Estates of Deceased Persons (Forfeiture Rule and Law of Succession) Bill

Lord Lester of Herne Hill Excerpts

Wednesday 15th June 2011 Lords Chamber

[Lord Waddington]

There is just one little matter that puzzles me and I would be very grateful for my noble and learned friend’s help on it. If Amendment 32B is read along with Amendment 33, it seems to suggest that Amendment 33 covers all the ground in Clause 18 but merely puts it better. In fact, Amendment 33 does not address one of the matters which Clause 18 seeks to address; that is, the suggestion that EU law may be binding on us quite irrespective of any Act of Parliament. I wonder what my noble and learned friend’s answer is to that, because I do not think that his Amendment 33 covers one of the matters which Clause 18 seeks to address. The argument advanced by counsel in the metric martyrs case suggested that EU law was binding on this country quite apart from any Act of this Parliament.

[Lord Lester of Herne Hill]

I have added my name to the amendment. When I was young and at the Bar I remember that there was a High Court judge all of whose judgments were two words: “I agree”. I shall do my best to follow that admirable example as I agree with the analysis of the noble and learned Lord, Lord Mackay of Clashfern. I want to add a couple of things. First, paragraph 114 of the Explanatory Notes refers to a case that I was in more than 30 years ago, Macarthys Ltd v Smith, in which Lord Denning set out the exact position recited in that paragraph. The Explanatory Notes recite:

“As Lord Denning noted in the case of Macarthys Ltd v. Smith … ‘Community law is part of our law by our own statute, the European Communities Act 1972. Community law is now part of our law: and whenever there is any inconsistency, Community law has priority. It is not supplanting English law. It is part of our law which overrides any other part which is inconsistent with it.’”

That is exactly what this amendment puts into statutory language. The 1972 Act, the brilliant Act, if I may say so in his presence, introduced by my noble and learned friend Lord Howe of Aberavon, is the organic Act. That Act is the parent. It is that Act which made sure that the binding force of European Community law would not be directly as a result of judgments of the Luxembourg Court but would be directly as a result of the Geoffrey Howe Act. That is what is said here. To recite further Acts which have come in afterwards by way of a list, as the noble and learned Lord, Lord Mackay, has indicated, is inappropriate.

[Lord Williamson of Horton]

It seems a long time since we discussed Clause 18 at Second Reading and in Committee. I would recall that it is only tenuously linked to the referendum lock clauses. It has been described as the parliamentary sovereignty clause, but it is perhaps best described, as in the words of the Bill, as a clause on the “status of EU law”. It is a declaratory provision which confirms—it does not establish—that directly applicable or directly effective EU law takes effect in the UK only as a result of an Act of Parliament. Some people do not like declaratory provisions in legislation, but the Government may certainly propose such a clause if they think it has importance in maintaining public confidence by confirming, for the first time in statute, our existing treatment of EU law within the UK’s domestic legal order. It is consistent with the decisions of our courts, notably by Lord Denning in Macarthys Ltd v Smith in 1979.

Amendment 32B has not been moved, so Clause 18 is in the Bill and we have a choice between the Government’s text and the revised text proposed in Amendment 33, which refers specifically to the European Communities Act 1972 rather than to an Act of Parliament. The Explanatory Notes to the Bill state that the words,

“by virtue of an Act of Parliament”,

cover UK subordinate legislation made under Acts and also Acts and measures of the devolved legislatures in exercise of the powers conferred on them by the relevant UK primary legislation.

That is the description, but will the Minister say—this is the same point that has been broadly covered by the noble and learned Lord, Lord Mackay— whether that is the specific reason why these words were chosen in the Government’s text? As everything seems to come back to the European Communities Act 1972, would the reference to that Act in the text of the amendments not also cover subordinate legislation and Acts of the devolved legislatures? That is what has been stated and I should like the Government to confirm whether that is the case.

--- Later in debate ---

[Lord Flight]

My Lords, I rise with some trepidation, as I am not a lawyer. I have not been entirely satisfied by the arguments that have been put forward by both the noble and learned Lord, Lord Mackay, and other eminent lawyers in the House that we can rely entirely on the 1972 Act and the fact that apparently subsequent legislation depends on the definitions in that Act, to the effect that the 1972 Act covers all relevant legislation.

The noble and learned Lord made the point that there was very little difference between his position and that of the Government in this territory, so I wonder what is wrong with taking a belt and braces approach to this matter. If I understand the position, there are other sources in relation to subsequent Acts that are as drafted not wholly dependent on the 1972 Act, and EU law can be given legal effect in the UK by secondary delegated legislation and not just by primary legislation.

[Lord Lester of Herne Hill]

I realise the noble Lord is not a lawyer and what I am about to say may seem unfair, but the answer to what is wrong with his suggestion is that the Court of Appeal and the House of Lords in the cases of Macarthys v Smith and Factortame have made the legal position perfectly plain. That is why the noble Lord, Lord Richard, is right in saying that we do not need Clause 18, but if we are going to have it we may as well have it stating the law as declared by our judges.

