European Union: Negotiations (European Union Committee Report)

Lord Kerr of Kinlochard Excerpts

Monday 16th March 2020 Lords Chamber

[Lord Kerr of Kinlochard]

I bow to the noble Lord’s experience in financial matters. I usually find the usual channels as baffling as the Sibyl of Cumae, but on this occasion we have to congratulate them on arranging such a prompt debate on the Select Committee report. We must also congratulate the noble Earl, Lord Kinnoull, on producing such an excellent, analytical, factual report—a good trigger for the first test of what we mean by Section 29 of the Withdrawal Act. I declare an interest: I sit on his committee, which is why I suck up to him.

As he spelled out, the report brings out the striking contrast between the detailed negotiating mandate put forward by the 27 and the terse assertions of the Government’s White Paper. Of course, these are only opening positions but the gap is quite wide, particularly in the four areas where it seems to have arisen because our Government’s position has changed.

On architecture, we no longer believe in an overriding institutional framework, which is what we agreed to in the joint political declaration of 19 October. Instead, we now want only a free trade agreement

“supported by a range of other international agreements, all with their own appropriate and precedented governance arrangements”—

all, presumably, with different governance arrangements.

The EU mandate sticks with what the political declaration said, and still wants “an overarching institutional framework”. I suspect that this reflects the EU’s unhappy experience with Switzerland and the unsatisfactory multiplicity of separate EU-Swiss agreements. We were one of many member states to agree that the Swiss experiment should never be repeated. I expect the others still feel the same.

Secondly, on the level playing field, as the noble Lord, Lord Hannay, reminded us, we agreed in October that:

“Given the Union and the UK’s geographic proximity and economic interdependence, the future relationship must ensure open and fair competition, encompassing robust commitment to a level playing field”.


That is still in the EU mandate, but it seems that we have changed our minds on that too. We now say that we will not agree to any obligations for our laws to be aligned with the EU’s. That could have consequences. In October, we agreed that the “precise nature of” level playing field

“commitments should be commensurate with the scope and depth of the future relationship”.

That works both ways. If we will not provide convincing assurances on competition and the other topics, any free trade agreement is likely to be rather shallow and narrow in scope.

Thirdly, in October we wanted “ambitious, close and lasting co-operation” on foreign policy, sanctions, security and defence. The EU mandate now covers the same ground in broadly the same terms, but our White Paper is completely silent on the subject. I note that, according to the press, we have rejected the Commission’s idea that one of the negotiating groups working to Mr Frost and Monsieur Barnier should cover external relations topics. I am not clear why our position has changed. Perhaps the Minister could tell us.

Finally, the White Paper robustly rejects the idea of any role for the Court of Justice. Mr Gove, giving evidence last Wednesday to Mr Benn’s committee in the other place, spelled out that this extended to any organisation—say, REACH, the chemicals regulator or the European arrest warrant—that was under CJEU jurisdiction. This, too, would seem to indicate a preference for narrowing the scope of any eventual agreement.

I draw two observations from those four facts. First, I am not sure that our continental friends will fully understand that the election has changed everything, as the Prime Minister, Mr Gove and Mr Frost have maintained in their recent speeches. October’s joint political declaration is not, of course, a legally binding text, as the noble Baroness, Lady Noakes, reminded us—I was delighted to hear something I could agree with—but it is an international agreement. It is not legally binding—it is not part of the treaty—but it was an agreement that emerged from a negotiation involving mutual compromise.

I do not think it follows from Mr Johnson’s election victory that his 27 colleagues will accept that the balance of the declaration can now somehow be changed, with the UK cherry-picking the bits we like best and dropping the other bits, and their having to acquiesce. The thesis seems to be that the political situation in the UK is now different, so we can just pick and choose the bits we like. Perhaps the foreigners may accept that; I am not sure.

Secondly, on the other hand, it must be true that by aiming low and going for a narrow agreement and a more distant relationship with continental Europe, we increase the chances of getting something agreed by the end of the year. If it does not extend beyond trade in goods, as seems plausible on the basis of the opening position, it probably will not need national ratification in 27 capitals with the delays that inevitably entails. I thought it rash of Mr Johnson to rule out any extension to the negotiation period—perhaps coronavirus will now change his mind—but I am not one of the those who argue that it is impossible to secure a deal by December. I am certain that, if the Prime Minister sticks to his timetable and to the brusque autarkic assertions of his White Paper, the best we can get will be a narrow deal, a shallow deal and a very bad deal—but if that is what we want, I think it is possible.

However, there is a wild card and I turn to it now. It is Northern Ireland and the 131 pages of the protocol on Ireland and Northern Ireland in the withdrawal treaty, which has been in force since 31 January. In Brussels and among the 27, one today detects a growing suspicion that we are not terribly keen to implement the protocol. In Brussels, that is understandably taken rather seriously. The protocol is part of the treaty, and it is legally binding. Were we seen to be resiling from it, the consequences would be grave. I would certainly expect the EU to break off negotiations on the further treaty. I would assume that the nightmare of a hard border in Ireland would be back and the Good Friday agreement in grave danger. The noble Lord, Lord Hain, has drawn attention to the United States repercussions of that.

Of course, it seems wild and outlandish to suggest that this country would ever resile from a treaty obligation, an obligation we have only just taken on, on the last day of January. I hope that the suspicions of Brussels are misplaced, but we are currently not trusted over there, as the noble Baroness, Lady Ludford, explained. The Minister has made clear more than once in the House that he believes that the Government will fulfil their legal obligations, and I believe him, but there is a new Attorney-General, who may be more malleable than the previous one.

Why is trust evaporating in Brussels? The issue is the frontier in the Irish Sea and the suspicions spring from what the Government say and from what they do or do not do. First, let us look at the words. Mr Johnson and his new Secretary of State still seem in denial about what the protocol means for trade between Northern Ireland and Great Britain. Under Article 5 of the protocol from 1 January, we will be obliged to collect on the EU’s behalf EU customs duties on goods moving from Great Britain to Northern Ireland, except for those goods on which the UK and EU agree there is no risk of them moving into the Republic. We agreed that; that is what the treaty says. In Article 6 of the protocol we also agreed that the EU customs code and hence EU export checks will apply to goods moving from Northern Ireland to Great Britain, although with controls at ports and airports minimised to the extent possible. We agreed that; that is what the treaty says. In Article 12 we agreed to give the EU the right to monitor and supervise these two-way frontier arrangements. We agreed that. It is in the treaty.

As long ago as 21 October, the then Secretary of State for Exiting the EU, Mr Barclay, confirmed to the Select Committee chaired by my noble friend Lord Kinnoull that there would be two-way checks, but the Prime Minister continues to deny it and, unlike his predecessor, Mr Smith, so now does Mr Brandon Lewis, the new Secretary of State for Northern Ireland. In this context, the White Paper’s flat rejection of any role for CJEU jurisdiction in this country starts to look, in Brussels’ eyes, very sinister. Seventy-five pages of the protocol consist of long lists of single market laws that will apply in Northern Ireland and will be under CJEU jurisdiction.

