European Union (Withdrawal) (No. 5) Bill

Debate between Lord Judge and Lord Faulks

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

[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.

Non-Contentious Probate (Fees) Order 2018

Debate between Lord Judge and Lord Faulks

Tuesday 18th December 2018 Lords Chamber

[Lord Judge (CB)]

My Lords, I want to say just a little since the noble Lord, Lord Pannick, has dealt with the law and I happen to agree with him. As your Lordships all know, I frequently disagreed with him in a previous existence. Whenever I did, he appealed to a higher court and was always right. This time I agree with him because I happen to agree with him. I will not repeat the reasons.

I will take a slightly different stance. The debate we have had, assuming that the noble Lord, Lord Pannick, is right—as I say, I agree with him—is whether section whatever it was of some 235 sections produced the power the Lord Chancellor now seeks to exercise. If it did, the problem is not with this statutory instrument, which we are all attacking and which the noble Lord, Lord Marks, has indicted ferociously and accurately, but with the primary legislation, which, I am sorry to say, we probably did not analyse with sufficient care. I was not here at the time, so I do not bear any personal responsibility.

I am sorry to say this, but we were vesting in statute after statute vast powers in the Executive. We do it and we let it happen. We cannot complain if the Executive, having been vested with these powers, choose to exercise them. We vest powers in not just this Executive, but the next one, the one after and the one after that. That seems an aspect arising from the present order that we really should not overlook. We should be more alert when powers are being vested in the Executive to do almost anything by secondary legislation.

That has got that off my chest. Now I declare an interest. Because of the office I once held, I am perfectly well aware of the fact that our civil courts system is in a shambles. It needs funding. It needs much more funding than this funding would provide. If the Lord Chancellor has the powers—as I said, I agree with the noble Lord, Lord Pannick, that he has—this seems a sensible use of them to achieve a very important societal purpose.

[Lord Faulks (Con)]

My Lords, the 2014 Act was passed by Parliament when there was a coalition Government in power. I had the privilege of bringing in enhanced fees that, it has been suggested, should be viewed in rather a favourable light compared with the probate fees that are the subject of this statutory instrument. I certainly do not remember that being the response at the time, although the arguments—namely cross-subsidy—were the same. Indeed, I specifically remember making the point that it was always an option whether you chose to litigate. That has been raised as a favourable point in support of this statutory instrument, where obviously there is no question of choice.

The reality is that both these provisions were there to subsidise the much-needed court system. The noble Lord, Lord Marks, will remember that the coalition Government came to power facing an economic crisis and that a number of cuts had to be made, particularly to the Ministry of Justice budget, which the Liberal Democrats went along with happily, as did the Conservative Party, as a result of which the courts have been feeling the strain and are continuing to in a way that a number of noble Lords have pointed out. This is an attempt to at least alleviate some of that strain.

My noble friend Lord Hunt mentioned the case for cross-subsidisation. I respectfully suggest that he is right. He mentioned a number of areas. I could mention more: non-molestation orders, occupation orders, forced marriage protection orders and female genital mutilation protection orders. There are all sorts of tribunals involving family immigration and asylum that do not pay for themselves but need cross-subsidisation.

Crude though it may be, this order will be a valuable addition to our beleaguered legal system, about which I am sure the noble Lord, Lord Marks, and all in your Lordships’ House share concern. The Government have responded to the initial outcry, if I might describe it as such, about the amounts involved. They have been lowered. I respectfully suggest that the Minister has made out the case.