Rule of Law

Debate between Lord Keen of Elie and Lord Judge

Thursday 10th September 2020 Lords Chamber

[Lord Keen of Elie (Con) [V]]

My Lords, first of all, the Minister presenting this Bill has given a certificate of compatibility pursuant to the Human Rights Act; that has been done.

As regards the further issues raised, it will be for Parliament to determine whether, at the end of the day, it decides to pass this legislation. That is a matter for Parliament, and the Ministers have presented the Bill to Parliament for those purposes.

[Lord Judge (CB) [V]]

My Lords, given that, by the Executive’s own assertion, they propose to break the law in a specific and limited way, are they to be exempted from the basic principle that the rule of law, which includes adherence to international treaty obligations, binds all of us? If so, where will this violation of constitutional principle end?

[Lord Keen of Elie (Con) [V]]

As I previously indicated, my Lords, there are exceptional circumstances that arise, from time to time, when we find ourselves with a tension between our domestic legal regime and our obligations at the level of international law. There are also occasions when we find some conflict between different international law obligations. We adhere to the rule of law, but we understand the need to try to resolve tensions that may emerge if, at the end of the day, we do not have a post-transition agreement and determinations from the Joint Committee.

Vagrancy Act 1824

Debate between Lord Keen of Elie and Lord Judge

Thursday 23rd April 2020 Lords Chamber

[Lord Keen of Elie]

My Lords, I am grateful to my noble friend for his further question. The review, which was led largely by the Ministry of Housing, Communities and Local Government, has essentially been completed. However, in light of the work being done in respect of Covid, it has not yet been reviewed by Ministers, although we will seek to bring it forward as soon as possible. I would acknowledge that the language of the 1824 Act is archaic, albeit that the meaning is clear. I should reiterate that we have no desire to criminalise those who are simply sleeping rough, but the provisions of the Act also apply in respect of, for example, begging and persistent begging. We have consulted with all the interested parties, including local authorities and the police, in order to determine a way forward.

[Lord Judge (CB)]

If Section 4 of the Vagrancy Act, which was enacted after repeated harvest failures created an army of the dispossessed, were presented to us today, beyond the archaic language to which the noble Lord, Lord Young, has already referred, we should reject it as being vague and uncertain, and arguably tarnished with an improper reverse burden of proof. If we would not enact it, why should it remain on the statute book for a minute longer?

[Lord Keen of Elie]

My Lords, I do not accept that the essentials of the provisions of Section 4 would not be worthy of enactment today. The provisions are of assistance to local authorities and indeed to the police. I understand that, quite often, the police are able to suggest the possibility of prosecution under Section 4 as a means to persuade those who are homeless and those who are begging to seek assistance either from drug and alcohol hubs or by seeking to claim benefits. It therefore remains of use in the view of some authorities.

Sentencing (Pre-consolidation Amendments) Bill [HL]

Debate between Lord Keen of Elie and Lord Judge

3rd reading & 3rd reading (Hansard) & 3rd reading (Hansard): House of Lords
Tuesday 3rd March 2020 Lords Chamber

[The Advocate-General for Scotland (Lord Keen of Elie)]

My Lords, I take the opportunity to pay tribute to the Law Commission and parliamentary counsel for their work on this Bill, not least for their continuous efforts to ensure that it accurately reflects recent changes in the law. I wish to record the Government’s thanks to the noble Lords who served on the Bill’s Special Public Bill Committee in the last Parliament under the chairmanship of the noble and learned Lord, Lord Judge. I am sure that I speak for all members of the committee in thanking those who provided evidence on the Bill, but in particular Professor David Ormerod, who has done so much work in this field. We hope that the Bill marks the first step in cutting through the complexity of the law in this area, and I look forward to the imminent introduction of the sentencing code Bill.

[Lord Judge (CB)]

Perhaps I may say a brief word in acknowledging the debts of gratitude to which the Minister has referred. The Bill, when it is enacted, will vastly improve the administration of criminal justice. It is long overdue and thank goodness it is now nearly there.

Sentencing (Pre-consolidation Amendments) Bill [HL]

Debate between Lord Keen of Elie and Lord Judge

Tuesday 23rd July 2019 Other Business

[Lord Judge (CB)]

My Lords, before we get to Clause 5, I wonder whether this might be a convenient moment, this being a special Public Bill Committee, for me to say something about the way in which the committee has worked and the issues that we have resolved, so that they are a matter of public record given the unusual circumstances of the Bill.

