is a stretch to say that the invocation of the defence of necessity would permit the extending to all parts of the exclusion of the European court. I should be grateful if the Minister could state in clear terms why the Government’s legal position, which does not clarify this, states so.

There is a policy concern, which was aired so well by Stephen Farry MP when this was considered in Committee in the Commons. If, as seems to be the Government’s position, there will still be Northern Ireland direct interaction with the EU single market—with north-south trade as a major part of the Northern Ireland economy—without the European court having application, it puts at risk what that genuine market access is for Northern Ireland. He made that point in clear terms and I need not add to it, because the case is very strong. The policy paper The UK’s Solution, when it highlighted the problems, did not suggest the removal of the court altogether either. So is this a red line in the talks for the Government?

Secondly, concern has been raised about human rights consideration. The Northern Ireland Human Rights Commission has highlighted the fact that the breadth of the powers in

“Clause 13 of the Bill would restrict the CJEU’s interpretive role in disputes relevant to Protocol Article 2”.

We discussed on Monday the need for that to be dynamic in relation to the obligations under Article 2, and its potential removal will create concern. I hope that the Minister is able to be clear, in response to the Northern Ireland Human Rights Commission, that there would be no diminution of rights.

Given that the Government have not made the case, and given the concerns about the impact on the operation of the single market and Northern Ireland’s position within that, as well as the human rights concern, I beg to move.

[Lord Judge (CB)]

My Lords, I shall not repeat myself, but I shall draw attention to the fact that, in the debate on the previous group, the Minister kept telling us that the word “appropriate” had been used in circumstances like these, as if that was something to be greeted with joy. Each of those pieces of legislation was a dreadful abdication by Parliament of its responsibilities. Even if the Minister is right—I am not challenging his veracity or judgment; let us assume he is right—that so far none of them has caused any problems, it would be nice to know that and I take it from the Minister that none has, but that does not mean that they may not cause huge problems in the future, or that when we have a change of Government, which we may have, that will not cause problems when their Ministers decide that they are going to apply these regulations. I really find that argument “It has been done before; therefore it is a precedent”—and I am a lawyer—but I do not think all precedents are wise and that one is a particularly unwise one.

I know I am trespassing back on to the previous debate, but I have another concern. During his reply, the Minister offered a number of reasons why this regulatory-making power was needed. Fine, but why are they not then put in the legislation, so that we can have a look at what these regulatory powers, at any rate at the moment, are designed to address? For the purposes of this group, if there are matters which the Government have in mind which they think can be served by a regulatory-making power, fine, but let us see what the primary legislation should contain.

Women’s Rights to Reproductive Healthcare: United States

Lord Judge Excerpts

Tuesday 28th June 2022 Lords Chamber

[Lord Ahmad of Wimbledon (Con)]

My Lords, I recognise what my noble friend has said. Any democratic country—any open society—gives everyone the right to express their view. What demonstrates the strength of our own country is that, while you might not respect a particular view, you respect and defend the right of someone to hold an opinion contrary to your own. We are a diverse, rich country in all sorts of aspects, including our faith diversity. We also recognise that America is a shining light and the closest ally of the United Kingdom. There is much that we share on strengthening democracy and human rights around the world; that will remain a strong sense in our focus globally as well.

[Lord Judge (CB)]

Is not the lesson for this country from that decision that there should be absolutely no political involvement in the appointment of senior judges?

[Noble Lords]

Hear, hear!

Nazanin Zaghari-Ratcliffe

Lord Judge Excerpts

Monday 15th November 2021 Lords Chamber

[Lord Goldsmith of Richmond Park (Con)]

My Lords, no one disputes that Iran’s treatment of Nazanin and others in similar circumstances is inhumane and cruel, exceeds any normal boundaries of behaviour by a state and is completely unacceptable, but I cannot add more to what my colleague the noble Lord, Lord Ahmad, said in answer to the same question just a few weeks ago.

[Lord Judge (CB)]

Do we owe money to Iran? If we do, why has it not been paid?