Did the drafters of the White Paper just forget about Northern Ireland? Or, as some in Brussels fear, are the Government hoping to forget about the protocol? Giving evidence to Mr Benn’s committee in the other place last week, Mr Gove refused to confirm the description of the Irish Sea frontier, which the Government themselves set out in their explanatory document on the EU (Withdrawal Agreement) Bill, published on 21 October. He brushed questions aside, saying that they were a matter for the Joint Committee set up under the protocol, which will, I understand, finally meet at the end of this month. But the Joint Committee’s task, as spelled out in the treaty, is to agree how to implement the provisions of the protocol. It cannot change them—and we have signed up to them.

So much for the words—it is the deeds that worry me most. The Select Committee, visiting Belfast on 25 February, could find no evidence of any central or devolved government action to prepare to implement the protocol. The business community was equally unsighted, and suggested that with five months gone and only eight to go, it would be a “herculean” task to get workable frontier arrangements up and running. I think “herculean” is Hibernian for “impossible”.

We were told that no one from HMRC, which will be responsible for the two-way customs border in the Irish Sea, had, as of 25 February, given the business community of Northern Ireland any indication of what to expect or how best to prepare for it. We were told that 2,500 trucks cross the Irish Sea within the UK every day—850,000 a year—and that for GB-NI movements, 45 questions would probably have to be asked about every consignment. We were told that for NI-GB movements there might be 31 questions, if the precedent of the EU’s Ukrainian-Polish frontier were followed.

I find all this acutely disturbing—indeed, shocking. I can think of few greater infringements of national sovereignty than a foreign-supervised frontier inside our United Kingdom. I am not surprised that Mrs May—and Mr Johnson, before he got to No. 10—ruled it out as something no UK Prime Minister could possibly accept. But he did accept it: it is in an international treaty, and we do not break treaties.

The Government in Dublin are well aware that we are dragging our feet. So, too, is the Commission, whose members have been in Belfast to find out. No wonder there are suspicions in Brussels. If we walk away from the treaty we signed, there will not be another to sign. The worst of all possible worlds would be to leave the people of Northern Ireland in limbo and in the dark, puzzled by the words being uttered and totally unbriefed on the necessary deeds.

I would be grateful if the Minister could confirm that it is not our Government’s intention to seek to reopen or reinterpret Articles 5, 6 and 12 of the Irish protocol, and tell us when the people of Northern Ireland will be informed—ideally, consulted—about the preparations they should make for their resultant new trade frontier with the rest of this kingdom.

[Lord Lamont of Lerwick (Con)]

I do not disagree with everything the noble Lord has said in his formidable speech, but is there not one scenario that he has not covered? If there is a free trade agreement, will not a large part of the protocol fade into it?

[Lord Kerr of Kinlochard]

Yes, I think that is true. The checks would then become much less onerous—but they would still be required. The EU would still be required to collect data on its exports, which means that there would still be checks on Northern Ireland-GB trade, and in the other direction there would still have to be VAT checks, phytosanitary checks and rules of origin checks, even if the customs checks were reduced to near zero.

The noble Lord is right: it is perfectly true that, if there is a comprehensive free trade agreement, checks will be less onerous, but they will still have to happen in both directions. I support both the Motions on the Order Paper. I also support the amendment in the name of the noble Baroness, Lady Hayter. The Minister will note how supportive I am being today.

EU: Future Relationship

Lord Kerr of Kinlochard Excerpts

Thursday 27th February 2020 Lords Chamber

[Lord True]

My Lords, the Government do not anticipate that these discussions will fail.

[Lord Kerr of Kinlochard (CB)]

My Lords, I welcome the noble Lord, Lord True, to his new responsibilities. I look forward to many a True statement. He emphasised the importance of our understanding that the world has changed and that we are in a brave new world that is all fresh. What I am worried about is whether the foreigners will see it that way. I am worried that the foreigners will still believe that the joint commitment in the political declaration to a level playing field perhaps still holds. I am worried that the foreigners—the 27—noting that the Secretary of State for Northern Ireland and the Prime Minister are in denial about what the Northern Ireland protocol says and that no work is being done in Belfast or in London on implementing it, may feel that “pacta sunt servanda” is no longer the governing principle here. Will the noble Lord assure me that we still believe that commitments should be honoured? If that is his view, will he please raise it with the Prime Minister?

[Lord True]

My Lords, I take particular note of what the noble Lord says. I thank him for his kind remarks. I have the highest respect for his great service to this country. I remember watching from the sidelines in the early 1990s his extraordinary achievements. I think I said at one stage in these discussions that he was the Duns Scotus, the great scholastic who understood everything. I hope he will not regret having to deal with a Dunce Anglius here at the Dispatch Box who has a lot to learn. Look, the negotiations are just yet to begin. People will lay out their positions next week. Again, the noble Lord invites me to run ahead of the position. Each side’s position will be staked out by the appropriate people as the negotiations commence.

EEA Nationals (Indefinite Leave to Remain) Bill [HL]

Lord Kerr of Kinlochard Excerpts

2nd reading (Hansard): House of Lords
Friday 19th July 2019 Lords Chamber

[Lord Kerr of Kinlochard (CB)]

My Lords, the only obvious defect in the Bill—it is a glaring defect and not the fault of the noble Lord, Lord Oates—is that it is so late. I am very glad that it is resuscitated, but as the noble Lord, Lord Cormack, says, the Bill does what we should have done three years ago. It was a glaring negotiating error not to have unilaterally and voluntarily done exactly this three years ago; a negotiating error almost as serious as that of not drafting and putting forward a framework for the future relationship before we triggered Article 50. We should have done this before we triggered Article 50. Had this been on the statute book, the whole atmosphere at the start of the negotiation would have been completely different. Because it was not, we made life uncertain and in some ways difficult for 6% of the population of these islands. It was an extraordinarily inhumane thing to have done. Because it is not on the statute book, we have acted dishonourably.

The noble Lord, Lord Oates, is quite right to recall the statement by Mr Johnson and Mr Gove of 1 June 2016, before the referendum, when they promised an automatic system with no question of application. By not having this on the statute book, we have gravely damaged the interest of 1.3 million British citizens who live in continental Europe. Their position is still uncertain. Their legitimate expectations were overturned by the results of a referendum in which most of them had no vote, because the Government had not fulfilled their manifesto commitment to change the eligibility for the franchise of citizens resident abroad. Their position is still in doubt despite Mr Costa’s admirable February amendment in the other place. It is now very difficult to get this dossier out of the withdrawal agreement. I suspect that the withdrawal agreement is dead, but this dossier is lurking in the middle of it. If and when—let us say if—we leave the European Union in a no-deal Brexit, the EU has made it clear that the three dossiers in the withdrawal agreement are where future negotiations will start, not with trade. That means that there will be an inhibition on member states acting unilaterally to respond reciprocally to what we should have done three years ago and could do now with the Bill. If we are interested in setting at rest the minds of 1.3 million of our fellow citizens living in the EEA, we should pass the Bill as quickly as possible.

I agree with the noble Lord, Lord Oates, about the defects in the system that the Home Office is now operating. The principal defect is that it is not automatic; it is an application system. We have the rigmarole of pre-settled status, settled status and indefinite right to remain, or the decision to go instead for British nationality. These are complicated questions being tackled by people some of whom are not necessarily internet savvy, some of whom do not necessarily have access to legal advice or the right linguistic skills. To take one example, in the event of a no-deal Brexit, if only 15% of the children from other EU member states who are now resident in this country fail to operate this system and regularise their position by the end of next year, 100,000 children living in this country will be in a Windrush situation. They will be here with irregular status and potentially—possibly actually—criminalised because they are here. They will be vulnerable to hostile environment policies and deportation if they go back. The noble Lord mentioned Windrush. It is an exact parallel, except there are an awful lot more people this time.