The committee has met and taken oral evidence from Professor David Ormerod of the Law Commission and from the noble and learned Lord, Lord Keen of Elie, the Minister responsible for the Bill. We also received evidence from the Criminal Appeal Office and the Prison Reform Trust, and from Professor Andrew Ashworth and Professor Nicola Padfield, both of whom are acknowledged experts in sentencing law. We received supplementary written evidence from Professor Ormerod and the noble and learned Lord, Lord Keen, which addressed the issues raised during the committee’s oral hearing. The committee agreed that this written evidence should be accepted and indeed published. Beyond that, the committee had before it the sentencing code summary, the detailed sentencing code report and the sentencing code itself—all very substantial documents. This enabled us to examine the wide breadth of the consultation programme in which the Law Commission had engaged, and the responses to that process.

It is beyond controversy that the law relating to the sentencing powers of the courts is in desperate need of clarification. The adoption of this sentencing code is an imperative. The Bill, however, is mechanical. It does not, and is not intended to, address sentencing policy problems, nor is it a Bill intended to reform the law of sentencing. For example, one current policy question is whether there are any circumstances, and if so what, in which a short prison sentence may be imposed, or whether such sentences should be abolished. I suspect that if the members of the committee—some of whom are here today—had sought to address this single question, we might have been discussing and receiving evidence about it for many months.

There are many other outstanding questions, such as the continued detention, well beyond the normal sentencing tariff, of those ordered to be subject to imprisonment for public protection. There is a whole raft of policy questions. Therefore, it is important to emphasise not only that the Bill is not intended to address complex policy questions but that, if the Bill is enacted and the sentencing code comes into force, the policy questions will remain open for further public discussion and parliamentary decision.

Beyond the policy question, we also recognise that the consolidation provisions in the Bill do not cover every single aspect of every single sentencing enactment that might apply to conviction of a particular crime in particular circumstances by a particular offender. For example, the complexity of the confiscation provisions vested in the court after conviction is notorious. That issue is addressed in a separate further proposal.

Without wanting to suggest that they are not difficult, at the other end, there are also what may be described as the fiddly bits of a sentencing decision; for example, where and in what circumstances jurisdiction to make a protection order would arise. I am speaking for myself, although I think I speak for the committee also, when I say that I am satisfied that it would be contrary to the public interest to postpone the implementation of the code in its present form—it is a massive project, which has taken literally several years to bring before Parliament—until after the remaining questions have been addressed. At the moment, the code provides opportunity to improve and make the sentencing process much more straightforward and less prone to error; it is urgently needed.

Again, I emphasise that the enactment of the Bill and the coming into force of the sentencing code should not be seen as the end of the process but as a very large and important step in it. We were invited by Professor Padfield to treat the Bill as an interim measure; she made a powerful argument. As and when the further consolidation proposals are received from the Law Commission, I urge that the Government of the day see it as a matter of obligation to bring them to Parliament, not “as soon as practicable”—those are slightly weasel words—but forthwith. It is not a difficult process and we have not found it particularly time-consuming in Parliament, though the reading has been substantial.

The issue with which every member of the committee, and indeed many of those who responded to the consultation, was concerned can be summarised in a single word: “retrospectivity”, or perhaps in two words, “no retrospectivity”. If I may, I shall adopt Professor Ashworth’s identification of the principle at common law and embodied in Article 7 of the European convention: the defendant should not be subjected to a heavier penalty than the one that was applicable at the time the offence was committed. It is a simple and clear definition. The particular importance of applying this principle to this code and enactment is that, over the years, Parliament has steadily increased the maximum penalties for a number of offences including, for example, indecent assault. Many cases of sexual assault are now prosecuted and tried as historical cases, going back very many years. For such an offence committed in, say, 1988 or 1998, the sentence available then—not that available now—binds and limits the sentencing court.

We are satisfied that the retrospectivity issue has been properly addressed in what has been described as the “clean sweep” approach, in particular Clause 1(4). Beyond that, we did not find a single observation in the evidence which suggested or implied that there could be any doubt that the retrospectivity issue had been properly addressed. Yet further beyond that, my personal view is that if a sentence which infringed this principle were imposed, it would, at common law and under Article 7 of the convention, be corrected as an error. But importantly, the statute leaves the question beyond doubt.