Official Development Assistance

Lord Judge Excerpts

Thursday 10th June 2021 Lords Chamber

[Lord Ahmad of Wimbledon (Con)]

My Lords, the noble Lord should recognise—I am sure he does—that, as I have said repeatedly, we have been faced with the worst economic contraction for almost 300 years and a budget deficit of close to £400 billion. It is therefore right that we take time to understand fully what the long-term impact of our financial position will be. As the Chief Secretary to the Treasury made clear this week, we have had to look at a range of fiscal measures, including our situation on debt and borrowing. Last year we borrowed over £300 billion and this year we are forecast to borrow a further £234 billion. We will provide details as we move forward. However, I am sure that, if the noble Lord reflects, he will agree that we are facing very challenging times. Notwithstanding that, we are still among the largest providers when it comes to development support across the globe.

[Lord Judge (CB)]

My Lords, I draw attention to the fact that I have a daughter who works in overseas development, but my question is not directed to the merits or demerits of the government proposal. Following up the question of the noble Lord, Lord Purvis of Tweed, how is it consistent with the sovereignty of Parliament, which is, after all, the pre-eminent constitutional principle that all of us in this Chamber embrace, for an unequivocal statutory obligation on the Executive to be postponed without further reference to Parliament, except through a mere Ministerial Statement? At least with Henry VIII provisions we have the notional fig leaf of parliamentary consent, but this is Executive reliance on Section 3 of the Act and it removes that fig leaf. Is not the sight rather unpleasant?

Global Human Rights Sanctions Regulations 2020

Lord Judge Excerpts

Wednesday 29th July 2020 Lords Chamber

[Lord Judge (CB) [V]]

My Lords, I support these regulations but voice two reservations relating to the rule of law which might arise on future occasions. First, in his Statement, the Minister in the other place said that, in practice, people designated would be able to request a review from the Minister and be able to challenge the decision in court. Those words were repeated here today by the Minister. Let me make it clear that in the context of due process, this is not simply a matter of practice; it is not simply a matter of the Executive’s good will in deciding to offer their benevolences to individuals. Due process is a matter of entitlement and of principle. I invite the Minister to confirm at the end of the debate that the ordinary principles of judicial review will apply, in relation to both a review and a challenge in court.

The other point arises from the creation of criminal offences by statutory instrument, which under Regulation 32(1)(d) carry a sentence of seven years’ imprisonment, no less. This system of creating criminal offences by statutory instrument is extremely suspect. Such offences need to be created by primary legislation. Many of us, on all sides, during the passage of the primary legislation, raised our concerns about these issues. They remain, but the Act has been passed.

I suggest that if these times had been different, and if these particular provisions were not so heartening, obviously justified and very long overdue, my welcome might have been far less enthusiastic. I suggest to the Minister that he should not try to do this too often.

Sanctions and Anti-Money Laundering Bill [HL]

Lord Judge Excerpts

3rd reading (Hansard): House of Lords
Wednesday 24th January 2018 Lords Chamber

[Baroness Bowles of Berkhamsted (LD)]

My Lords, I start by thanking the Minister, the Bill team and other officials, who have all played their part in getting this suite of amendments to Clause 43, as it now is, and Schedule 2 on to the Marshalled List. We had a flurry of meetings following the Recess and, once we got down to detailed discussion with papers and checklists, good progress was made. As has been said, I have added my name to the amendments because they deliver the understandings reached in our meetings—and that is also the view of my noble friend Lady Kramer.

I thank the noble and learned Lord, Lord Judge, and the noble Lords, Lord Pannick and Lord Collins, who on Report added their names to my amendment, which paved the way for today’s amendments and for the undertaking given on Report regarding tighter language in the potential modification of the definition of terrorist offences. That yet-to-be amendment depends on achieving resolution in the other place on how to deal, on the face of the Bill, with any necessary extension of criminal offences. I remain ready to assist with that on the anti-money laundering aspects.