If you want to get rid of that risk, you need a legal backstop—to use a new word—underpinning the Home Office system. I am not saying that the Home Office system should be torn up, but the right to citizenship should be underlined, as is set out in this Bill. For those who cannot work the application system, there should be a safety net lurking round. We will need something like that at the end of next year if we fall out of the EU with no deal, because public opinion in this country will be just as shocked at the way we are treating some of these people as it was to discover how we had treated Windrush people.

In addition, as a more straightforward argument to advance, if we put this on the statute book, the likelihood that similarly generous reciprocal treatment will be handed out to the 1.3 million British citizens living in continental Europe will rise very steeply.

I agree with those such as the noble Lord, Lord Cormack, who say that now is Mr Johnson’s moment. He said what he said. He made a promise three years ago on 1 June 2016. Will he carry it out? Some foreign friends ask me to define Mr Johnson’s political philosophy; I find this quite difficult to do. It is quite easy to explain what Thatcherism meant. It is quite easy to explain what new Labour meant. It is very difficult to define “Johnsonism”.

I look forward with keen interest to seeing the evidence, but one streak in Johnsonism is probably completely genuine—I think he is libertarian on issues such as this, and naturally likely to want to do what he said he would do three years ago. I very much hope that, whatever the Government tell us today, in a very few weeks they will tell us that they strongly support this Bill and would like to see it on the statute book as soon as possible. I certainly support it.

Making Tax Digital for VAT (Economic Affairs Committee Report)

Lord Kerr of Kinlochard Excerpts

Monday 29th April 2019 Lords Chamber

[Lord Kerr of Kinlochard (CB)]

My Lords, I gravely miss the noble Lord, Lord Bates, but I understand why someone might want to walk a very long way to avoid having to answer this debate. It is a pleasure to see the noble Lord, Lord Young of Cookham, in his place. I first bumped into the noble Lord 58 years ago in Oxford High Street—or rather, he bumped into me. He was on a bicycle, an enormously tall one, and he was of course moving very fast. I could have been seriously injured but I was not, and he was so nice about it that I think I ended up apologising to him.

I remind him of this incident particularly because, as I am sure many noble Lords will remember, of the way the noble Lord answered questions a couple of years ago at the Dispatch Box. He dutifully read out an appalling piece of unimaginative boilerplate defending an indefensibly insensitive misuse of Executive power, but I cannot remember what it was about. When the House objected and protested, was the noble Lord taken aback? Not at all. He said that he had been reflecting over the weekend on how, if he was still a constituency MP, he would have advised a constituent complaining about being subjected to the treatment he had just described. He concluded that there was a way around the bureaucratic intransigence exposed by the question. He then spelt out for us the way around that he would have advised his constituent to take. The officials in the Box could hardly complain because his first answer was the one that they had drafted for him. His second answer was his own: sympathetic and human. It is that side of him that I wish to appeal to today. He will by now have guessed that I want to talk about the loan charge.

I was not a member of the Finance Bill sub-committee but I am a member of the Select Committee, so I am one of those who have received numerous distressing and disturbing letters from the public about the way in which HMRC is handling some of these historical cases. Clearly, the few cases summarised in appendix 5 of the report are merely the tip of a considerable iceberg. In evidence, HMRC suggested that about 50,000 cases were being pursued. I have been shocked by the Government’s casual and peremptory dismissal in their response of some of the points made in the report. I do not believe that the noble Lord, Lord Young of Cookham, would have approved such a response, and I will put three questions to him.

Question one concerns retrospection and how to define it. Paragraph 76 of the report states:

“The loan charge is … retrospective in its effect”.


Some of the cases described in the appendix concern taxes now deemed due in respect of earnings in 2004-07, 2005-07, 2005-10 and 2010-14. As I understand it, in none of these cases was there any warning or challenge while the individuals in question were using the scheme in question. Years later, they face demands and talk of debt collectors and county court summonses.

I see in today’s Financial Times the rather disturbing news that HMRC spent £26 million last year on private debt collectors, up from £6 million in 2014. In this context, I find that a rather sinister number. The committee thought this was unfair and recommended against retrospective action in respect of years past where taxpayers had all along disclosed their participation in a scheme now found to have created a loan charge. Page 4 of the government response rejects this and maintains that the charge is “not retrospective” because:

“It does not change the tax position of any previous year”.


Surely that is, at best, disingenuous and casuistic. It is true only in the sense that the catastrophic cumulative charge resulting from retrospection accrues and must be paid 100% in the current year—but it has accrued because of actions in previous tax years, those that would otherwise have been said to be closed. Would the Minister have approved the definition of retrospection on page 4 of the government response? My strong hunch is that he would not. If he would not, will he ask his Treasury colleague, the Financial Secretary Mr Stride, to reconsider it?

My second question concerns the committee’s recommendation in paragraph 80 that,

“HMRC urgently reviews all loan charge cases where the only remaining consideration is the individual’s ability to pay”.

The government response, on page 5 this time, rejects this too, chillingly adding that HMRC considers bankrupting individuals only as a “last resort”. That is reassuring. I read in the response that only since 2009 have the promoters of the relevant schemes—some of which had been running for 10 years by then—been obliged to inform users of their schemes that HMRC approval is not certain. Only in November 2017—18 years in—did HMRC start writing systematically to the 50,000 individuals who might be affected by the loan charge. I understand the reason for that—the legal position will have become clear only when the Supreme Court reached its judgment in 2017—but surely HMRC should all along have been warning those who were signalling on their tax returns that they were using such schemes that HMRC clearance was not certain and that there was a legal uncertainty here.

I worry that we seem to be pursuing those least able to pay. As the noble Baroness, Lady Noakes, said, they are the little people—and it is a great and rare pleasure to be able to say I agree with everything the noble Baroness said. The Minister will recall Leona Helmsley, the New York hotelier who famously said, “We don’t pay taxes; taxes are for the little people”. It earned her the title, Queen of Mean—somehow, I do not see the noble Lord, Lord Young of Cookham, as the King of Mean. We are not talking about Amazon, Starbucks, Google or Facebook, or about rich people with tax advisers. We are talking about people like the social worker whose case the noble Lord, Lord Forsyth of Drumlean, mentioned.

We know that the Minister is humane. We know he went to a decent university. We know he will be familiar with act 4, scene 1 in the “Merchant of Venice”. My question is this. Does he agree that it is right to show “no mercy” to individuals like the social worker mentioned by the noble Lord, Lord Forsyth? Does he not agree with the noble Lord, Lord Robathan, the noble Baroness, Lady Noakes, and me that some blame must be ascribed to the Inland Revenue and HMRC for lying low and saying nothing for so long, not putting people on notice? Is the Minister with Portia or with Shylock?

My third question concerns the relationship between this Parliament and the Executive. The Minister responsible for HMRC is the Financial Secretary to the Treasury. In my Treasury days, he was a feisty, powerfully brilliant young individual who had absolutely no truck with Civil Service boilerplates and people like me, and who enjoyed nothing better than a good argument with a parliamentary committee. He is now the noble Lord, Lord Lawson of Blaby. Does the Minister believe that the current Financial Secretary, Mr Stride, is right to refuse to meet the Select Committee? Does he think that the then Nigel Lawson would have done so? Would he have done so?