Some concern was expressed in the committee about the possible extent of the regulation-making powers granted to the Secretary of State, in particular whether the Bill granted powers that would enable him or her, by regulation, to alter sentencing levels—especially, of course, to increase them. As Governments of different hues have developed what I describe as an unfortunate tendency, although that is rather polite, to try to create criminal offences punishable with imprisonment by the exercise of regulation-making powers, this concern obviously required careful analysis. I suspect that any court faced with any alteration to sentencing levels said to be derived from powers created in the Bill would be extremely dubious about construing the Bill in this way. Beyond that, however, in his recent written evidence the Minister pointed out that the regulation-making power in Clause 2(2) applies only to any potential amendments that facilitate, or are otherwise desirable in connection with, the consolidation process; and that Clause 5(3)(a) restricts the amending power to pre-consolidation amendments. In my view, the regulation-making powers in the Bill, which are concerned exclusively with the consolidation of legislative provisions currently in force, is not open to potential misuse by the Secretary of State.

We were also troubled by a problem over which we have no control and which I wish to highlight. It has nothing to do with the statutory provisions with which we are concerned, but with the danger that, unless great care is taken with the enactment of criminal legislation, particularly sentencing provisions—and, if I may say so, taken with infinitely greater care than in past enactments, which has caused all the problems—the code itself will be out of date within a major criminal justice statute or two. Given the rate at which such statutes are enacted, that would not be very long—possibly before the consolidating process of what I have described as the fiddly bits has been completed.

This code is pre-eminently a provision to which the words “living instrument”—my words—should be applied. It must be capable of adaptation and development as sentencing provisions and, in due course, policies change. The whole purpose of the code would otherwise have been lost. It would have been built, in the word used by one member during our discussions, on dust. That makes it imperative that when sentencing provisions are introduced, amended or repealed, express provision should be made in that primary legislation for the incorporation of those new provisions, as I shall now call them, into the sentencing code. We, and more importantly the Law Commission, given the extraordinary burden it has carried for several years now, will otherwise have been wasting our time.

Before long, sentencing courts will be struggling with the difficult problem of deciding what the sentence should be. If I may pause there, I think many judges would say to the Minister that, with the possible exception of deciding where children should live when there are problems at home, a decision about what sentence should be imposed on an individual is one of the most difficult problems that any judge can face anyway. They would be faced not only with the difficult problem of deciding what the sentence should be but with the ludicrous task of examining complicated legislation to ascertain what the court’s lawful sentencing powers are.

I have said all that I wish to say on this beyond thanking our team, led by John Turner, very much for their help and their immediate response to a Bill that has come through the House very rapidly and needed close attention from all those involved behind the scenes.

[Lord Keen of Elie]

My Lords, I want to make one or two observations for the record in response to the comments made by the noble and learned Lord as chairman of the committee.

Clearly, as was observed, the clean sweep mechanism is subject to exceptions to ensure that no offender is subject to a greater maximum penalty than was available or subject to a minimum or mandatory sentence that did not apply at the time that the offence was committed. Of course, a clean sweep allows for a different sentencing disposal than would have been imposed had the code not been enacted. The guideline judgment in R and H v UK in 2011 sets out that sentencing exercises should be conducted on the basis of current sentencing law by measured reference to any definitive and relevant sentencing guidelines, and that while sentences must be limited to the maximum available at the time of the offence, it would be unrealistic to try to assess what the sentence would have been had the case been heard years, or even decades, earlier.

My only additional comment is that the clean sweep will extend the duty of the courts to follow sentencing guidelines, thereby removing the previous duty to have regard to sentencing guidelines in relation to offences committed before 6 April 2010. Accordingly, the code will extend the current duty to follow sentencing guidelines to all convictions that follow the enactment of the code.

Courts and Tribunals (Online Procedure) Bill [HL]

Debate between Lord Keen of Elie and Lord Judge

Report stage (Hansard): House of Lords
Monday 24th June 2019 Lords Chamber

[Lord Keen of Elie]

My Lords, the amendments in this group deal with the issue of concurrence. Again, I thank noble Lords for their contributions on this topic at Second Reading and in Committee, and for their continued engagement on the matter outside the Chamber. We listened to the points made in these discussions and sought to address some of the concerns raised. I have tabled a range of amendments which I hope will provide suitable assurances for noble Lords. The amendments in this group deal specifically with the matter of concurrence in Clauses 2, 3 and 12. That is because I am now persuaded that the question of which proceedings fall under the auspices of the new Online Procedure Rule Committee should be a matter for agreement between the Lord Chancellor and the Lord Chief Justice. Therefore, these amendments make the necessary changes to Clauses 2, 3 and 12 to provide for this.