When we started out with the Bill, there was no policy in Part 2, yet it gave sweeping powers to amend, rewrite or revoke the anti-money laundering legislation. There were no safeguards, save for the Minister saying, “Trust me—and all my successors—in all circumstances”. Clause 43—Clause 41 as it then was—could have resulted in too little in future, and Schedule 2 could have allowed too much. It took a bit of a journey to elucidate that the problems lay as much with what was not in the Bill as with what was in it, and I thank your Lordships for bearing with me in my endeavours to explain and then distil the main essence of the missing parts.

The words “enabling or facilitating” in Amendment 1 to Clause 43 will further define the detection or investigation of money laundering and terrorist financing purposes for which regulation may be made. This means that the scope and effectiveness of the present rules cannot be undermined—that would hardly be “facilitating”—but it gives some leeway for change, such as updating thresholds or removing redundant measures that perhaps other vocabulary such as “maintaining” or “strengthening” would have prevented.

My concerns with Schedule 2—apart from criminal offences by regulation—were that it was not at all limiting, potentially covering anyone and everyone, with unlimited scope to the burden imposed and no provision for relevance or guidance. Now, Amendment 6 narrows the scope of who can be covered and reflects far better that it is a shared process where the assessments are made at the three levels of Home Office and Treasury, supervisors and relevant businesses. Along with the protective effect of amended Clause 43, this provides the framework we sought and that, in the context of the current regulations, I described as the cascade of responsibility. No longer can it be read that an individual or business takes on the whole burden.

Amendment 7 is now clearer in its drafting and, very importantly, businesses will be subject only to a burden that is appropriate having regard to the size and nature of the business that the person carries on—now defined as “relevant businesses”—and those businesses also have to be of a kind that entails risks relating to money laundering, terrorist financing or other threats to the integrity of the financial system, which now appears in Amendment 8 and was part of the Report stage concessions.

Together with other amendments from Report, with the statement by the Minister that, despite the without prejudice wording, Schedule 2 is limiting, and with the agreed pending matters to be dealt with in the other place, I hope we can all agree that this is a much improved Bill with regard to the administrative anti-money laundering aspect of Part 2.

More generally, I hope that the Government will take note, as other Brexit power-transferring Bills come along, that they do require policy to be stated or restated alongside empowerments, especially when they give sweeping powers to redo everything by regulation. In particular, the twin spectres of permissions to do too much and permissions to do too little need laying to rest.

[Lord Judge (CB)]

My Lords, I had not intended to speak again—your Lordships have been patient with me already—but there is a slight problem. Someone in the Minister’s office must have had a Homeric nod, because Clause 43 makes the express provision that regulations under subsection (1) may not make provisions that create new criminal offences. That was consequent on the vote in the House last week. Unfortunately, criminal offences remain in Schedule 2. Regulations under Section 43, in paragraphs 18 and 19, provide for the creation of criminal offences. Something has gone wrong and I look forward to the Minister telling the House how he proposes to deal with it.

A similar point arises in connection with Clause 17. The original clause made provision for the creation of criminal offences punishable by up to 10 years’ imprisonment. That proposal was defeated in this House and does not appear in Clause 17, which is the former Clause 16. However, in Clause 17(6) there is a provision that:

“Regulations may provide that a particular offence which is … created by virtue of this section”.


There is no such power, so I wonder whether the Homeric nod extended to both parts of the Bill.

[Baroness Northover (LD)]

My Lords, I thank the Minister for the amendments he has tabled. I support the noble and learned Lord, Lord Judge. One has to think that the continued inclusion we have just heard described was inadvertent and that the Minister will make sure that it is cleaned up immediately in the Commons—otherwise we will have to address the issue when the Bill returns to this House so that it is consistent throughout.

Sanctions and Anti-Money Laundering Bill [HL]

Lord Judge Excerpts

Wednesday 17th January 2018 Lords Chamber

Moved by

[Lord Judge]

71A: Clause 41, page 28, line 38, at end insert—
“( ) Regulations under subsection (1) may not make provisions that create new criminal offences.”

