European Union Referendum Bill

Lord Lexden Excerpts

Wednesday 18th November 2015 Lords Chamber

[Lord Lexden (Con)]

My Lords, I should like to return briefly to two points from among those I made in Committee. First, if our fellow countrymen and women who have lived overseas for more than 15 years are deprived of the vote in this all-important referendum, it will be because of a preventable accident of timing. As we have heard, the Conservative Party is committed to enfranchising them, but the promised Bill to do so has not appeared. The right thing to do, and this is a Government who pride themselves on doing the right thing, is to make provision for them to take part in the referendum through this Bill.

Secondly, I say again, as I did in Committee, that we should put ourselves in the shoes of our fellow countrymen and women who have been living in other EU countries for more than 15 years. How would we like it if we were deprived of the vote in a momentous referendum which will touch our present livelihoods and future prospects so intimately and directly, when we knew that at the next parliamentary election a vote would be ours? I take the view that the Bill should be returned to the other place incorporating this amendment. The issue was discussed hurriedly and incompletely during the earlier debates on the Bill there. Let the elected Chamber be asked to make a carefully considered decision on this issue. If we do that, we will have discharged our proper constitutional duty in relation to this part of the Bill.

[Lord Lester of Herne Hill (LD)]

My Lords, I regret that I was not able to speak at the Committee stage, but I want to make one brief point. It is extremely important for us, through the Government and Parliament, to recognise the service given by our fellow citizens when they serve in the European institutions. I have made the point in the past so far as judges are concerned. It is vital to get good British judges to serve in Europe. But exactly the same applies elsewhere in the European public service.

The example that comes to my mind is that of an admirable civil servant, now retired, called Simon Palmer. He has lived in France for more than 15 years. He lives there because during the whole of that time he served the Council of Europe as a member of the European civil service. He takes his holidays in England and he is thoroughly British, but he has brought up his family in Europe. I see no good reason why he should suffer the penalty of being disqualified from the referendum simply because he has lived there for the wrong side of 15 years. His connection with this country is no weaker, and it is very important that through this debate and what comes of it, we should recognise the vital public service given by people like him by giving them the ability to vote in this crucial referendum.

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[Baroness Morgan of Ely (Lab)]

My Lords, many noble Lords believe in the principle of votes for life for British citizens, irrespective of where they now live or how long they have lived there for. Others have argued that this is a one-off, exceptional situation relating to the fact that this is an EU referendum— that UK citizens living in the EU will be directly impacted and they should therefore be given the vote. These are different arguments and we disagree with both.

I am clear that if we were to leave the EU there would be an immediate and direct impact on UK citizens living in other EU member states. Their status in the country would at the very least be reviewed. Will their qualifications be recognised? Will their pensions be uprated? Will they be able to access member states’ medical services? There is a deafening silence from the Government on these issues, but it does not mean that they should be given special status in this referendum because of the possible impact on their lives.

In Committee, my noble friend Lord Grocott eloquently inquired why we allow some expats in some countries in Europe, such as Sweden, to vote, while preventing others in countries such as Norway from voting. He also suggested that we would be getting into difficult territory if we allowed only those affected to vote. If we start down that route we will get into difficulty.

Then there is the practical issue of registering these people. Who are they? How do we find them? What if we extend the franchise to 16 to 18 year-olds? The Minister suggested that if all citizens around the world were invited to register there could be about 5 million of them. That is not what the amendment says; it says, “Let’s restrict this to the EU”. That is 1.3 million citizens. We have just heard some very clear statistics, but they actually were not that clear. That is the problem. We have no idea how many there are. It will be very difficult to trace them in a short space of time. This is very different from 16 to 17 year-olds voting. We know exactly where they are: in school. These people are spread throughout the continent. We would not know where to start, not within the nine-month timeframe.

Many UK citizens overseas have been invited to register in the past, but as the noble Lord, Lord Dobbs, pointed out in Committee, fewer than 20,000 British expats in the European Union have taken up that right to vote, despite all the efforts and funding that has been given to advertising by the Government and to get them involved.

[Lord Lexden]

The noble Baroness underestimates the figure. It is not 20,000, but more than 100,000 registered to vote at the last general election.

[Baroness Morgan of Ely]

That is even fewer. That makes my point more eloquently. The point is, there was a huge drive to get these people to sign up and they did not take it up, although I think every one of those 100,000 has emailed me in the past few weeks to ask for this vote in the EU referendum.

The issue of citizenship and the responsibilities of citizens that my noble and learned friend Lord Goldsmith talked about earlier should be taken into account. In this country we have said time and again that we want to encourage people to integrate into their communities, to be a part of this society. It would therefore be inconsistent for us to suggest that, after 15 years in a country, they should not also be encouraged to become part of that society and to establish roots in their adopted lands.

There must be no question about the legitimacy of this referendum. We believe that there should be a cut-off point when people should lose their entitlement to vote if they have made their home abroad. We think that the current cut-off point of 15 years is about right. However, let me make it absolutely clear that there is no inconsistency in Labour’s position on this. The Conservative Government have said clearly that they want to see this extended. It is in their manifesto. They want British citizens who move abroad to be able to vote for ever. We do not believe that. When that Bill comes before this House we will oppose it.