I recall from my Treasury days the sensible rule that Ministers do not have access to any individual’s tax affairs. But I also recall that, when there is prima facie evidence that a class of taxpayers—maybe in this case 50,000 strong—is being unfairly treated and seriously disadvantaged, with very serious consequences in some cases, the responsible Minister surely needs to put that right or take responsibility for it. Hiding behind officials just will not do.

I look forward to the Minister’s answers to my three questions—and I hope they are indeed his answers.

--- Later in debate ---

[Lord Young of Cookham]

I was not aware. Of course, I understand the sensitivities of the issue and will raise the matter with HMRC.

HMRC has introduced simplified payment arrangements for those who approached it to settle by 5 April this year so that individuals will not have to pay the loan charge. Regardless of whether the individual decided to settle their taxes or whether the loan charge applies, for those who need more time to pay there is no maximum period for payment.

Resources for HMRC were raised during the debate. The Government have always provided HMRC with the resources that it needs. At the 2015 spending review, they invested £1.3 billion to transform HMRC to make it quicker and easier to deal with. In addition, since 2010, the Government have invested £2 billion in HMRC to tackle avoidance and evasion.

My noble friend Lord Forsyth raised the right of appeal on accelerated payment notices and follower notices. As my noble friend knows, the rules do not affect a taxpayer’s right to appeal against an HMRC decision or assessment concerning their tax liability. If the taxpayer successfully appeals the actual liability, the follower notice penalties will no longer be due. Again, Parliament granted HMRC these powers to discourage tax avoidance.

My noble friend also asked about retrospection. I think that I have dealt with that, if not wholly to his satisfaction. It is a new charge on DR loan balances outstanding on 5 April. It does not change the tax position of any previous year or the outcome of any open compliance checks.

My noble friend asked what the position was on the powers review. We agree that HMRC has to balance tax collection with important taxpayer safeguards. The powers review was a major project coming alongside the merger of HMRC and Customs and Excise. There has not been a similar fundamental change to justify another such review, but I say in response to my noble friend that we keep the tax system under review and will consider options for reviewing and updating the tax administration framework to ensure that it is effective in modern tax administration.

A number of noble Lords spoke about low-paid employees and social workers being affected by the loan charge. HMRC’s analysis shows that around 3% of those individuals who used a disguised remuneration loan scheme worked in medical services and teaching.

My noble friend Lord Tugendhat raised the issue of naming. Again, Parliament has legislated to allow taxpayers to be named in limited circumstances. These are prescribed explicitly in legislation. HMRC places importance on taxpayer confidentiality, and no one can be named simply for disagreeing with it. I hope that HMRC never engages in what my noble friend called “innuendo”.

In view of the number of interventions, I may claim a bit of injury time on the question about HMRC inaction on loan charges. The Government’s view, as I think I have already said, is that these schemes never worked. Compliance activity has been taken ever since the schemes were first used, including the use of thousands of inquiries into scheme users, successful litigation and agreement of settlements. The loan charge was introduced to draw a line under all outstanding DR loans, but HMRC has always warned against the use of DR schemes, with the first spotlight being published in 2009. Many scheme users did not disclose details of their scheme use, or disclosed partial information which did not enable compliance—this is in response to an issue raised by the noble and learned Lord, Lord Judge. Where DOTAS numbers were provided, HMRC routinely opened inquiries, and it will look carefully at cases where individuals provided evidence that they fully and properly disclosed their use of a DOTAS at the time and where HMRC closed an inquiry with that evidence. However, it does not believe that there are many cases where that has happened.

I am conscious that I have not said anything about Making Tax Digital, so I will say a few final words about that report. We want every individual and business to develop the skills and confidence to seize the opportunities of digital technology. In a world where businesses are already banking, paying bills and shopping online, it is important that the tax system keeps pace. Making Tax Digital gives UK businesses more control over their finances and allows them to manage their tax more easily so that they can focus on what they do best—innovating, expanding and creating jobs. The Enterprise Research Centre found in 2018 that web-based accounting software delivered productivity increases for micro-businesses of 11.8%. One should set that against the costs mentioned by my noble friend Lord Forsyth and the noble Baroness, Lady Burt.

I was asked what the position was on small businesses unable to go digital because of the absence of broadband. Businesses that are unable to go digital will not be forced so to do. If it is not reasonably practical for a business to join MTD for reasons of age, disability or remoteness of location—which can affect broadband connection—it may qualify for an exemption.

I am deeply conscious that I have not done justice to the many serious questions that have been raised, and I am already over my time. In conclusion, I thank noble Lords for their contributions to this stimulating debate—

[Lord Kerr of Kinlochard]

I am quite sure that the House will be very willing to extend considerable injury time to the Minister if he would be prepared to tell us not just what the boilerplate says but what he actually thinks.

Policing and Crime Bill

Lord Kerr of Kinlochard Excerpts

Report: 2nd sitting (Hansard): House of Lords
Wednesday 7th December 2016 Lords Chamber

[The Minister of State, Home Office (Baroness Williams of Trafford) (Con)]

My Lords, I do not doubt the sincerity of the intentions behind this amendment. The new clause comes directly from the experiences of the Hillsborough families, and anyone who has heard of their long fight for justice cannot fail to be moved. I entirely accept, however, that the issue raised by the amendment is of general application.

As noble Lords will be aware from the debate in Committee, the Government’s position on this amendment is that we should wait for the report commissioned from Bishop James Jones on the experiences of the Hillsborough families. In commissioning the work, the then Home Secretary asked Bishop Jones,

“to ensure that the full perspective of those most affected by the Hillsborough disaster is not lost”.—[Official Report, Commons, 27/4/16; col. 1436.]

The families will have numerous experiences, including views on legal representation, and this will be reflected in Bishop Jones’s report, which he aims to publish next spring.

I entirely accept noble Lords’ points about the coroner, and we will bring them to the attention of Bishop Jones, but I reiterate that it is appropriate that the Government have the opportunity to consider his conclusions and recommendations fully before deciding what action to take. It would therefore be premature to proceed with the amendment at this stage.

It must be right that any consideration of this amendment takes account of the financial implications. The cost of the legal representation for the 103 Hillsborough families at the fresh inquests amounted to £63.6 million. Clearly, the Hillsborough inquests were an exceptional case, but they provide at least an indication of the level of financial commitment such an amendment could imply. While it is the case that the Hillsborough families received public funding for their legal costs at the fresh inquest, it was a bespoke scheme, instituted due to the exceptional nature of the events that took place 27 years ago.

Recognising the exceptional nature of the Hillsborough inquests, it is also right that we look at other data. We cannot say for certain in how many inquests the police are named as an interested person. However, we know from the Independent Police Complaints Commission report Deaths During or Following Police Contact: Statistics for England and Wales 2015/16 that in the last financial year, 200 persons died following contact with the police. All of those deaths would have been subject to an inquest. Of course, the financial implications of this amendment are but one of the matters noble Lords will wish to take into consideration, but we cannot be blind to the impact on the public purse.