The amendment to Clause 12 also allows the Lord Chief Justice to delegate agreement to other members of the senior judiciary, which is purely a matter of practicality. I hope the amendments will be welcomed by noble Lords. They provide an important safeguard for the operation of the new committee. In particular, they address the concerns expressed by noble Lords at previous stages that the future expansion of the role of the committee should be subject to appropriate scrutiny and that in such matters the right relationship with the Lord Chief Justice and Senior President of Tribunals is one of concurrence. On reflection, this is a position which the Government now accept, and in these circumstances, I beg to move.

[Lord Judge]

My Lords, the Government have come a long way and I am now addressing not only the amendments put forward by the Government but Amendments 22 and 23. I begin by thanking the noble and learned Lord, Lord Keen, for kindly listening to what we had to say and for acting on it, and the Bill team for helping him get the wording right. It means that the Government have come a long way towards understanding the implications of the constitutional changes in 2005, which changed the relationship between the Lord Chancellor and the Lord Chief Justice and placed on the Lord Chief Justice responsibilities that once attached to the Lord Chancellor. The Lord Chief Justice now has personal responsibility for the arrangements by which litigation is conducted. To the extent that this relates to tribunals, the Senior President of Tribunals has the same responsibility. I welcome Amendment 12 and government Amendments 6, 8, 25, 26, 27 and 28, and shall welcome government Amendments 10 and 15 in the next group.

The difference between being consulted and requiring concurrence needs no emphasis. If you are consulted, what you say can be totally disregarded; concurrence means what it says. Despite all that I have said, I am sad to say that although the noble and learned Lord, Lord Keen, has taken his car a long way down the road of logic and constitutional sense, his vehicle has run out of fuel and failed to reach its logical conclusion.

The position can be summarised very briefly. Amendments 22 and 23 to Clauses 8 and 9, respectively, concern two clauses which, as drafted, give exceptionally wide powers to a Minister. Indeed, Clauses 8 and 9, I am afraid, are in the sadly standard form of donating, handing over or retaining power to the Executive which we now find in just about every Bill that comes before us.

The first six clauses, whatever other comments may be made about them, recognise that the government amendments in group three address the constitutional responsibilities. That is fine. Clause 7(3) gives the Minister an unconditional power to,

“allow or disallow Online Procedure Rules made by the Committee”,

provided that written reasons are given for doing so. In other words, he does not have to consult the Lord Chief Justice if he thinks that the rules put forward are not sensible or appropriate, or that they would cost too much money. That prevents the committee going off on a frolic of its own—or, indeed, putting forward rules with the concurrence of the Lord Chief Justice which, for example, involve unreasonable expenditure. That is very sensible. I do not cavil at the idea incorporated in Clause 7(3) and the individual responsibility of the Lord Chancellor in that regard.

However, taken together, Clauses 8 and 9 unbalance the relationship. The Lord Chief Justice falls out of Clause 8 altogether—he does not get a mention. He is reduced or left to the consultation process in Clause 9, which is entirely inconsistent with the provisions in the Bill that the Government amended to allow for concurrence rather than consultation. Under Clause 8, the Minister has power to direct that the rule committee shall include provisions to achieve the Minister’s purposes and that, when such a direction is given, the committee has no option but to comply within a reasonable time. It is that stark; the power is vested directly in the Minister.

It is one thing—and perfectly sensible—to protect the Lord Chancellor from some wild or absurd rule committee proposal. It is, with great respect, quite another for him to have an unconstrained power to give it directions: in effect, to tell it what to do. The Minister may, by Clause 9(2), also don the tarnished crown of King Henry VIII, who is not, of course, King Henry VIII to the noble and learned Lord, Lord Keen; I am not sure what he is to Scottish history—probably nothing. Would it not be wonderful to have a history in which Henry VIII counted for nothing? It would certainly be a convenience to this House if he did not count for very much.

So, if he wishes, the Minister may don this tarnished crown if he considers it necessary or desirable to facilitate the making of the rules. On closer examination, if you put these two clauses together, this arguably means that the Minister may overrule the very rules which were made with the concurrence of the Lord Chief Justice or his predecessor.