[Lord Judge (CB)]

My Lords, the issue which arises on this amendment captures precisely the same constitutional point on which your Lordships expressed your views on Monday. It is therefore disappointing that the Minister has not been able to acknowledge the view that vesting wide-ranging powers in a Minister to create criminal offences by regulation is constitutionally troublesome. Troublesome is a modest word; very troublesome is not much stronger; but understatement perhaps has something to do with my disappointment, because there is a further disappointment. During the course of the debate on Monday, the Minister made clear before the vote that he knew and, to use his words, “totally accepted” the concern of the House about the creation of criminal offences using secondary legislation.

There is a further reason for my disappointment. At least on the sanctions part of the Bill, the Minister was able to advance an arguable point—not a strongly arguable point, but an arguable point—that it was necessary to have the legislation in the form proposed because, after our departure from the EU, there would be a gap and sanctions would be needed which could not be provided for. In other words, there had to be an element of continuity. As I said, it was a colourable argument, but it was an argument.

No such argument is present in relation to this amendment. This is not a provision for continuity; it is not a provision for saving anything; it is a distinct part of a long Bill which is entirely creative and in no sense preservational. We have this very long Bill, and the legislation on money laundering which we are concerned with today is a very short part of it. There is no primary legislation in it at all; it is all regulation-making powers. It is backed up with an endless further supporting group of regulation-making powers in Schedule 2: on and on they go. I shall come to look at one or two of them in a moment.

Where criminal offences exist, and they do here, and if ever you were to be deterred from committing offences, there is also ample protection. The regulations which will support the regulations include: the power to have a supervisory body; directions for investigation; enabling those with the powers to do so to come into your home to search; liability to civil penalties; the fact that you can be caught if you are doing this abroad; and so on and so forth. There are ample powers, therefore, to provide the evidence which would be necessary to prove one of the many offences in the Terrorism Act, the Counter-Terrorism Act, the Terrorist Asset-Freezing etc. Act, the Proceeds of Crime Act—the litany is endless, and I shall not weary your Lordships with it.

Perhaps we may consider for a moment some of the offences which you can commit which exist and will exist whether we stay in Europe or come out of Europe—whatever we do until Parliament repeals them. There is the offence of entering into money laundering: precisely what this is about. There is the offence of concealing the proceeds of crime: precisely what this part of the Bill is about. There are endless offences currently in existence of which you will be guilty if the regulations come into force but which we do not need the regulations to base the prosecution on. The statute book is full of offences.

In none of our debates so far has a single possible gap been identified in the criminal law as requiring closure. I would have a recommendation to make if one had been identified—come back to Parliament—but there is none. As with the previous part of the Bill, we are invited to hand over power to a Minister which, save in the most exceptional circumstances, should remain within the power of Parliament to give or refuse on proper scrutiny.

[Viscount Hailsham (Con)]

Would the noble and learned Lord also agree that, if these powers were to be given, they should be exercised only in an emergency situation and that, heretofore, the Minister has not been able to identify any likely emergency not covered by existing legislation?

[Lord Judge]

I agree—and I do not propose to add anything to that, with no discourtesy to the noble Viscount. That is the reality. These powers are not to be given, save in the most exceptional circumstances—and I would not define them, but I would invite some suggestion of what is exceptional here.

So here we have it. There is no self-evident necessity for this. The criminal law covers what is proposed to be covered in the regulations that are proposed to be allowed to be created. Without this amendment, which I am advancing, we would once again be allowing an alarming accretion of power to the Executive. We should not do it; we did not do it on Monday; let us not do it today. I beg to move.