I hope noble Lords will agree that there is, at least, a degree of consistency in the Labour Party’s position on this issue. We do not want to see this franchise extended beyond 15 years.

European Union Referendum Bill

Lord Lexden Excerpts

Monday 2nd November 2015 Lords Chamber

[Lord Shipley (LD)]

My Lords, I support this group of amendments, as I did in the Private Member’s Bill last year and also at Second Reading and on the first day of Committee. They represent a very major issue of principle. The Minister said on the first day in Committee that the Government had decided to use the Westminster franchise. I think the reasoning was that it is an established system that is easy to implement. The problem is that it is actually a very weak system because of who it excludes. We have heard all the reasons for that in the debate so far. The Government have accepted the principle of votes for life, and planned legislation to amend that anomaly, so I find it very puzzling to understand why the Government feel unable to implement it in time for this referendum, given that there is a fairly good chance that the referendum will not be held until early 2017. I hope that the Minister will explain in some detail why the timetable for legislation cannot permit the votes-for-life legislation promised in the Conservative manifesto to be implemented in time for it to apply.

One point that has not been made so far in the debate is that it is not difficult, in administrative terms, to resolve this problem. All those who qualified for a vote in this year’s general election and who may exceed the 15-year limit when the referendum is held are known to electoral registration officers, and extension of their right to cover this referendum would be straightforward to implement. Those not registered to vote in a general election who have lived outside the UK and the EU for more than 15 years could be invited to register using passport, national insurance number, evidence of current residence and evidence of their last residence in the UK.

The noble Lord, Lord Green of Deddington, talked about the numbers involved. Of course, this is an issue of principle—there may well be a lot of people, but the issue of principle seems to me to transcend the issue of how many people might be entitled to vote and how many people might register to vote. I agree with the noble Lord that if the votes-for-life Bill is for all those who live outside the United Kingdom, whether in the EU or elsewhere overseas, that is an issue we need to address. I would be very happy to support an extension to all UK passport holders wherever they live in the world. However, this group of amendments relates to those who live within the European Union. Of course, I accept that an extension of the kind proposed by this group of amendments would give the Government a bit of work. However, set against that should be the rights of all UK passport holders living in the EU to have a say in their future.

We have heard of the concerns that people have. I am particularly concerned as to whether the UK Government will continue to uprate pensions. In many parts of the world, pensions are not uprated. They are uprated within the European Union, because it is part of our agreement as a member of the European Union. Other issues have been raised, but this is really important to those living within the EU outside the UK. It is very important to be clear about these matters, and very important to acknowledge the right of those with a stake in the outcome to have a say. I hope, when the Minister comes to reply, that he will explain why the Government think it is appropriate for them not to have a say.

[Lord Lexden (Con)]

My Lords, the noble Lords who have tabled these amendments have performed a most valuable service which has wider international dimensions, as my noble friend Lord Flight and others have pointed out. I have strongly and consistently supported the removal of the arbitrary 15-year limit on the right of our fellow countrymen and women living overseas to vote in our parliamentary elections—a right first conferred by Margaret Thatcher’s Government. I urged its removal in my first speech in this Chamber in early 2011. I tabled amendments to the Electoral Registration and Administration Bill in 2013 in order to press the case for change. I took part in subsequent discussions on overseas voting arrangements in a cross-party group chaired by my noble friend Lord Norton of Louth—a group in which my noble friend Lord Tyler played a conspicuous part.

I was delighted when my party included an unambiguous commitment in its recent general election manifesto to sweep away the iniquitous 15-year bar. Swift implementation of that commitment would have dealt with all the aspects of this issue, both as regards the parliamentary franchise and, as a direct consequence, the forthcoming EU referendum. However, the Bill to give effect to the unambiguous Tory commitment has not even been published. I was greatly taken aback to be told, in answer to an Oral Question in July, that there was no certainty whatever that the Bill would reach the statute book before the referendum took place—and it has become even less certain since then. This is deeply disappointing. Nothing could have been more precisely predictable than the emergence of the huge problem with which we are now confronted if swift and early action was not taken.

It is extremely unfortunate, to put it mildly, that work was not set in hand at the earliest opportunity. The Tory pledge was made in September last year. A branch of the Conservative Party’s organisation with which I am closely connected, Conservatives Abroad, has two outstanding experts on all the issues involved in extending the right to vote to all British citizens living overseas. They could have helped prepare the way for the Bill, which, if it were now before Parliament, would have prevented the wholly foreseeable problem that the amendments seek to address; unresolved, it will inflict great injustice on a significant number of our fellow countrymen and countrywomen overseas.

It simply cannot be right to hold a referendum in which some British citizens living in another EU member state or elsewhere in the world are able to take part, while others are excluded because they happen to have been absent from our shores for more than 15 years. The outcome within the EU will affect them all equally and profoundly. It will surely be incomprehensible to our fellow citizens living abroad that an election manifesto commitment cannot be implemented by one means or another in time for them to participate in a vote of such overwhelming importance for the nation to which they belong.