However, I come back to my core objection to this amendment: that this is neither the time nor the place to pursue this matter. As I have said, the Government are firmly of the view that we should wait for Bishop Jones’s report and then determine, in the light of that, the most appropriate way forward. I hope the noble Lord, Lord Rosser, will accept that this is the proper way to proceed and agree—

[Lord Kerr of Kinlochard (CB)]

Before the Minister sits down, I would like to be quite clear. Is she rejecting the wise advice from the noble and learned Lord, Lord Mackay of Clashfern? Is she saying that this is not a point of principle but a point of public expenditure?

[Baroness Williams of Trafford]

I am not disagreeing with anything that noble Lords have said. I have said that, in the light of the review by Bishop Jones, this is not the time to press the amendment. I hope, on that note, that the noble Lord will withdraw his amendment.

--- Later in debate ---

[Lord Kerr of Kinlochard (CB)]

The noble Lord speaks with passion and from great knowledge of this matter. I defer to that. I am nervous about intervening because we are in the presence of a former captain of the Olympic team, the noble Lord, Lord Campbell of Pittenweem. I support the intention behind the amendment, but I wonder whether something has not gone wrong in the drafting. The problem arises because the last word in subsection (2)(a) of the proposed new clause is “or”, which means the language in paragraphs (a) and (b) is not cumulative, but alternative.

Proposed new subsection (2)(a) defines the offence of taking a prohibited substance. Proposed new subsection (2)(b) never mentions prohibited substances. Its scope looks astonishingly wide. It says that if an individual,

“has been banned or suspended from participation in any sporting activity, or has been or is a member of any organisation which has been banned or suspended from participation in any sporting activity anywhere in the world, at any time”,

he is committing an offence. Change sports and assume we are talking about football. A footballer who is red-carded is banned for playing for a few matches. In the terms of proposed new subsection (2)(b)(ii) he would be required for the rest of his career to present at least every fortnight a certificate saying he was free of any banned substance. Proposed new subsection (2)(b) does not talk about drugs at all. It says that if a club or sporting organisation was banned for corruption, its financial affairs, a betting offence or any kind of offence, that club, all its players and all those who had played for it in the past would be required to obtain this certificate every two weeks. The same would apply to individuals banned for reasons that had nothing to do with drugs.

I support the intention behind the amendment, but I do not think the wording is quite right.

[Lord Addington (LD)]

My Lords, I too support the noble Lord’s intention. I have a less subtle criticism of the wording. It refers to “prestige”, “promotion” and “relegation”. The noble Lord has stated very clearly that he is going for the elite. However, promotion and relegation run the whole way through all our sport. I am sure that the noble Lord was not worrying about the eastern counties division north rugby, shall we say, but it would be caught by this at the moment.

It should not be down to a Back-Bencher, even one as distinguished as the noble Lord, Lord Moynihan, to be doing this. It should be taken on by the Government. There is a will to do this correctly with the Government. When the Minister replies to the noble Lord, I hope that she will let us know what the Government are doing. That is what is required. We can thank the noble Lord for opening this up. It is down to the Government to take coherent action to make sure this is happening, I hope, with other nations. As the noble Lord pointed out, they are taking their own action. If we can act together, we will be able to do more.

I applaud what the noble Lord is trying to do. I say for a fact that he has probably made far fewer mistakes than I would if I had tried to do this. Indeed, that is a fairly safe bet. I think he has missed on this, but to open up the argument and get into it he has done us a service. We have to make sure we take some action soon. Whatever else has gone before has not worked. “If it ain’t broke, don’t fix it” clearly does not apply here.

European Union Referendum: Young Voters

Lord Kerr of Kinlochard Excerpts

Thursday 26th May 2016 Lords Chamber

[Lord Kerr of Kinlochard (CB)]

Having heard what the noble Baroness has said, it pains me to have to admit that Cambridge can sometimes get things right. However, I disagree strongly with her and her party on referenda. I firmly believe that Mrs Thatcher was right: referenda are the devices of dictators and demagogues. However, we are where we are. This is a very important debate and I congratulate the noble Lord, Lord Roberts, in allowing us to have it.

I am antediluvian when it comes to IT. I belong to the quill pen and forked stick school of messaging and I am not a Facebook user. However, I know that a very large number of young people are. According to the Financial Times, people in their 20s,

“make up 28 per cent of the platform’s UK users”.

I do not have a number, but it is enormous. I am indebted to Ms Lisa Pollack in this week’s Financial Times, who tells me that for the general election and recent local elections, Facebook posted notifications reminding people to register to vote:

“This made the network one of the largest referrers to the registration website, according to the Cabinet Office”.

But she also says that:

“There is not yet a plan to do similar for the … EU referendum”.

I do not know whether the people at Facebook listen to our debate or whether they need to be motivated by the Electoral Commission, and I do not know whether the Electoral Commission needs to be motivated by the Minister. But given that the Minister is, like the noble Lord, Lord Roberts, young, lively and a techno-freak, he will know that all these stages could be gone through electronically within the next 10 minutes before he responds to the debate.

I really hope that an effort will be made to have done by Facebook for the referendum what was apparently done for the general and local elections, because the worst possible outcome to this referendum would be a close result either way on a very low turnout. That is what we must really try to avoid.

Constitutional Convention Bill [HL]

Lord Kerr of Kinlochard Excerpts

Friday 11th December 2015 Lords Chamber

[Lord Forsyth of Drumlean (Con)]

My Lords, I did speak at Second Reading. The main point I made was that I thought the Bill was far too ambitious. I am very disappointed to see that the terms of reference in Clause 2 remain pretty well as they were at Second Reading, although I thought the noble Lord said that he would consider the fact that there might be quite a lot to do.

The Economic Affairs Committee of this House spent four months looking at the single issue of the financial consequences of devolution in the United Kingdom and produced an excellent report, which has had quite an impact in Scotland and beyond in making people aware that it is necessary to agree and know the fiscal framework before you set in place further structures of devolution. I do not quite know how it would be possible for this constitutional convention not only to consider,

“the devolution of legislative and fiscal competence to and within Scotland, England, Wales and Northern Ireland”,

but deal with,

“the devolution of legislative and fiscal competence to local authorities within the United Kingdom”,

and,

“the reform of the electoral system”,

and,

“the reform of the House of Lords”,

which we have spent more than 100 years discussing. Furthermore, I looked for the kitchen sink, and the kitchen sink is there, described as,

“constitutional matters to be considered in further conventions, and … procedures to govern the consideration and implementation of any future constitutional reforms”.

The convention has to do all this within a year. It is ridiculous.

Who will do this? The convention will be composed of representatives from,

“registered political parties within the United Kingdom”.

I think there are about 600 registered political parties in the United Kingdom, a point that was made very eloquently by my noble friend in winding up at Second Reading, but that is what we are still left with in Clause 4, along with representatives of “local authorities” and,

“the nations and regions of the United Kingdom”.

In addition:

“At least 50% of the members of the convention must not be employed in a role which can reasonably be considered to be political”.

First, finding such people might be difficult. Secondly, there is the experience that we have had with the Smith commission. One has only to read the Committee debate so far on the Scotland Bill to see the mess you get into when you have a group of people working out what they would like to happen without advice and without the ability to translate that into legislation.