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[Lord Judge]

I thank all noble Lords who have taken part. I fear that the disappointment I expressed about the Minister’s reaction remains. Of course it is true that from time to time, following primary legislation, Parliament allows regulations to be created which would impose a criminal sanction. However, I underline that we are not dealing here with a regulation made on the basis of primary legislation which identifies a criminal offence: this is a regulation to create offences based on something that is only a regulation. In other words, the Minister will have complete power, subject to the affirmative resolution procedure, to decide what should fall within the ambit of the regulations, and then complete power—quite apart from all the millions of provisions in the schedule—to create criminal offences. That is simply wrong in principle.

Although I have listened very carefully, there has been no suggestion from the Minister that, in reality, there are any serious available offences that are not adequately covered, for deterrent and punishment purposes, by the endless stream of legislation to which I referred when I began my submission. What is more, none of the letters to which the Minister referred, from the CPS and so on, pointed out that here is a gaping hole which must be filled. This House took a decision on Monday; it would be astonishing if I did not give it a chance to consider again what the position should be. Therefore, I seek to divide the House.

--- Later in debate ---

Moved by

[Lord Judge]

98: Clause 44, page 29, line 31, leave out paragraph (a)

[Lord Judge]

My Lords, my concern with this clause is that it is a Henry VIII provision. A number of your Lordships have listened to me on the subject of Henry VIII clauses and I do not want to repeat myself but it remains a matter of puzzlement to me that Governments of all different hues and compositions rely on them. To rely on such a clause is not to rely on a badge of honour—Henry VIII was a monstrous tyrant. There are many things about him that I would like to say but anybody who thinks that Henry VIII is less than a badge of shame should just look at the story. Ignore the hypocrisy of sleeping with Anne Boleyn and not Catherine of Aragon because his brother had slept with Catherine, when he himself had earlier slept with Mary, Anne’s sister. How do you square that for honesty and integrity? Much more seriously, how do you claim to have clauses in the name of a man who gave his solemn oath as the anointed monarch to Robert Aske at the Pilgrimage of Grace that he would reform, and then sent his troops out under the Duke of Norfolk to exercise and wreak vengeance and havoc so as to deter anybody from ever rebelling against him again?

Noble Lords will not want to hear any more from me on Henry VIII, but he was a monster and these are monstrous clauses. Take this one—with Clause 44, there is no primary legislation at all. As I have said in the course of the debates on other aspects of the Bill, one cannot find anything in it to bite on. It just says, “Let’s give the Minister regulation-making powers for this, that and the other”. I am not suggesting this about our Minister tonight, but it is, “Come in and buy one: take anything you like—it’s regulations”. Can we bear that in mind, given that we are now to have a regulation which can be supplemental, incidental, consequential, transitional or saving, and which may amend, repeal or revoke enactments whenever passed or made—possibly even in the future?

This is all being done on the basis of an unknown law, because the Minister has not yet brought the regulations into existence. In advance of the law being made by regulation, we are giving the Minister power to amend the regulations and to do away with statute. This is in a world where, as we discussed earlier, we already have the Terrorism Act, the Counter-Terrorism and Security Act, the Terrorism Asset-Freezing etc Act and the Proceeds of Crime Act—goodness knows how many—all of which bear on this Act, and all of which will be susceptible to amendment repeal at the Minister’s behest.

The lesser will override the greater; the secondary will override the primary; and the Minister is, in effect, going to replace Parliament. I hope that when the Minister comes to deal with this part of the debate, he is able to reflect on the vote earlier this afternoon on allowing the Minister to create criminal offences by regulation. That vote, which I urged on the House, reflected a constitutional concern about too much power being vested in any Minister. Today, the vote against giving Ministers these extraordinary powers was clear and unequivocal. It is a sign that Ministers need to be cautious; that maybe times will come when Ministers will not be given Henry VIII powers just because they ask for them, and will have to reflect carefully before they allow such a clause to be included in any Bill. For the time being, I beg to move, and I invite the Minister to address the consequences of this afternoon’s vote.

[Viscount Hailsham]

My Lords, I support what the noble and learned Lord has said. My own view is that the power in the Bill gives far too great a power to Ministers. The fact that this specific power is subject to the affirmative resolution procedure is not a sufficient safeguard, not least because—a point I have made time and again—the procedure does not provide a power of amendment.