--- Later in debate ---

[Lord Wallace of Tankerness]

No, my Lords, but one should consider the context. This new clause was proposed in its original form in the context of trying to lay to rest any contrary suggestion that there are other means—means which I do not think anyone in this debate has accepted; nevertheless, they are out there and are run as arguments—by which European Union law can be imported into the legal systems of the United Kingdom. That is why we use “only”.

[Lord Lester of Herne Hill]

I hope that my noble and learned friend takes this question in the spirit in which I ask it. Is there not a danger that his approach would be in accordance with Lord Wilberforce’s warning about the “austerity of tabulated legalism”?

[Lord Wallace of Tankerness]

That is the sort of question that one wants notice of and where the answer might in any case be misinterpreted. I think that I made it clear, and that it has been generally recognised in these debates, that this is against a background of suggestions made not in this Chamber—I think the position is perfectly well understood here—but elsewhere that there could be other channels via which European Union law could be imported into this country. We want to make it clear—I think there is near unanimity in the House—that it is by Acts of Queen and Parliament that the European Union law has effect.

The main difference between us is the view expressed in the amendment that the European Communities Act 1972 is the sole legislative vehicle for doing this. Our concern is that there are other Acts of the United Kingdom Parliament which make direct reference to European Union law, particularly the one on directors’ disqualification, which does so without reference to any other form of the 1972 legislation, even through the Interpretation Act. As my noble friend Lord Flight said, it is belt and braces. In a situation such as this we believe that the belt and braces are required. It is a fine point—not one of principle, but it is one of statutory interpretation. We believe that to list would not be neat because of the danger of leaving one out, but we need to make it very clear that European law becomes part of our United Kingdom legal system through an Act of Parliament. That is the way it happens and by no other way. To limit it to one Act, however fundamentally important that Act, runs the risk of leaving others out which are already on our statute book. For that reason, I invite my noble and learned friend to withdraw the amendment.

--- Later in debate ---

[Lord Risby]

My Lords, the whole House will recognise the magnificent work over many years that, as a great public servant, the noble Lord, Lord Kerr, has done for this country but at the heart of the amendment is the fact that he dislikes the Bill in its entirety. It may also be fair to say that his idea of a sunset clause is the very passionate hope that the sun will never rise on it again. I see him smiling.

The whole point about this Bill is that it is meant to provide an enduring framework or umbrella under which future important EU decisions can be made. It comes back to this fundamental question, which is one of trust. People need to feel that they have a longer term guarantee of that sense of ownership of these procedures if we are to give away powers to the European Union. That is simply at the heart of this Bill. A sunset clause would give a limited time frame—providing perhaps for a time when we do not expect a referendum, or taking that right away when there might be a treaty change. That is the possible danger. But I might use the analogy of saying to the noble Lord, “Here is £5, but you can spend it only between four o’clock and six o’clock in the afternoon, otherwise I am going to take it back”. That is the essence of what this is all about.

We all want to build trust, which has been absent in the relationship between the people of Britain, Governments and the European Union. As we have observed already in our debates and discussions, the Laeken treaty, which was meant to rebuild that trust, following through to the Lisbon treaty, has certainly failed to do that, and we are seeing the consequences right across the European Union. We do not want a future Government, who are to re-engage people, to be able to renege on a promise. This Bill does not seek to bind a future Government—that certainly could not be done anyway—but it binds a Government politically to ensure that the people of this country are involved. That is the key and heart of this particular legislation.

A sunset clause can be appropriate in certain circumstances. Most of your Lordships will agree that the Counter-Terrorism Bill was a case in point. There was perhaps, arguably, a temporary situation that had to be dealt with, although I certainly did not agree with it, and then our traditional liberal traditions needed to be returned to in due course after what some people regarded as an exceptional situation. But in practice this amendment would return ministerial discretion to decide whether to revive Part 1, which includes the whole issue of the referendum and parliamentary control provisions. There is a risk that a Government might revive the Bill only if they were confident that there was no chance of treaty change during that Parliament. Of course, should this Bill become an Act of Parliament, which I certainly hope it does, it could be repealed, as the noble Lord said. But it should be repealed on the same mechanism of equal importance as its introduction if a repeal is going to take place. In future, the Government will have to come back and explain themselves about major EU decisions, which is essentially what the Bill demands.

If the noble Lord’s amendment were to improve the Bill, we might consider it in a rather more dispassionate way. But what this is about really is taking the heart out of the Bill—and I am confident that the noble Lord knows that too well.

[Lord Lester of Herne Hill]

My Lords, one benefit of our largely unwritten constitution is the flexibility that our system gives us; one defect is that we do not have a very consistent set of principles to guide us. We tend to be pragmatic. My experience as a blow-in or holiday resident for 38 years in the Republic of Ireland and my experience of their system makes me attracted to one of the arguments in the speech in support of the amendment by the noble Lord, Lord Kerr. It has convinced me that any attempt in this Bill to introduce inflexibility would be a grave mistake. I also think that referenda on complicated and highly technical matters are not a very good idea.