We need to imagine ourselves in the shoes of Harry Shindler, to whom the noble Baroness, Lady Royall, paid tribute, and our other fellow countrymen and countrywomen who have been living overseas for over 15 years and have retained a strong sense of British identity. How would we feel about being excluded from this momentous referendum while those who have not reached the 15-year limit can take part? The Bill should be returned to the other place and amended in order to include British citizens who have been living overseas for more than 15 years. In that way, we would uphold the principle enshrined in the Conservative election manifesto.

[Lord Bowness (Con)]

My Lords, I added my name to two amendments in this group. I speak in support of the amendments and of the principles that have been enunciated today. The franchise as envisaged in the Bill is full of anomalies, and it was quite clear from the first day of Committee that not all those anomalies will be removed. This, however, is a very simple point, and it is one of justice and fairness. We are speaking of people who have made possibly lifetime decisions to go and live and work in the European Union, and we are proposing to have a referendum that will determine whether or not the state of affairs of the United Kingdom being within the Union continues. In my submission, those people must in fairness have the right to participate.

On the first day of Committee I heard words to the effect of, “a decision to be made by British people”. I hope that it is a decision to be made by all British people, not just those whom we are going to be selective about. We have heard that there is a promise to extend the franchise. That makes it even more unjustifiable to deny those British citizens the right to vote in this referendum.

It would be wrong for those who are opposed to it to see British citizens abroad as somehow tax exiles. Many British citizens living abroad may well be non-resident in terms of not living in this country but they will not be non-resident in the eyes of HMRC, whose grasp is tight and long. Those who have family, properties, sources of income or other matters that bind and tie them to this country remain within its net. Therefore, that is justification for enabling them to have the vote.

Putting it into context, we are seriously proposing that they should not have a say in this decision, in contrast with the arrangements of some other member states which ensure that their citizens who live abroad are represented in their legislatures by members specifically elected by those expatriate communities. I do not suggest that we move in that direction, but I think that it helps us to see the context in which this argument is taking place. I support the amendments in this group.

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[Lord Dobbs (Con)]

My Lords, I very much welcome the Government’s manifesto commitment to give votes to all expats, no matter how long they have been abroad. It is a very welcome commitment which I look forward to seeing being put into place—but whether it is iniquitous that they have not yet been given the vote, as my noble friend suggested, I am not sure. These are matters of balance and practicality and it is to the practicalities that I will refer very briefly.

I take the point of my noble friend Lord Flight, who asked why, if we are giving votes to people in one part of the world, we should not give them to British citizens in all parts of the world. The Oslo and Stockholm example that the noble Lord, Lord Grocott, offered is very telling. There are something like 5 million British expats living abroad and 2 million of them, give or take a few, live in the European Union. For a very long time they have had the right to vote if they have been there for 15 years or less and I find it deeply distressing, because I believe that they should take an active role in their democracy, that fewer than 20,000 British expats in the European Union have taken up that right to vote. Despite all the efforts and the funding that has been given to advertising by the Government to get them involved, as a group they have shown a very sad lack of willingness to get involved.

[Lord Lexden]

My noble friend is right about the situation that existed in 2013 and 2014, but a magnificent effort was spearheaded by Conservatives Abroad, though not on its own, which helped greatly to increase the number registered to more than 100,000—not all in the European Union—at the last general election, which was the largest number ever registered.

European Union Referendum Bill

Lord Lexden Excerpts

Wednesday 28th October 2015 Lords Chamber

[Lord Forsyth of Drumlean]

It is interesting that the noble Lord is anticipating that we are going to leave the European Union. I did not say that they were not losing sleep over whether or not we would leave the European Union; I said that I doubt they are losing sleep over not having a vote in the British referendum, which is an entirely different point. I am by no means making light of our relationship with Ireland; I think it is very important. However, what people in Ireland are losing sleep over is the amount of money and the destruction that their membership of the euro has cost them. But that is a debate for another day.

The hour is late. I support the noble Lord, Lord Green, and think that the oblique nature of the attacks on his arguments, rather than dealing with the substance of the amendments, indicates that this is a matter that we should return to at a later stage in the Bill.

[Lord Lexden (Con)]

I would like to make a small point of clarification, if I may, as far as the Irish Republic is concerned. At some point under Mrs Thatcher’s Government—I cannot remember the exact year—the Government of the Irish Republic extended to British citizens living there those voting rights that Republic of Ireland citizens have here. If British citizens are excluded from a referendum in the Irish Republic, it is because there is a separate electoral roll for that. As far as parliamentary elections are concerned, we are on all fours with the Irish Republic and have been for some years.

[Lord Wallace of Saltaire]

May I ask a factual question of the Minister, which, again, he may not be able to answer immediately? Are we sure that we can identify on the British electoral register who are British citizens, who are Irish citizens and who are Commonwealth citizens? I am not aware, from my time looking at electoral registers, that these are listed separately. If they are not listed separately, would it be possible to identify them between now and a referendum that might be in six or 12 months’ time? That seems highly relevant to the ability to apply this amendment, if passed.