The Bill should be logical. The Lord Chief Justice’s concurrence to the exercise of these powers is elementary. The Bill and the government amendments now recognise it; the Minister has his safeguards in Clause 7(3); Amendments 22 and 23 make similar safeguards available to the Lord Chief Justice. I invite the Minister to refuel his car and keep right on to the end of the road.

Judicial Pensions and Fee-Paid Judges’ Pension Schemes (Amendment) Regulations 2019

Debate between Lord Keen of Elie and Lord Judge

Wednesday 20th February 2019 Lords Chamber

[Lord Judge (CB)]

My Lords, I had not intended to speak but perhaps I should. I declare an interest as having been Lord Chief Justice when the shocking new arrangements for the judicial pension were imposed on the judiciary unilaterally by the Government. There was consultation—of the kind that enables the Government to do exactly what they like—but it was imposed on the judiciary. There was a unilateral change to the pension arrangements under which a significant proportion of the judiciary were working if they were below a certain age and had not given so many years’ service. The basis on which they joined the judiciary, which was clearly understood, was changed. That represented a betrayal. It greatly damaged confidence in the whole idea of a successful practitioner—a barrister or solicitor—seeking judicial appointment. If the Government could unilaterally change the arrangements, there was no point. We still suffer the consequences of that. There is nothing wrong with the present measure we are considering, but the consequences of what happened between 2010 and 2014 are with us still.

If I may answer the point made by the noble Lord, Lord Adonis, about the arrangements that are currently before and have been before the courts, the judges trying those cases are not those who will have been affected by these dramatic changes. The various matters raised by the noble Lord, Lord Beith, and the noble Baroness, Lady Chakrabarti, are well known. There is no point using this opportunity to stand on a hobby-horse to repeat them, but they do not go away. That is an issue the ministry has to grapple with as soon as practicable.

[Lord Keen of Elie]

My Lords, I am obliged for the contributions that have been made. I note the points made by the noble Lord, Lord Beith, and the noble and learned Lord, Lord Judge, and I acknowledge that pension issues have created very real issues about recruitment, particularly to the High Court Bench. That is something of which we are conscious and have in mind and under consideration going forward. The whole question of the terms and conditions on which we seek to appoint the judiciary is critical, and I acknowledge the need to ensure that we maintain a judiciary whose expertise and integrity are regarded as pre-eminent. The noble Lord, Lord Beith, touched on the value—if you can put it that way—of legal services in an export sense. It is estimated to be in the region of £4.5 billion, so it is a significant matter in that context alone; but of course, it has a much wider resonance and importance than that.

As the noble and learned Lord, Lord Judge, observed, those hearing this matter in the Supreme Court are not impacted by the transitional provisions we are concerned with in the McCloud case and the related Miller case, which is still to be heard. In any event, I remind the noble Lord, Lord Adonis, of the judicial oath and the confidence maintained in the integrity of our judiciary, which is entirely justified.

Regarding the potential cost of the McCloud decision, it is a matter of speculation. It does not refer just to judicial pensions; it is also relevant to firefighters.

Civil Liability Bill [HL]

Debate between Lord Keen of Elie and Lord Judge

Report stage (Hansard): House of Lords
Tuesday 12th June 2018 Lords Chamber

[Lord Judge (CB)]

My Lords, as it has not emerged that the amendment is the property of the Opposition, perhaps I may add a few words in support of Amendment 47.

Lord Justice Jackson’s report was a remarkable document. It exhaustively analysed the entire structure of our civil justice system. It would not have supported the present Government’s position. I would love to read out the Justice Committee’s report—but, if I did, we would be here awfully late and no one would want to hear it. However, can we briefly recognise that the Justice Committee report is not adverse to the Government’s proposal but deals a series of hammer blows, each one individually worth noting?

“We recommend the Government should not increase the small claims limit to … £5,000”.


Bang.

“There is no policy justification for including vulnerable road users within the reforms proposed”.


Bang.

“We recommend that they be excluded from any higher small claims limit that is imposed on other RTA PI claims”.


Bang.

“We are deeply unimpressed by the inability of the Ministry of Justice to quantify”.


Bang.

And so it goes on. This is not one of those reports with recommendations that obscure their meaning, and perhaps the Minister will consider that as an important feature of this debate.

[Lord Keen of Elie]

My Lords, I will not begin with a bang but I will address the points that have been raised.