It is also quite an impertinence to suggest that issues relating to reform of the House of Lords are matters that should be decided outside this House and outside Parliament. The noble Lord chuckles, but it would be extremely difficult for people to be educated on and understand the procedures of this House and achieve everything within a year. Although I very strongly support the idea of a constitutional convention with the limited purpose of sorting out the mess that we have brought ourselves into because of piecemeal constitutional reform, we have already determined what we think about House of Lords reform. We spent a large slice of the last Parliament discussing it. As for the noble Lord, Lord Grocott, I have always thought of him as a radical and not a conservative, but a radical with common sense, intellect and a practical frame of mind.

It just seems to me that the noble Lord, Lord Purvis, is putting forward a Bill that will discredit the idea of having a constitutional convention and make it very easy for those of us who support having one to be brushed aside by the Government on the basis that what is being proposed in the Bill is unrealistic. I very much hope that Clause 2 does not stand part of the Bill as drafted. If it does, the Bill will have to be consigned to the wastepaper bin, for it does not offer a way forward on determining our constitutional arrangements.

[Lord Kerr of Kinlochard (CB)]

My Lords, I very much agree with the first two points made by the noble Lord, Lord Steel of Aikwood. It was very striking in our Scotland Bill debate how general is the consensus in this House on the need for a convention and how general is the concern that proceeding piecemeal is a very bad idea. It has got us into a lot of trouble.

I oppose Amendment 1, which I think is what we are trying to do. I am against Amendment 1—

[Lord Forsyth of Drumlean]

We are discussing Clause 2.

[Lord Kerr of Kinlochard]

The stand part debate? Very good. I support the Bill that the noble Lord, Lord Purvis of Tweed, has put forward, and congratulate him on doing it. I agree with the principle of it, but I do not agree at all with Clause 2, which seems far too long and detailed. We need to stop, reflect and think about principles. We need to start with a long period of reflection. I am also against Clause 3, which sets a timetable. Like the noble Lord, Lord Forsyth, I do not think it a timetable that could possibly work.

I was secretary-general of a convention which sat for 16 months, with four or five months of reflection, four or five months of working groups and then a drafting session at the end. We were overambitious and tried to do too much, and then were shut down by the Governments, who refused to extend our timetable. These were both mistakes. The idea of a period of reflection—which was President Giscard’s idea to begin with—was a very good one. That is how conventions should start. Clause 2 is overprescriptive in setting out the tasks that the convention should attempt—we are overdefining here.

My terms of reference would be very simple: “The convention must consider the governance of the kingdom, the relationships between its constituent parts and appropriate devolution of legislative and fiscal competence”. I would go back to principles. I do not think it a good idea to consider devolution to local authorities, as Clause 2(b) suggests. That is a secondary issue, and there is no reason in my view why there should be absolutely standardised devolution to local authorities across the kingdom as a whole. It could vary in the constituent parts.

On reform of the electoral system, I echo what the noble Lord, Lord Grocott, said. It seems to me that there is no longer a single electoral system: there are a lot of electoral systems. I have no reason to think there should be a standardised electoral system. It is not necessary for the system for local elections in Scotland to be exactly the same as that for local elections in England, for example—if such was the agreement of a convention starting from principles, Parliament should be invited to devolve generally.

I absolutely do not think that reform of the House of Lords is appropriate to a convention that is looking at principles. The composition of the House of Lords should be a function of the House of Lords: one needs to decide what the House of Lords is for. A constitutional convention ought to fetch up consideration of what cements the union—what are the appropriate ways of holding the union together? In my view, there is a considerable role for the House of Lords in that. But it would be a mistake to consider reforming the House of Lords at the same time as examining the fundamental principles, before you have reported back to Parliament and the country about those principles and discovered whether they are to some extent acceptable. There is too much bottom-up in here. We need to start with thinking about general principles, rather than getting into too much detail.

--- Later in debate ---

[Lord Forsyth of Drumlean]

Did the noble Lord notice that this very week, the Scottish Parliament sought to argue that the Sewel convention would apply to the Trade Union Bill? The Presiding Officer took the view that it would not but the First Minister indicated that she plans to have a word with the Prime Minister about this, arguing that because there are trade unions in Scotland, there is a Scottish dimension and therefore there should be some kind of legislative consent procedure. Does that not underline how important it is to define what is meant by the Sewel convention and to have legislation that is clear?

[Lord Kerr of Kinlochard]

I entirely agree with the noble Lord, Lord Forsyth, and look forward to agreeing with him again on Monday when the issue for debate is financial privilege.

--- Later in debate ---

[Lord Purvis of Tweed]

There is nothing in Clause 2 that would prevent that. On that point of broad consensus—

[Lord Kerr of Kinlochard]

The trouble with overspecifying, as Clause 2 does, is that you require people, before they report, to have considered everything. The first report should be about principles. Perhaps that would be the only report and the convention would never meet again, or perhaps it would, but when it comes to things such as the House of Lords, it should be considering them on the basis of principles that have by that stage, one hopes, been debated across the country, in this place and the other place, and have achieved a degree of consensus. Then it would consider the role of the House of Lords in the union, how can it best discharge that role, and how can it best be composed to do so. If you put on your original shopping list that, before the convention tells us anything it must make sure that it includes proposals to reform the House of Lords, you are making a terrible mistake. You would do much better to stick to the high ground of principle.

[Lord Purvis of Tweed]

As a Liberal Democrat, I never want to move away from the high ground of principle. The noble Lord seeks to bring me down to lower land.

Fundamentally, I do not believe we are that far apart. Of course a convention will have to start with consideration of what the principles of this union are. I rehearsed that argument at Second Reading and I need not do so again. Equally, though, I know the Government are taking forward a programme of reform, much of it based on cross-party consensus, with legislation and proposals, and I would not wish to set those apart. As I said, the fundamental difficulty is over how all those are being held together under the principles that the noble Lord indicated. I believe that setting a framework of specific areas that the convention should cover, within the overall aim of trying to secure a holistic view of what the union is for, is captured within Clause 2.

--- Later in debate ---

[Lord Kerr of Kinlochard]

Americans are always very surprised that we get by without a written constitution. That we could create a Supreme Court and lose the Law Lords from this House without any sort of supermajority or national consultation, merely by votes of these two Houses, baffled them. I have always been against a written constitution and feel that the arguments against it grow with devolution.

The difficulty posed by a written constitution, once you have got one, is that of amending it when new circumstances arise. If we had a written constitution in this country now, with devolution where it now is, we would be like the United States in 1787: we would be obliged to make sure that there was at least a majority of the constituent parts of the kingdom in favour of the change. If the majority was a simple majority, with three to one in favour, we would have a recipe for difficulty in the future. If it was four to zero, we would have a recipe for deadlock in the future. Although I have been inveighing against the Government for being a little over-flexible in their approach to constitutional change, flexibility is a good thing and I am therefore against the amendment.

I served the convention in an official capacity and three Members of this House were genuine members of that convention. They would all have believed that the noble Lord, Lord Purvis, is correct and that we should have a convention on this, so having me working for them did not turn them absolutely off the idea of a convention. The worst mistake we made—I can say that I argued against it—was what we called our product, which was a draft treaty between individual nation states and began with listing the signatories to the treaty, such as the King of the Belgians and so on. On the title page, we wrote that it was a “Draft Treaty establishing a constitution for Europe”. That was a great mistake, because it was not; it was a treaty. The idea of a written constitution for Europe was offensive to quite a few people. It was a terrible mistake. Flexibility is, on the whole, a good thing—though it can be carried too far, as recent events in this country have shown. Therefore, I speak against this amendment.