British Bill of Rights

Lord Lexden Excerpts

Wednesday 28th October 2015 Lords Chamber

[Lord Faulks]

We will consult fully on our proposals, and will announce further details in due course. There have already been two consultations pursuant to the commission on a Bill of Rights, and there will be a third consultation. This is in marked distinction to what happened on the Human Rights Act, which was brought in without any consultation at all, within six months of the Labour Party gaining power.

[Lord Lexden (Con)]

Will the Government give a clear assurance that their proposals will be fully compatible with the European Convention on Human Rights, to which prominent Tories made such a marked contribution?

[Lord Faulks]

There are no plans to leave the European Convention on Human Rights. My noble friend is correct to say that Conservatives had a significant role in drafting the convention. There are considerably more difficulties with the Strasbourg jurisprudence, rather than the convention itself.

Office of Lord Chancellor (Constitution Committee Report)

Lord Lexden Excerpts

Tuesday 7th July 2015 Lords Chamber

[Lord Lexden (Con)]

My Lords, this occasion is, for me, tinged with a little sadness. The report before us today was one of the last produced by the Constitution Committee before my three-year term as a member expired with the Dissolution of the last Parliament. Participation in its work brought me immense profit and pleasure. It was very good indeed to be united as a colleague with noble Lords drawn from all parts of the House, and even the occasional tendency of one or two members towards slight prolixity could not diminish the enjoyment. The committee is brilliantly served by its officials, who combine a passion for detailed research with a gift for clear, precise drafting. The discussions in which I took part were chaired very skilfully, first by the noble Baroness, Lady Jay of Paddington, and latterly by my noble friend Lord Lang of Monkton. I am grateful, above all, to them, and follow my noble friend Lord Lester of Herne Hill in emphasising that I make these remarks in no spirit of idle flattery.

Turning to the subject of the report before us, it is surely important to be clear about the reasons why the ancient office of Lord Chancellor, hallowed by time, matters in today’s world. Only tiresome ultra-Tories—the noble Lord, Lord Beecham, made reference to one of them: Lord Eldon—think that institutions are justified simply by longevity. The rest of us believe that a test should be applied for long-standing arrangements, based on whether they discharge functions that continue to be needed.

On that point, we can draw on the testimony of the late Lord Hailsham, who held the office of Lord Chancellor for 12 years. He had no doubt that his office passed the test of practical utility. Exactly 40 years ago, he wrote that,

“where the constitution does not limit the powers of Parliament, and Parliament itself is largely under the influence of the executive, the preservation of the integrity of the rule of law has to be entrusted to a man and not a legal instrument. In Britain that man is the Lord Chancellor”.

With him, Hailsham added, lay the vital duty of ensuring that,

“the independence of the judiciary and the rule of law should be defended within the cabinet as well as parliament”.

There can be little doubt—this debate has reinforced it—that the same views were held by Lord Hailsham’s predecessors in the office of Lord Chancellor and by his successors, including those who held it in the immediate aftermath of the far-reaching changes, not all of them wise, introduced under the Constitutional Reform Act 2005.

This is not to say that all past Lord Chancellors were held in the same high regard by the Prime Ministers under whom they served. In July 1962, Harold Macmillan summarily dismissed his Lord Chancellor, Lord Kilmuir, as part of his extraordinary Cabinet purge known as “the night of the long knives”. Kilmuir protested that even a cook would have been given more notice. Macmillan replied that it was easier to find Lord Chancellors than cooks. Lord Kilmuir perhaps should have learned from the experience of Lord Eldon, to whom the noble Lord, Lord Beecham, referred. Lord Eldon held so tenaciously to his post that he slept with the Great Seal under his pillow.

It rapidly became apparent at the outset of the Constitution Committee’s inquiry that its most important element would be an examination of current attitudes, particularly those within government, to the two crucial responsibilities of the Lord Chancellor: the preservation of the rule of law and the defence of judicial independence. The Lord Chancellor has other significant responsibilities —they are listed in paragraph 12 of the report—but no one, I think, would make the case for retaining this ancient office by reference to them. If the post matters in today’s world, it is because of the two core duties, as the report describes them in paragraph 12, in relation to the rule of law and judicial independence. They naturally became the chief focus of the committee’s work.

The second—the maintenance of the independence of the judiciary—was readily endorsed by all our witnesses, but the first—upholding the rule of law—was the subject of differing views. Some of our witnesses argued that this vital duty was now widely diffused among Ministers as a whole and no longer resided principally and overridingly in the office of Lord Chancellor. This, indeed, was the view of the then Lord Chancellor, Mr Grayling, whose opinion is cited in paragraph 34. Frequent references have been made to it, not altogether in an amiable spirit, by noble Lords who have contributed to this debate. The committee agreed that this crucial legal and constitutional duty did not lie exclusively with the Lord Chancellor, but we saw absolutely no reason to set aside a powerful argument put to us by former Ministers, both Labour and Conservative, with long experience of politics and the law, by distinguished officials who have worked in the Lord Chancellor’s department and by other experts that, as paragraph 42 of the report puts it:

“The Lord Chancellor continues to have an additional responsibility in this regard”.

We put forward recommendations to make that clear, but they were rejected, as we have heard.