I begin by pointing out, with great respect, that the noble Baroness, Lady Hayter, may not be entirely correct in some of the propositions she advanced. She said that the £1,000 limit had been with us since 1999. It has been with us since 1991. The small claims limit in respect of claims other than personal injury and housing claims is now £10,000 and operates effectively and efficiently at that level. That has to be borne in mind as well.

The noble Baroness spoke with her consumer hat on and referred to the small guy. Reference was made to the worker with limited ability to deal with his claim. The noble Lord, Lord Bassam, referred to workers being pitched out on their own with no help and alluded to a number of examples given by Thompsons solicitors—I shall come back to that in a moment—of where they were perplexed by the way in which claims were dealt with by insurers. The noble Lord, Lord Monks, said rather modestly that Thompsons solicitors were one of the largest firms of trade union solicitors in the country. They must be the largest by quite a long way. They are well established and have been for many years. Why do we refer to them as trade union solicitors in this context? It is because one of the great benefits of union membership for workers is the availability to them of legal advice and assistance when they require it in respect of a claim, particularly one arising in the course of their employment—which is why legal aid is not available in those circumstances. So, far from the little guy, the worker, being pitched out on their own without any help, they almost invariably have the assistance of probably the largest and most established firm of trade union and personal injury solicitors in the country.

I do not decry that—it is an immediate and obvious benefit—but the disbenefit of increasing the small claims limit is that the extent to which the union will recover its legal costs will be more limited, and that will have an impact on trade unions. I understand that and one has to take it into account in the overall scheme of these provisions.

Rape Trials

Debate between Lord Keen of Elie and Lord Judge

Wednesday 6th June 2018 Lords Chamber

[Lord Keen of Elie]

My Lords, we must always aspire to full disclosure in circumstances when material could otherwise undermine a prosecution or assist the defence to a criminal charge. No one would doubt that for a moment. As I understand it, there has been no complaint to date about a lack of resources as regards the police and the CPS. I go back to the point I made earlier, that these obligations with regard to disclosure extend beyond the police and the Crown Prosecution Service to the defence as well. I am not in the business of giving guarantees, but we will look clearly, unambiguously and carefully at the findings of the Attorney-General’s investigation in the summer and will respond appropriately to its conclusions.

[Lord Judge (CB)]

How can the obligations imposed on the defence by the 1996 Act excuse or explain failures by the prosecution to disclose relevant material?

[Lord Keen of Elie]

They do not necessarily explain such a situation. However, in circumstances where the defence actually obtempers its obligation to provide a defence statement, it is possible to identify further areas of inquiry for the disclosure of material. For example, if the defence statement discloses that that there was a pre-existing relationship between a complainer and the defendant, it will be possible to make further inquiries to ensure that material that might otherwise have gone unnoticed is disclosed to the defence. Therefore these matters are connected.

Worboys Case and the Parole Board

Debate between Lord Keen of Elie and Lord Judge

Wednesday 28th March 2018 Lords Chamber

[Lord Keen of Elie]

I am not able to answer that question but the point the noble Lord makes is entirely accurate because, generally speaking, the issues for the Parole Board to consider are, first, whether it should release into an open prison environment and, thereafter, whether there should be release on licence.

[Lord Judge (CB)]

My Lords, what is the proposal to improve the arrangements by which the victims in this case are provided legal aid?

[Lord Keen of Elie]

There are no immediate proposals in that regard. As the noble and learned Lord is aware, the LASPO provisions are currently under review.

European Union (Withdrawal) Bill

Debate between Lord Keen of Elie and Lord Judge

Committee: 3rd sitting (Hansard): House of Lords
Wednesday 28th February 2018 Lords Chamber

[Lord Keen of Elie]

My Lords—

[Lord Judge (CB)]

May I just have a few moments?

[Lord Judge]

Well, noble Lords may not want to hear what I am going to say. I have had a sense developing over the last 40 minutes that we are well ahead of ourselves. We should be discussing these issues when we come to decide the very important question of whether retained EU law is to be treated as primary legislation, subordinate legislation or a bit of both. We will then have a debate on Clause 7, which entirely addresses this issue of subordinate legislation and Henry VIII powers, and we will come again to it when we debate Clause 9.