[Baroness Hayter of Kentish Town]

My Lords, I am not absolutely certain that the Labour Party has a position on this. However, as it has never called for a written constitution, I am going to take it that the Labour Party is against a written constitution—or at least, I am. As I said at Second Reading, I had a lovely cartoon from the New Yorker showing bewigged, 18th-century gents writing the American constitution and then putting at the end, “And no one will ever alter this”.

I do not support my noble friend on this amendment. However, had he used the word “concordat”—something to get the relationship between the two Houses agreed, which in some sense goes to what the noble Lord, Lord Forsyth, said earlier about function; that we should agree what the role of the two Houses are—I would have thought that this was a brilliant amendment. The idea of us having that serious conversation is one that I absolutely support. There are really big questions about that. It is not just about whether we get to vote on statutory instruments. It is about the relative roles in that and how often it is used. Particularly when we think of our size, if we become smaller and still have no retirement age, we will have an increasingly older and smaller group of people doing that diligent work on statutory instruments. Those are important discussions. I like one part of the amendment, which is to give some serious thought as to the function of both Houses. But please, while we may not be bewigged we should not be setting in stone the way in which we work in the short term.

Constitutional Convention Bill [HL]

Lord Kerr of Kinlochard Excerpts

Friday 17th July 2015 Lords Chamber

[Lord Kerr of Kinlochard (CB)]

My Lords, I shall speak on the convention in Brussels to which the noble Lord, Lord Maclennan of Rogart, referred, on which he served with distinction. It consisted of 200 individuals from every member state in the European Union and every candidate member state, from every Government and every Parliament. Some came wanting greater centralisation of power; some came wanting repatriation of powers. In practice, like the previous Government in their balance of competencies review, it could not identify any that it would be in the national interest to repatriate.

The convention worked for 18 months and reached its conclusions by consensus. We neither repatriated powers, nor recentralised them. We aimed at stability, entrenching the definitions of powers, making it more difficult to have creeping extensions of competence. We reached conclusions by consensus. For the first six months we did none of the above; we addressed conceptual papers prepared by the secretariat, which I was privileged to lead. The discussion of those papers led the conventionnel to come to understand each other better: to understand where they were coming from, to appreciate what might and what would not be possible. In the second six months, we addressed particular issues. Only in the third six months—although the thing wound up in 17 months—did we look at particular solutions and drafting issues. We reached consensus.

This is what worries me about this Bill. I support the idea of a convention but find the terms of reference in Clause 2 very hard to understand. I think you have to start from the conceptual and the general, and hone in on the particular when you have reached conclusions on the general. But these terms of reference seem to me to go the other way. I greatly admire the Liberal Democrat enthusiasm for localism, but to start with devolution is wrong. I believe that the noble Lord, Lord Soley, is quite right: you need to consider the countervailing force.

I would like to see us, in the spirit of John Stuart Mill, considering the basic issue of the bargain between state and citizen. What is the relationship between the United Kingdom and its citizens? What is the balance of rights and responsibilities? You need to ensure that a balance is struck between empowering the citizen, ensuring that decisions are taken at the closest possible level to him and involving him to the extent that is possible, and not disabling the state so that it remains able to provide the essential state functions which it is in the citizen’s interest are provided centrally, and the democratic control over their provision.

This would be for the convention to explore but I see three categories of state function. I would like to see a narrative develop on the role of the state. What are the functions of the central United Kingdom state? The first is the state’s responsibility for security and stability. We all agree that disaggregated defence makes no sense. The same goes for foreign relations, law and order, monetary stability and the currency. I argue that there needs to be some sort of fiscal flywheel to deal with exogenous external shock. When the oil price halves, the national economy greatly benefits but the economy of north-east Scotland does not. The SNP should be careful what it asks for. Had it now got the full fiscal autonomy it sought, and ostensibly still seeks, it would be in dire fiscal straits.

The second category of central state responsibility must be to ensure, although not necessarily to provide, adequate access to education, healthcare, maternity care, care for the elderly and care for the disabled, to which the citizen of every modern state is entitled.

Thirdly, I believe the citizen has the right to expect that the central state will ensure, although not necessarily itself provide, that, wherever he lives, he enjoys equal access to adequate transport links, energy supply and internet connectivity—a sort of public service obligation provision.

If I am right, a fourth point follows. The per capita cost of providing my second and third categories of state services obviously varies with geography and is highest where population density is lowest. Maintaining roads is costlier in the Grampians than in Godalming. If citizens all have equal rights to such services—and I suggest that they do—the need for a central redistributive fiscal mechanism is clear. In all the countries where I have lived, the centre has supported the periphery. But equally clearly, this redistributive mechanism must operate to empirically determined and weighted criteria. It must not be a historical irrelevance like the Barnett formula.

We need a clear rationale and a system that reflects it. All my four categories of function need discussion from first principles. That, in my view, is where a convention should start. What is the union for and how can the services the union exists to provide for the citizen best be provided? The present situation, where the extent of devolution is determined solely by demand, which can never be fully satisfied without abandoning the union of these islands, is profoundly unsatisfactory. We must stop changing the constitution in sudden lurches, like last September’s extraordinary “vow”, penned by a columnist in the Daily Record, which is not normally seen even as a journal of record; or the Prime Minister’s extraordinary 7 am broadcast: the EVEL broadcast—I spell it with an “e” in this case in deference to the Prime Minister—or the back-of-the envelope solution to the Prime Minister’s question produced by Mr Grayling in the House of Commons this week, which, as a constitutional aberration, is extraordinary in my view. I agree with the noble Lord, Lord Norton, and with what the noble Lord, Lord Butler, said yesterday. This is no way to handle the constitution.

I hope that this House will look very closely at the drafting of the Bill. The principle is absolutely correct but the stability of a planetary system rests on the balance between centrifugal and centripetal forces. As it stands, the Bill suggests that the convention would be about centrifugal forces. I think it also needs to address centripetal forces. The terms of reference should be to find the point of balance and entrench it. When it has been found, the proper handling of issues of devolution—in Clause 2(a) and (b)—will follow; it can be derived from it. Similarly, the parliamentary reform agenda can be derived from it. One needs to start at the beginning. I would drop Clause 2(e), the idea that the convention should draft agendas for future conventions. I agree with the noble Lord, Lord Forsyth, that the idea of a perpetual Maoist revolution, with perpetual conventions—let alone referenda—is not what we want. What we want is stability. Let us stop endless improvisation. Let us pause and reflect. Let us get it right. By all means, let us have a convention. I strongly support the principle of the Bill introduced by the noble Lord, Lord Purvis.

--- Later in debate ---

[Lord Bridges of Headley]

Who would determine which parties were represented? Would it be the Secretary of State, the convention chair—if, indeed, there is one—or the public? Then there is the reference to local authorities. Which local authorities, and should this be determined on size? Would it be—I ask this with a certain interest—Surrey County Council or Mole Valley District Council, or would we simply be represented by the LGA? Then there is a vague reference to nations and regions of the UK. Would that include members of your Lordships’ House? How many of these representatives would come from England, where most of the population live, and who would choose the regional spread?