It would seem to follow from that rejection that the Government believe, or at that point believed, that the Lord Chancellor should no longer exercise the particular duty to uphold the rule of law on the wide basis on which the holder of the office has until now undertaken it. If so, that is surely a new constitutional tenet which significantly diminishes the Lord Chancellor’s role. If Lord Hailsham’s ghost should walk abroad, Ministers must expect their repose to be disturbed, unless the new position outlined by Mr Gove now holds the field. Like so many other noble Lords, I look forward to my noble friend Lord Faulks’s comments at the end of the debate.

The role of the Lord Chancellor has been attenuated in another especially important respect, about which grave concern has quite rightly been expressed in this debate: he is now excluded from any serious participation in the processes by which constitutional affairs are considered. Mr Grayling told the committee:

“The truth is today the constitutional role that the Lord Chancellor once performed, in a very practical sense, is not currently there”.

Those words appear in paragraph 94 of the report. Is this not, in a very practical sense, unfortunate? Major constitutional reforms proceed in endless succession, unco-ordinated with each other. To give just one example, Scotland is to receive major new powers in relation to income tax while Northern Ireland is to be given significant responsibilities in relation to corporation tax. The Government give the impression that a new coherent constitutional settlement will somehow emerge of its own accord from a series of far-reaching changes, separately conceived and executed.

Do we not need what Enoch Powell once called a constitutional invigilator, someone who can watch over the fundamental changes that are bringing us almost inexorably to a quasi federal-state? His presence could be particularly valuable since the Government have ruled out a constitutional convention, which is the other obvious means by which coherence could be brought to sets of separate initiatives and the framework created for a new constitutional settlement that would stand the test of time. I submit that the recommendation in paragraph 101 of the committee’s report that the Lord Chancellor should exercise oversight of the constitution is the more significant in the circumstances in which we now find ourselves.

A report that runs to over 35 pages, excluding summaries and appendices, secured from the Government a response that comprises just 10 paragraphs, two of which consist of a single sentence. The one disappointing feature of my otherwise deeply rewarding period on the Constitution Committee was the Government’s reluctance to take part in a substantial two-way process for the discussion of the ideas and proposals that emanated from it. I hope that that will change under this new Government at a time when we are at a major constitutional crossroads.

Human Rights and Civil Liberties

Lord Lexden Excerpts

Thursday 2nd July 2015 Lords Chamber

[Lord Lexden (Con)]

My Lords, I have difficulty in getting used to the fact that the noble and learned Lord, Lord Wallace of Tankerness, is no longer addressing us from the Government Front Bench, of which he was such a conspicuous adornment. I thank him for bringing this important debate before us today. I would like to offer just a few comments on some aspects of human rights in his debate.

First, I make clear my support for the European Convention on Human Rights. As is well known, the convention owed much to the legal acumen and drafting skills of an influential Tory, Sir David Maxwell Fyfe—who, by the way, was a man of rather gloomy disposition, prompting a little ditty among his colleagues at the Bar:

“The nearest thing to death in life,

Is David Patrick Maxwell Fyfe”.

Churchill warmly welcomed and indeed applauded the convention. Speaking in Strasbourg on 17 August 1949, he expressed his special pleasure that the European court that was to be established would, in his words,

“depend for the enforcement of its judgments on the individual decisions of the States now banded together in this Council of Europe”.

Among its many contributions to progress in our land, the convention has assisted powerfully in the removal of gross inequalities and social stigmas that so long blighted our society and to which the noble and learned Lord made reference. It has enlarged and protected our freedoms. Speaking in the debate on the Queen’s Speech on 1 June, my noble friend Lord Black of Brentwood, executive director of the Telegraph Media Group, stressed the importance of Article 10 in safeguarding the precious freedom of the press, which politicians are often sorely tempted to try to weaken. Because of the reliance that newspapers have been able to place on Article 10, safeguarding freedom of expression, they have been able to serve us and our democracy more faithfully and fearlessly. There surely could be no more telling or powerful example of the convention’s importance.

A profoundly important process of consultation on the future of human rights legislation in our country is now under way. It is surely essential that this consultation should exclude no political party, organisation or individual that may wish to contribute to it. We need to achieve a wide consensus about the shape of our future arrangements in this fundamental department of our constitutional and legal affairs—indeed, in all departments, as my noble friend Lord Forsyth of Drumlean mentioned earlier today.

It is good to see the phrase “one nation” back in fashion. We owe it, incidentally, not to Disraeli but to Stanley Baldwin, who was the first to use it, saying in a speech on 4 December 1924 that his party, then known as the Unionist Party, needed to bring together,

“those two nations of which Disraeli spoke two generations ago; union among our own people to make one nation of our own people”.

To achieve a one-nation approach for the construction of a British Bill of Rights, fully compatible with the European convention, do not we need to ensure that all parts of our country and all relevant interests within them are fully consulted?