Let us consider for a moment what this power enables the Government to do. It could be used in amending, revoking or repealing existing legislation or to extend classes of offence to which the amended legislation applied. It could be used to increase penalties. It could be used to remove statutory defences. It could be used to amend the definition of criminal intent. Indeed, it could make absolute offences that presently require proof of a specific intent. Because it is an amending power, it could be used to give further powers to the investigating officials or to increase the penalties imposed by the courts.

One can get a very good guide as to what could be done from the clause of the Bill on enforcement, Clause 16, where one can find among other things that the regulations could impose a sentence of imprisonment of up to 10 years. That could be done by regulation—without the power to amend. There is a further objection if one actually considers, just for a moment, the purpose that can be used to justify the regulations. Clause 1(2) states:

“A purpose is within this subsection if the appropriate Minister making the regulations considers that carrying out that purpose would—


(a) further the prevention of terrorism, in the United Kingdom or elsewhere,

(b) be in the interests of national security,

(c) be in the interests of international peace and security, or

(d) further a foreign policy objective of the government of the United Kingdom”.

Paragraph (a) is all right, but paragraph (b) is becoming pretty broad and paragraph (c) is even broader, and paragraph (d) refers to an objective that might never previously have been discussed by Parliament or even disclosed to an admiring public. We are enabling a Minister, by fiat, to introduce regulations of that kind.

There are well-intentioned Ministers on the Front Bench such as the noble Lord, Lord Young. We have known each other for almost 60 years. I would no doubt be very content to let him have those powers. But then I ask myself whether I would want to give those powers to Mr McDonnell or Jeremy Corbyn. I suspect that nobody in your Lordships’ House tonight would wish to do that—certainly not the noble Lord, Lord Adonis, very sensible fellow that he is. I suspect that we would be paving the way to the elective dictatorship of which my father wrote and spoke.

If we are to do these things we do them by primary legislation, surely not by secondary legislation over which we have precious little control and when I know that the Whips will be very active with noble Lords who have never read the legislation. I do not know whether the noble and learned Lord will press his amendment, but, if he does, he will have my support.

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[Lord Judge]

My Lords, it is quite alarming to hear, because it is entirely true, that this is not an unusual power. It is lamentable that we have reached the stage where we are habituated to Henry VIII clauses in every piece of legislation. We never have a piece of legislation without a Henry VIII clause. That is not something of which we should be proud. It happens because we allow the legislation through—we pass it. We should think more carefully before we do so.

I am grateful to everyone who has taken part in the debate, and to the Minister. Perhaps I might say how much I have enjoyed working with him to try to improve the Bill. I have appreciated very much his courtesy and the co-operation of the Bill team. Given the situation we are now in, I beg leave to withdraw the amendment.

Amendment 98 withdrawn.

Sanctions and Anti-Money Laundering Bill [HL]

Lord Judge Excerpts

Report: 1st sitting: House of Lords
Monday 15th January 2018 Lords Chamber

[Lord Pannick (CB)]

My Lords, Amendment 1, which is in my name and that of the noble and learned Lord, Lord Judge, the noble Baroness, Lady Northover, and the noble Lord, Lord Collins of Highbury, is provoked by the very wide discretion which Clause 1 confers on Ministers to make regulations when they think it “appropriate” to do so for defined purposes. It seeks to impose a degree of rigour and control by substituting a test of “reasonable need”.

I am very pleased that the Minister has tabled his own Amendment 9, to which I have added my name. That amendment recognises that apart from those cases where the United Kingdom has a UN or other international obligation, the Minister can make regulations only where he considers there are good reasons to do so and that the imposition of sanctions is a reasonable course of action to take. Amendment 9 would also require the Minister to lay a report before Parliament explaining his reasoning when making the regulations. I am satisfied that this will impose a real discipline on the Minister, backed up of course by the prospect of judicial review, for which I was delighted to see over the weekend that the Government have a new enthusiasm.