That begs another interesting question. Should there be one unified convention or a series of mini-conventions? If just one, how would the voices of each constituent part of the union be fairly heard within that group? Should they have a veto? What if representation from one nation disagreed with that from another? Here, I quote—

[Lord Kerr of Kinlochard]

The noble Lord picks the nits with great skill and precision but I wonder whether he is going to address the big issues here, particularly that raised by the noble Lord, Lord Soley—the need for a union narrative.

[Lord Bridges of Headley]

My Lords, I entirely agree that there is a need for a union narrative. I believe that this House has heard that many times—perhaps not many times but a number of times—from my noble friend Lord Dunlop and from me. As I said, it should be based on the principles of fairness, balance, proportionality and respect for different parts of the union, and I believe that, as we continue to debate these issues in, for example, the Scottish Bill and other pieces of legislation coming to this House, we will continue to flesh that out.

As I was saying, Alan Trench, a fellow at the Constitution Unit, commented:

“What is vital for Wales is of much less importance in eastern England. To the extent there is a ‘Scottish’, ‘Welsh’ or ‘north-east English’ interest in the Union, each of these is different. Trying to set up a convention to resolve these issues without being clear about what the interests of the various groups are, and how they relate to each other, will be impossible”.

Finally, there is an interesting reference to the fact that:

“At least 50% of the members of the convention must not be employed in a role which can reasonably be considered to be political”.

I understand the gist of the clause, but I think that a lawyer would be able to rack up quite large bills contesting its implementation. Those considered political might include trade union workers, pollsters and even journalists, while a seasoned activist with very clear political convictions could be considered an ordinary member of the public just by nature of his or her employment. Who these people are and how they are to be chosen is another potentially contentious issue on which the Bill gives little indication. As the outcome of a convention depends on its members, does it not worry noble Lords that there appears to be significant confusion and inconsistency as to who should participate in this one?

Those points may sound frivolous, and the noble Lord, Lord Kerr, may say that I am nitpicking, but they reflect a serious flaw, because the debate over who gets to debate these matters would be acrimonious, generating heat not light. As I said, we would need a convention before the convention has begun just to deliberate on all that.

Recall of MPs Bill

Lord Kerr of Kinlochard Excerpts

Wednesday 14th January 2015 Lords Chamber

[Baroness Hayter of Kentish Town]

My Lords, in an hour of debate—

[Lord Kerr of Kinlochard (CB)]

My Lords, I want to say just a word in support of what the noble Lord, Lord Forsyth, said against the notion that this is purely House of Commons business. That must be wrong. For example, it would be very useful to know whether the noble Lord, Lord Tyler, believes that the judicial procedure he has set out consisting of two judges who will consider cases of parliamentary misconduct would be confined only to allegations of parliamentary misconduct at the other end of the corridor. That seems to be rather illogical and therefore his amendment is absolutely our business. Of course, he is proposing the amendment, so he will not agree with that.

The amendment is extremely dangerous for all the reasons that have emerged, and particularly the first reason, which was so well explained by the noble Lord, Lord Howarth. I have to say that I think that the Bill as a whole is extremely dangerous even as it is. Mine is the Burkean principle. Members of Parliament are sent up not to represent the views of their constituents, but to exercise their judgment. They are chosen on the quality of their judgment, so for all those reasons the Bill is defective.

The only speech in this debate which has surprised and disappointed me was that of the noble Lord, Lord Finkelstein, for whom I have enormous respect. I think that he has been lunching too often with that chicken.

House of Lords (Expulsion and Suspension) Bill [HL]

Lord Kerr of Kinlochard Excerpts

Friday 24th October 2014 Lords Chamber

[Lord Kerr of Kinlochard (CB)]

My Lords, I support the Bill and will try to be very brief, because it is a very brief Bill and my support for it is very strong—not least because it is very brief. We all owed the noble Baroness, Lady Hayman, thanks for her services to this House before the Bill; we now owe a bit more to her in the light of it.

It is a manifest absurdity that the maximum penalty that can be imposed on somebody who breaks the rules of this place varies in inverse proportion to the length of the Parliament. It is absurd—the scale of the penalty should reflect the scale of the offence, not the remaining period of the Parliament. It is Alice in Wonderland.

I completely agree with the noble Lord, Lord Phillips of Sudbury. His speech was important, because I feared before this debate that we would hear that this was not the only reform that needed to be undertaken and that we would get into the trap of letting the best become the enemy of the good. I, too, believe that we need to have more reforms of this place, but that should not be an excuse for delaying this self-evident correction of a self-evident absurdity.

I am grateful to the noble Lord, Lord Phillips, for warning against letting the best become the enemy of the good. I hope that what has been expressed from the Liberal Democrat Benches will also be expressed from the Government Front Bench. The noble Lord, Lord Cormack, is absolutely right to say that there is no reason at all why this very sensible, long-overdue, necessary little reform should not be on the statute book before the end of this Parliament.

I am also grateful to the noble Lord, Lord Trefgarne, who raised a point that I believe he has raised before, but in terms that indicated that he realised that it did not require an amendment to this enabling Bill and could be dealt with perfectly well in the Standing Orders that would follow.

I am going to deliver on my promise of brevity. I hope that the discussions in this House will be equally brief and that we will bring this Bill to a successful conclusion before the end of this Parliament.

--- Later in debate ---

[Lord Wallace of Saltaire]

I entirely understood. Unfortunately, some rather larger dishes may yet be introduced, which the Government may wish to try to push through.

We all hope that these powers would not be needed. We all recognise that we will need to look before the Bill is completed at the sort of things that will need to be in Standing Orders, because this Bill is quite a substantial extension to the power of the House, in spite of the wonderful phrase that the noble Lord, Lord Phillips, used—that it is intended to be merely an “amelioration”. However, I am very happy to talk further with the noble Baroness, Lady Hayman, and certainly take this back to the Cabinet Office to see what is possible.

Before we depart, I say to the noble Baroness, Lady Hayman, that I look forward to her next proposals on accretion or amelioration. I am happy that I hear around the Corridors a number of noble Lords on all Benches discussing the possibility of retirement at the end of this Parliament. That is another useful way forward. We should encourage it. However, perhaps the noble Baroness will, at the beginning of the next Parliament, produce a Bill that will suggest a retirement age by consensus. I look forward to giving her my support, from wherever I am at that point, on that next stage in amelioration.

[Lord Kerr of Kinlochard]

My Lords, the noble Lord’s tone is encouraging but slightly light-hearted. I regard this as a very important Bill. It may be short but if it is carried by acclamation in this House, as it should be, it will be very odd if the Government do not find government time for it in the other place.

[Lord Wallace of Saltaire]

My Lords, we appreciate that this is a serious matter. We all understand the question of the House’s reputation and of the public reputation of Westminster as a whole. I have previously said in responding to questions that that is one of the strongest lessons of the Scottish referendum and of the disillusionment of opinion across England with Westminster as such. We all understand that. I will take that away. I happen to be a strong believer in a reduction in numbers by accepting that we should all retire at a certain age. That is part of where we are now moving and it is part of our general responsibilities. I strongly believe that to be a Member of this House is a privilege, not a right.

I hope I have said enough to reassure the House. Conversations will continue off the Floor, as they so often do. We will see what we can do.