I refer to just one of the crucial issues which needs to feature prominently in the process of consultation—the uneven enforcement of certain rights in our country today. The existence of this issue is in part a consequence of the establishment of devolved legislatures and Executives. Northern Ireland, a part of our country in which I am deeply interested, has been affected particularly significantly. Encouraged by my friend the noble Lord, Lord Lester of Herne Hill, I have on a number of occasions brought before your Lordships’ House the wholly unsatisfactory state of affairs that now exists in Northern Ireland in relation to the law of defamation. For the first time in our history, Northern Ireland has a different libel law from that in England and Wales, because the Northern Ireland Executive refused without giving any reasons to implement the Defamation Act 2013. One most serious and baleful result, as the noble Lord, Lord Lester, recently stressed in a fine lecture, is that publishers have to meet different standards in different parts of the country, even though free speech is a fundamental right. Ought not a fundamental right to be given effect in the same way throughout the realm? As things stand, Northern Ireland seems destined to stand apart from the United Kingdom for years to come.

In November last year, the independent Law Commission in Northern Ireland began a consultation on the law of defamation that ended on 20 February this year. A few weeks later, the Law Commission was effectively shut down. Its work has been subsumed within the Northern Ireland Department of Justice—part of the very Executive who are blocking Northern Ireland’s access to a major right in its current form enjoyed by the rest of us. It is the same story with same-sex marriage. My gay friends in Great Britain can get married if they wish to—my gay friends in Northern Ireland cannot. An application for judicial review has recently been lodged in the Northern Ireland courts. There are other examples of serious disparities in human rights between Northern Ireland and the rest of the country. Are we content that such a state of affairs should continue to exist, or do we want to do something about it? It is an issue that those preparing the ground for a British Bill of Rights must not dodge.

Criminal Justice and Courts Bill

Lord Lexden Excerpts

Monday 20th October 2014 Lords Chamber

We first debated extending the disregard two years ago. There have been real problems, but I now believe that we have a solution. We are now in a position to provide equal treatment to the victims, living and dead, of our past homophobic laws. We can extend the comfort and recognition of wrong treatment that the disregard already brings to the living—to the family, friends, lovers and supporters of those similarly convicted but now dead. I beg to move.

[Lord Lexden (Con)]

My Lords, I am glad to support this amendment, just as I was very glad to support the previous version that my noble friend Lord Sharkey put forward in Committee. As my noble friend reminded us again this evening, in 2012 Parliament made a decision of major importance to the gay community. It made provision in law that all living persons who had been convicted of sexual offences that have subsequently been swept away should have the absolute right to apply to have those unfair convictions disregarded. The statute book was disfigured in 1885 by the Criminal Law Amendment Act, which contained a notorious provision, smuggled into the legislation late at night, which criminalised gay men—not gay women—for the first time for consensual sexual acts in private. That provision should never have been passed. It, and other discriminatory laws were repealed some 80 years later, after they had wrecked the lives of thousands of fine gay men. The majority of them are now dead and it must surely be right that the arrangements introduced in 2012 in respect of living persons should be extended so that the families of those no longer alive can seek true justice for their forebears, and so gain satisfaction and peace of mind that such belated justice can bring.

On behalf of the gay community I thank my noble friend for the care with which, since Committee, he has discussed his amendment, as he has told us, with Ministers and officials, and modified it in the light of their comments. This amendment is needed to complete a laudable rectification of great injustice. But it will do something else of great importance, as my noble friend Lord Black of Brentwood, who cannot be here this evening, made clear in Committee. It would signal to the many countries in the Commonwealth which maintain oppressive anti-gay laws for which this country was originally responsible that Britain now wholly rejects unjust and oppressive treatment of gay people and, so far as is possible, has made amends for terrible, terrible past errors. I hope that the Government will look favourably on this amendment.

[Lord Beecham]

My Lords, I join the noble Lord, Lord Lexden, in supporting this amendment. I hope the Government will look at it sympathetically. In previous debates, the Minister had some reservations about costs and the like, which have now been addressed by the amendment of the noble Lord, Lord Sharkey. I very much hope that the Minister will indicate that the Government are prepared to accept that.

If there remain any areas of doubt, then perhaps he would undertake to bring the matter back at Third Reading so that any potential difficulties or shortcomings might be addressed. It is clearly not easy to do that after 10 pm on the first day on Report. I hope we can resolve any remaining doubts at Third Reading, though if the Minister is able to accept the amendment this evening then so much the better.

Criminal Justice and Courts Bill

Lord Lexden Excerpts

Monday 21st July 2014 Lords Chamber

[Lord Sharkey]

My Lords, next Wednesday night there will be a late second promenade concert at the Royal Albert Hall. There will be only one work in this prom: “A Man from the Future” by the Pet Shop Boys, who I am sure are familiar to all your Lordships. The piece is based on the life of Alan Turing and is an orchestral biography for electronics, orchestra, choir and narrator.

The piece as it will be performed is different from its final draft, because after the final draft was completed Alan Turing was granted a posthumous royal pardon. This pardon, for homosexual acts that would not now be illegal, left some with mixed feelings. Andrew Hodges, Turing’s biographer, on whose work much of the libretto is based, said about the pardon:

“I don’t think it’s right in principle to make an exception for one person on the grounds of what they did for the State. It should be for everyone who was in that situation”.

Neil Tennant and Chris Lowe—the Pet Shop Boys, as your Lordships will know—will explicitly address this contradiction in the finale of Wednesday’s performance. They say:

“We had to rewrite the ending to point out that the convictions of tens of thousands of other men remain and that hasn’t been discussed”.