The distinction between the requirements in Amendment 9 and a test of reasonable need is more theoretical than practical. The noble and learned Lord, Lord Judge, and I have had a number of productive meetings with the Minister and the Bill team since Committee on this and other issues. I thank them for their patience, courtesy and flexibility in responding to the issues that we raised in Committee and that are the subject of amendments today and on Wednesday.

This group includes Amendment 3 in the name of the noble Lord, Lord Collins of Highbury, to which I have added my name. It identifies further purposes for which sanctions regulations may be made, particularly—and I think importantly—to promote respect for human rights, democracy, the rule of law and good governance. I hope the Minister can be persuaded by the noble Lord, Lord Collins, to accept Amendment 3. There is a reasonable need for it, or at the very least it is appropriate to include that provision in the Bill, if only for its symbolic value that these admirable goals should be recognised in the Bill. To do so would of course not commit Ministers to making any regulations; it would simply give them the power to do so. I look forward to hearing the noble Lord, Lord Collins, explaining the case for Amendment 3. If he decides to test the opinion of the House, he will have my support. I beg to move.

[Lord Judge (CB)]

My Lords, the noble Lord, Lord Pannick, speaks for me. I am afraid that if I spoke too much today I might have a party political conference problem, so I shall say no more.

[Baroness Northover (LD)]

My Lords, I support what the noble Lord, Lord Pannick, said. I welcome, as did he, the moves from the Government in this part of the Bill. I shall speak to Amendments 2 and 5 in my name as well as supporting Amendment 3 in the name of the noble Lord, Lord Collins, myself and the noble Lord, Lord Pannick. Our criticism of the Bill in Committee focused on the way in which Ministers were being granted wide powers unchecked by Parliament. The Minister has made moves to address this at certain points in the Bill but we still do not think that the sanctions for foreign-policy objectives are tightly drawn enough. We made the case in Committee as to how this might be abused, and we still seek reassurance. An amendment that would undoubtedly help is Amendment 3 on the definition of the purpose of sanctions, which has been very effectively summarised by the noble Lord, Lord Pannick. We feel this very strongly, and it is surprising that such a definition is not already in the Bill. In our view it is also important that the purpose should include preventing the violation of sanctions regulations, and that is the other amendment here. As the noble Lord, Lord Pannick, has indicated, if the noble Lord, Lord Collins, chooses to vote, we will support him.

Sanctions and Anti-Money Laundering Bill [HL]

Lord Judge Excerpts

Report stage (Hansard - continued): House of Lords
Monday 15th January 2018 Lords Chamber

Moved by

[Lord Judge]

45: Clause 16, page 14, line 13, leave out paragraph (a)

[Lord Judge (CB)]

My Lords, I am going to add to the trumpet sounds of praise for the Minister and thank him for everything he has done so far. However, I do not want to damage his ministerial career further by not taking him on. I am taking him on in relation to Clause 16.

In the days when there were no regulations but the King thought that he would like to rule the country by proclamation and to create criminal offences by proclamation, the response of Parliament was that it is,

“the indubitable right of the people of this kingdom not to be made subject to any punishment … other than such as are ordained by the common laws of this land, or the statutes made by their common consent in parliament”.

The King sought to be able to make criminal offences by proclamation and Parliament told him he could not. That is a principle to which we should have adhered. We have not. I am not going to try to turn back the last 25 years of history but this is quite a significant moment. Parliament was prepared to tell the King—who could have sent you off to prison and did send people to the Tower when he disagreed with them—that this would not do. My submission to the House is that this current provision simply will not do. I acknowledge that the clause is improved to some extent by the proposed government amendments but it provides a vivid example of what has become unacceptable, for this very simple reason: it vests vast powers in a Minister of the Crown.