I just make two points. First, no Parliament can bind its successor. We do not know what a future Parliament will think about all these various matters raised in proposed new subsection (6) in Amendment 21; they are very important issues, but we cannot bind anybody. Secondly, in relation to the exercise of any Henry VIII powers—and there will of course have to be careful thought given to it—I am fascinated by the proposal in proposed new subsection (2) in Amendment 21 that a schedule should list,

“technical provisions in retained EU law that may be amended by subordinate legislation”.

When we come to look at Henry VIII powers, do we not have to take a rather more revolutionary look at them? Should we not be saying to ourselves that the Government of the day—whatever Government it may happen to be—should, at the very least, in the proposal for subordinate legislation, set out which terms of primary legislation are being repealed, amended or affected by the secondary legislation? That is some food for thought.

[Lord Keen of Elie]

My Lords, as may have been observed during the passage of the Investigatory Powers Bill, the Government are always listening. I am most obliged to the noble and learned Lord, Lord Judge, for his observations, because they go to the very heart of the point I want to make. We are, in a sense, having the wrong debate in the wrong place, but I am also relieved to hear from my friend the noble Lord, Lord Pannick, that he does not understand paragraph 3 of Schedule 8, because I was rather concerned about his earlier interpretation of it under reference to the opinion of Pushpinder Saini, QC—I will come back to that in a moment, if I may.

The areas that these amendments seek to protect, such as employment rights and environmental standards, are issues that are important to every Government, and in particular this Government. Of course, we are anxious to ensure that rights and standards such as these are maintained—indeed, where possible, increased —after we leave the EU. It might be observed that UK protections in many of these areas—for example, parental leave—in fact go beyond the level of protection provided for in EU law, so let us keep this in context.

It is important, however, that we are able to address deficiencies to ensure that the protection of these rights and the standards that they reflect continue to function effectively and that the Government are able to amend legislation in line with our history of leading in these areas of protection. When people voted to bring back power to our Parliament and to bring back control of our laws, they did not vote to put them in the deep freeze for any number of years. We have to see this in context: we are talking about thousands of regulations—somewhere in the order of 12,000 regulations —which were of course not the subject of parliamentary scrutiny; and we are talking about thousands of SIs implementing directives, which were of course not the subject of parliamentary scrutiny, which have come into our law and will be part of our law on exit day, because they will form part of the area of retained EU law.

The noble Baroness, in her amendment, proposes a schedule of “technical provisions” in an area where we are dealing with enormous quantities of law, by way of regulation and by way of implemented directives. The first point that would arise is: where is the line to be drawn between what is a technical and a non-technical provision? The noble and learned Lord, Lord Falconer, alluded to this as one of the three criteria he had in mind. You have to be able to define these criteria, otherwise you immediately run into a further issue. That is in itself a very real challenge: how would we define or class a technical issue in the context of seeking to update retained EU law?

Perhaps the more important point, however, is that much of what has been said here anticipates the issues that we will debate in the context of Clause 5, on the classification of retained EU law, and, more particularly, Clause 7, in relation to the exercise of certain powers by government in dealing with the body of retained EU law. Again, it is important to try to put this in context. We have had references to the suggestion that the Government are taking untrammelled, unlimited powers to do virtually anything with the statute book. Let us not, even if we think we have a good case, overstate it because, in doing so, we rather spoil our argument. That is not at all what the Government seek to do. Clause 7 is concerned with how we deal with deficiencies arising from our withdrawal from the EU. It is therefore concerned, as it says, about the making of regulations which are,

“appropriate to prevent, remedy or mitigate—

(a) any failure of retained EU law to operate effectively”.

We are not talking about wholesale policy changes to our employment or environment laws, our standards for consumers or anything of that kind. The noble Lord, Lord Pannick, referred to—

CPS: Disclosure of Evidence

Debate between Lord Keen of Elie and Lord Judge

Monday 18th December 2017 Lords Chamber

[Lord Keen of Elie]

I am obliged to my noble friend. It is of course important that the defence has the opportunity and the means to consider what requests should be made of the prosecution in the context of disclosure. Indeed, in the context of the case alluded to earlier, that point will be addressed.

[Lord Judge (CB)]

Could the review also look into this simple question? It is reported that it took 14 months for this young man to be charged, which means that he was on bail uncharged for 14 months. What on earth is the reason for that?

[Lord Keen of Elie]

My Lords, I am not able to determine why the charge took as long as it did in that case. I appreciate that investigations take longer in some cases than they do in others, but I cannot—