They are right to raise this issue. Under the dreadful Labouchère amendment of 1885 and other equally dreadful laws, 75,000 men were convicted of homosexual acts. These laws were eventually repealed in the 1960s.

In 2012 this Government did something to put right this injustice. We passed the Protection of Freedoms Act, which allowed all those convicted under those old statutes to apply to have their convictions disregarded. This would happen if it could be demonstrated that the acts for which they were convicted would not now be illegal. Of the 75,000 men convicted under the now-repealed Acts, 16,000 were still alive and could now apply to have their convictions disregarded. This provides real help and comfort for them, their families, relatives, friends and loved ones, and helps to put right a serious and enduring historical injustice.

However, this still leaves the 59,000 men similarly convicted but now dead. In March 2012 I tried to do something about this. I tried to amend the Protection of Freedoms Act, via the LASPO Bill that was then before us. I wanted to extend the right to have a conviction disregarded to apply to those 59,000 men. I wanted friends, relatives or supporters to be able to apply for a disregard posthumously on their behalf. I said then that I believed that this simple extension was fair and right in principle. I wanted equality of treatment for all those convicted under the cruel Labouchère amendment and other laws, whether alive or dead. I believed then, as I still do, that this would go some way towards making amends to the many thousands of men who were cruelly and unjustly persecuted simply for being gay.

The Government were not persuaded. The Minister said in reply:

“I do not believe that the provisions for disregarding convictions, which are concerned with the practical consequences of conviction, are an appropriate means of putting right the wrongs done to people who are no longer alive to suffer those consequences. As my noble friend himself points out, the numbers involved are potentially very large”.—[Official Report, 20/3/12; col. 876.]

This seems to be very mean-spirited and wholly legalistic. It entirely fails to take into account the feelings of friends, relatives and supporters of those convicted but now dead. It fails entirely to acknowledge a moral duty to help put right a serious injustice. It also devalues the disregard for those convicted and still alive. The purpose of the disregard is not just to help with the practical consequences; it is also to publicly acknowledge a very grave injustice.

The last sentence of the Minister’s response seemed to imply a worry about being overwhelmed by applications for a disregard. I thought that very unlikely. Now there is some concrete evidence to show exactly how unlikely it is. The Protection of Freedoms Act was commenced in October 2012. In a Written Answer of last Thursday, my noble friend Lord Taylor of Holbeach gave the latest figures for application for disregard. There are 16,000 men who may apply. Since the Act commenced, in total 147 have applied. Of these, 13 applied in the last three months. This is not an avalanche. The MoJ has confirmed to me that it is not able to put a cost on processing these applications because they have been dealt with within existing resources.

In conversations I had with the Minister and his officials in 2012, the MoJ raised another objection to the idea of a posthumous disregard. It was concerned that many of the posthumous cases might be so old that there would be no safe way of demonstrating that the conviction in question involved consensual and over-age sex. This did not seem to me at the time to be a valid argument and it still does not. The essence of the application process is that the applicant must supply evidence to convince the Secretary of State that the historical offence would not now be an offence at all. That applies to the living. It would also apply to applications on behalf of the dead.

Our amendment simply sets out to give equal treatment to all those gay men convicted under the cruel and homophobic Labouchère amendment and other Acts. It sets out to treat the dead and the living equally. It would bring closure to an extremely unhappy period in our criminal law. It would give comfort to the relatives, friends and supporters of those gay men convicted but now dead. It would help to put right a serious historical injustice.

I hope that this is an uncontroversial measure and that my noble friend will now take a sympathetic view. It would be very good to be able to attend Wednesday’s prom in the knowledge that we had been able to bring a satisfactory end to this long-running injustice.

[Lord Lexden (Con)]

My Lords, I was very glad indeed to append my name to this important amendment. My noble friend Lord Sharkey has explained its aims and objectives in full and with his customary clarity.

As he made clear, a number of sexual offences have been removed from the statute book in recent years, reflecting in many cases a strong belief that they should never have been crimes in the first place. As my noble friend explained, Parliament has now made it possible for those convicted of such offences who are still alive to apply to have their convictions disregarded. My noble friend’s amendment would enable such applications to be extended so that they could be put forward on behalf of those who are dead.

My noble friend has called for this extension before. Concern has been expressed that it might lead to a flood of applications. That seems extremely unlikely in view of what has happened now that living people have the right to have their convictions disregarded. No large number of applications has been lodged. There is therefore no reason to suppose that the right would be widely invoked by the families and friends of those who had their reputations blackened in their lifetimes but would not have been hauled before the courts at all if lawmakers in the past had not from time to time made unfortunate decisions. Parliament has recognised that that should be put right as regards the living. It should now extend that principle to cover all who suffered grave hardship, as the amendment provides. Justice demands it.

Our country’s lawmakers never blundered more seriously in the sphere of sexual offences than when they passed the Criminal Law Amendment Act 1885. As a historian of the late 19th century and co-author of a book on the very year in question, I never cease to deplore what happened in a thinly attended House of Commons in the small hours of 6 August 1885, with the Summer Recess looming. It was to prove to be a fateful date in the history of English criminal jurisprudence. Suddenly, without warning or anything resembling adequate discussion, homosexual men were made subject for the first time to harsh penalties for purely private sexual activity that was deemed to be grossly indecent.