In discussions with the Minister, I have been able to understand that he has clearly conveyed his wish to ensure that where sanctions of whatever kind are currently and lawfully in existence, particularly those which emanate from our membership of the EU, they should continue. I agree with him: the EU and our current relationship with it is why we have sanctions against Syria and Russia. I do not for one moment wish to diminish the possibility of those continuing. They should not lapse just because we would cease to have any international obligation with the EU, but I simply do not understand why we cannot make provision to deal with such a situation. I am not trying to row back. I accept the need for sanctions to be continued against Russia and Syria, and against whomsoever we have sanctions, but it should be capable of amendment. This provision, I agree, would do that but it would also do much more—and my concern is with the much more, which is quite unnecessary.

The starting point is that the entire system envisaged in the Bill is about government by regulation. There is in truth no primary legislation here; all of it is regulations. I call it a bonanza of regulations and your Lordships might use any word you like to describe it, but that is what the Bill consists of. In addition, we have two perfectly good provisions for dealing with UN sanctions and sanctions based on our obligations under international law, under treaty. Then we have a whole lot of new regulations to deal with the prevention of terrorism, the interests of national security, the interests of international peace and security, the furtherance of a foreign policy objective of the Government of the United Kingdom and, as a result of today’s debate, four more provisions. All those are domestic issues. The issues relating to UN resolutions or sanctions, EU resolutions and treaty obligations are fine, so far as they go. But as to the rest of it, it is all domestic.

We will end up with a situation in which provision will be made by regulation to enable the Minister to decide what offences should be created to deal with what are in truth domestic matters, which it is unlikely would not be at least matters of controversy. Foreign policy is a matter of controversy. What is “national security”? How should counterterrorism work? These are all issues which we have to grapple with on a daily basis. We would end up with a Minister, by regulations based on regulations, being able to create an offence which would send you to prison, presumably on conviction, for 10 years. That is a major provision.

I can deal with this briefly; I have said my piece more than once in this House on it. This clause is devolving enormous powers. I have no hesitation or worry about it devolving enormous powers to this Minister but we do not know who the next Minister will be, or the Minister 10 or 20 years from now. The Bill will continue in force for 10 or 20 years; I suspect the hope is that it will continue indefinitely. In the wrong hands, these powers are not merely enormous but dangerous. There is no need for them. So my objection to this clause, and the provisions I am addressing, is simply this: we are allowing an accretion of alarming power to a Minister of the Crown—to the Executive. That power in relation to the matters I am raising, which is to say not the United Nations issue or the international treaty issue but all the other issues, should not be dealt with by regulation. I beg to move.

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

I must advise the House that if this amendment is agreed to, I cannot call Amendment 46 and that, in the same grouping, if Amendment 47 is agreed to I cannot call Amendments 48 or 49 due to pre-emption.

--- Later in debate ---

With those reassurances, qualifications, checks and balances, and in the light of the government amendments that have been tabled, I hope the noble and learned Lord is minded to withdraw his amendment.

[Lord Judge]

My Lords, I appreciate the way in which the Minister has put these matters. He has expressed his sympathy for our concerns and he understands them. We are talking about a basic, simple constitutional position. We do not for one moment think that sanctions should not exist, or that there should be some kind of break in the ability to enforce against breaches of sanctions where they currently exist—that is not the purpose of the amendment. Nor is it beyond parliamentary counsel to find a way of making sensible provision to meet the Government’s requirements. If it does, the Government will bring this matter back to the House on Third Reading or take it to the Commons. As it is, we are being asked to sanction a provision that is constitutionally dangerous.

Therefore, although I am willing—assuming that the House agrees with my view—to meet the Minister and indeed parliamentary counsel at any time to discuss how the issues should be addressed, I propose to invite the view of the House on this amendment. I add that I have been addressing the House on the basis that Amendments 45 and 47 run together. That has plainly been the understanding of everyone who has participated in the debate, but for the moment we are concerned only with Amendment 45. If it is carried, I will move Amendment 47 formally. I should like to test the opinion of the House.

--- Later in debate ---

Moved by

[Lord Judge]

47: Clause 16, page 14, line 17, leave out subsection (4)