The Irish constitution has been interpreted by a narrow majority of the Supreme Court of Ireland as requiring referenda in quite a number of circumstances. When the treaty of Lisbon was put out for referendum the Irish Government produced an information pack which was completely incomprehensible even to lawyers, since it referred to bits of that treaty by reference to article numbers, paragraphs and specific legislative proposals. They left an information pack in each post office. I took the trouble to try to understand it and, as I say, I found the information given to the citizens of the Irish Republic to be so opaque that I certainly could not understand it.

--- Later in debate ---

[Lord Empey]

My Lords, I was amazed that the name of the noble Lord, Lord Pearson, is not on the amendment. I was also surprised at the remarks of the noble Baroness, Lady Williams, who is well known throughout the country as a very wise head. However, the effect of the amendment, and the idea of a sunset clause, would be to give those who want to sever any relationship between this country and the European Union an opportunity at least every five years to have a platform with a specific objective in mind and to achieve it. That would be unwise. I am not sure whether anybody in the Chamber has not made up their mind on the Bill, but I will assume that one or two noble Lords are subject to persuasion. There could be nothing less attractive for somebody who believes in European Union than putting in a sunset clause. It would turn every election into a referendum on the European Union. Nothing would do more damage to the European cause because everybody would come out of the woodwork to oppose it and to run single-issue campaigns. We know that they work, because campaigners for hospitals, and environmental campaigners, have won seats in different countries. Single-issue elections are the most dangerous type, and I fear that we would open up a Pandora's box. Those who passionately oppose the Bill are shooting themselves in the foot with this amendment.

The noble Lord, Lord Lester of Herne Hill, made the point that he had seen the Irish constitution in action. The Irish are very proud of their constitution. The Irish Government accepted, after the first referendum on the Lisbon treaty, that they had provided an overcomplicated form of information to the people, and subsequently corrected this at the next referendum. Nevertheless, people are still passionately in favour of their constitutional rights. If one goes to anybody in the Republic and says, “This is too complicated—the Government put forward all this stuff and we could not understand it because it referred to treaties and articles”, and then asks them whether they want to retain the right to have the final say, they will say yes. Even though there is a complication in a referendum on a single issue—it can be very difficult—the people in the Republic passionately believe in their right to choose. You would not find anybody in the political establishment in Dublin who would challenge that.

[Lord Lester of Herne Hill]

The noble Lord has the advantage of coming from the northern part of the island of Ireland. As I said, I have the advantage of having lived in the southern part for many years as a blow-in. Is he aware of the fact that the reason that the constitution has been interpreted to apply so indiscriminately to so many referenda is not that the Irish people decided that but that a very narrow majority of the Supreme Court of Ireland so decided, against the powerful dissents of others? In other words, it was a curious judicial decision and not a popular one.

[Lord Empey]

I take the point that the noble Lord makes. However, he will also know that if there was any groundswell of opinion to change the constitution, proposals would come forward in the Dàil for that to occur. I know of no current or recent Member of that Parliament who would stand up on a platform to advocate it. While the noble Lord is no doubt correct in his judicial interpretation, there is no support in the Republic for removing the right of the Irish people to make decisions on these issues.

The underlying danger of the proposed new clause goes back to the reason why we have the Bill in the first place. It is the “we know best” syndrome: in other words, in both Houses of Parliament, we know best. In many cases that may be true: I believe in parliamentary democracy. However, the reason that we are in this position is that the usage of that right to represent the people has resulted over time in a breakdown in their confidence in the decisions of Parliament on this subject. That is why, as I understand it, the Government are putting forward a proposal which they hope over time will bring a resurgence in that confidence. Noble Lords have suggested reviews. Perhaps, in time, if that confidence is restored, such measures may no longer be required. It is a response to a particular set of circumstances that we face today.

I do not wish to put words into the mouth of the noble Lord, Lord Kerr, or to apply a motive to what he said or to his proposal, but this is effectively a kill-the-Bill amendment. The Bill would be better not passed than passed with this clause in it. What we are actually saying to the public is, nod-nod, wink-wink, “We’ve found a way round this. By the time we get to the next general election, we’ll be able to tear it up again and go back to our old ways”. That would further undermine people’s confidence that we are listening to them and taking this issue seriously. Therefore, I see this as a kill-the-Bill amendment, and I sincerely hope that we do not include it because it will affect every subsequent election. We would open Pandora’s Box. Let us suppose that Brussels, as it is perfectly capable of doing, comes out with a proposal a few weeks before the election requiring us to have straight bananas or something stupid. It could turn the election into a referendum on Europe. Everybody who believes in the European Union, and many here are clearly passionate about it, would not be serving their cause. I hope under these circumstances we will vote not content on this amendment.