It is well known that the legislation as introduced into Parliament had nothing whatever to do with homosexuality. Without most people noticing, an amendment was brought forward by a wayward radical Back-Bencher, Henry Labouchère, which made indecencies between adult males, in private as well as in public, a punishable offence. Labouchère proposed a maximum penalty of one year’s imprisonment. To his eternal shame, the incumbent Tory Attorney-General, in accepting the amendment, doubled the penalty to two years, with or without hard labour, at the judge’s discretion. Thus was created the infamous “blackmailer’s charter”, as it was immediately dubbed, and thus was created a road of great suffering and hardship—a road that was, in Oscar Wilde’s famous words,

“long, and red with monstrous martyrdoms”.

It is not least because so many lives of great men such as Alan Turing, and others unremembered for public achievement, were wrecked as a result of that legislation that we should consider this amendment with favour. It would register and symbolise Parliament’s recognition that a grave mistake was made on 6 August 1885, when a malign change was hurriedly agreed and then passed into law without further consideration in either House of Parliament on 1 January 1886.

There are, of course, other reasons why the amendment should command support, but Parliament’s black day in August 1885 is for me one of the most compelling. I hope that the Government will accept the amendment.

[Lord Faulkner of Worcester (Lab)]

My Lords, I, too, have added my name to the amendment of the noble Lord, Lord Sharkey, because I am very happy to be a co-sponsor of his Private Member’s Bill to secure the pardon for Alan Turing, which fortunately needed to make no further progress in Parliament because the Government granted that pardon. I do not want to say any more, other than that I agreed with every word that the noble Lord, Lord Sharkey, and, indeed, Lord Lexden, said. This is a case that deserves widespread support. I hope that colleagues on my own Front Bench will support it and that the Government will respond.

Elections: Voting Arrangements

Lord Lexden Excerpts

Wednesday 2nd March 2011 Lords Chamber

[Lord Lexden]

My Lords, my brief contribution to this evening’s important debate might perhaps be regarded as having a slightly maidenly tinge. I have spoken once before since having the privilege of joining this noble House, but these are the first words since then that I have uttered in this Chamber, which Disraeli had chiefly in mind when he compared this House to the Elysian fields—that paradise in which heroes of the ancient world reposed for all eternity. Disraeli was firmly opposed to the creation of a mass electorate, convinced that the right to vote should be tightly restricted. However, above all, this great hero of the Tories believed that his party should seek to master whatever sets of circumstances might be created by the remorseless process of change to which, as he often pointed out, this progressive country is always subject.

I do not think it can be said that my party has so far done spectacularly well in dealing with the circumstances created by the enfranchisement of certain British citizens living permanently abroad, and nor perhaps have other parties. The most striking feature of the current overseas voting arrangements is how few people have so far taken advantage of them. Of those living overseas who are eligible to take part in our elections, no more than some 31,000 are actually registered today, as my noble friend Lord Astor pointed out. That is exactly the same number as 20 years ago after the Representation of the People Act 1989 had extended to 20 years—up from the initial five—the period during which our fellow citizens abroad can apply to vote in UK parliamentary and European elections. I was greatly struck by the comment of my noble friend Lord Lester of Herne Hill about the lack of any rationale for these different periods. As he has told us, no rationale has ever been offered and it would be very useful to have one because, as other noble Lords have pointed out, it is of serious concern that so few British citizens living abroad have come forward to take up the right to vote here, which was conferred on them in the 1980s.

As far as my party is concerned, this state of affairs does not reflect indifference on the part of our fellow citizens living abroad. There are lively and successful Conservative associations in many overseas countries—some of which I have had the pleasure of visiting—and they form part of a network which is advised and assisted by the highly regarded Conservatives Abroad office in Tory headquarters. As one of our leading overseas members has recently said, “Within their host countries, expatriates meet and celebrate their Britishness in all types of organisations, associations, churches and schools”.

When the Conservative Party's flourishing overseas associations are asked why so few people are actually registered to vote—I think this is true of other parties—they tend to answer with one accord that the process of registration is too complex and cumbersome. There are other factors, but registration is so often the dominant one. The statutory requirements for registration are not easy to fulfil, as the noble Viscount, Lord Astor, explained in his opening speech. Again, as my noble friend Lord Astor pointed out, the time needed to fulfil the requirements makes it virtually impossible to register close to an election. The position would be greatly eased if electronic registration were introduced. Of course, there would be many problems attached to this, not least fraud, but many other countries have overcome them successfully. There might perhaps be merit in asking the Electoral Commission to examine the issues thoroughly and produce a full report which could help to inform close discussion of the ways in which more of our fellow citizens abroad could exercise more easily the important right that they have been given.

Against such a background it might also be timely to reconsider the current rules which disenfranchise all our fellow citizens who have lived overseas for more than 15 years. Subject to the views of the noble Viscount, Lord Astor, to whom we are greatly indebted for this debate, I ask the Minister to consider these suggestions.