Strategic Lawsuits against Public Participation

Lord Lisvane Excerpts

Thursday 1st December 2022 Lords Chamber

[Lord Stewart of Dirleton (Con)]

My Lords, it is the privilege of the legal profession to act for the weak against the powerful. On the specific point which the noble Baroness raises, I will write to her. I can assure her and the rest of the House that the provisions against SLAPPs are intended to be drawn widely. She brings forward the important question of whether there is an imbalance against women in the steps being taken in this abusive process. I am grateful to her and will correspond with her.

[Lord Lisvane (CB)]

My Lords, awaiting a suitable legislative vehicle is an ancient excuse—or possibly reason—for not legislating, but, with respect, I am a little sceptical about the Minister’s assertion that inserting these provisions in an economic crime measure would, as it were, narrow them. Putting these provisions in a Bill which is largely about a different subject does not, of itself, narrow them; the key thing is how those provisions themselves are drafted.

Queen’s Speech

Lord Lisvane Excerpts

Thursday 13th May 2021 Lords Chamber

[Lord Lisvane (CB) [V]]

My Lords, I add my warm congratulations to those of others and welcome the noble Baroness, Lady Fraser of Craigmaddie, and the noble Baroness, Lady Merron, who I was very glad to know in a previous life.

The Covid-19 pandemic has had a serious effect on the legislative process in terms of quantity of proposals, shortness of notice, difficulty of scrutiny and, insidiously, the confusion of guidance or ministerial instruction with the law. The report published today by the Constitution Committee, chaired by the noble Baroness, Lady Taylor of Bolton, has provided an excellent analysis of the effect on Parliament and has given us our own parliamentary road map, as it were, for the future. I much look forward to hearing from the noble Baroness in a moment or two. It is vital that those baneful legislative effects of the pandemic should not persist, but that does not mean that all will be fine once the dial is reset.

On Tuesday, we were told of some 30 Bills that Parliament will be invited to consider in just a few months of this Session. So I think it is reasonable to ask how well Parliament is equipped to pass good law. However welcome it may be to have, in the often-used phrase, “taken back control” or taken back sovereignty—whatever sovereignty may really mean in practice—the dice are ever more heavily loaded in favour of the Executive, as my noble and learned friend Lord Judge pointed out so compellingly.

I am not being unrealistic, of course. For years, Bills have not really been draft legislation; they have been word for word what the Government of the day wish to see upon the statute book. But the rules of the game have been changing. We have extensive delegation of powers to Ministers in SIs, with minimal parliamentary scrutiny, Henry VIII clauses which can negate scrutiny of primary legislation, and the use of delegated legislation to provide for matters of serious policy. We may pride ourselves on line-by-line scrutiny, about which I have my doubts, but if we really wish to equip Parliament to pass legislation that is respected and which maintains the accountability of Ministers and the authority of Parliament, we need to do a lot more than just reset the dial.

Let me turn to the union for a moment. Whatever the prospects for indyref2, the debate on the future of the union remains focused upon Scotland, and it remains binary. On the one hand, there is the possibility—remote, perhaps, but nevertheless—of independence and, on the other, of carrying on much as we are, with the hope that increased investment and joint projects will keep the centrifugal forces in check. But what will remain in the eyes of many will be what I have described to your Lordships before as the imperial condescension of the UK’s central government.

A symptom may be the term “devolution”, which I suggest is rapidly becoming outdated. If you devolve, you are giving away part of what you control. If you are the owner of the cake and you decide how much to give away, however tasty the morsel, this will not stop recipients being rightly resentful. I suggest that what is needed is a reshaping of the relationships, powers and responsibilities of the four members of the union. This has been the aim of the Constitution Reform Group, convened by the Marquess of Salisbury, a distinguished former Leader of your Lordships’ House, and of which I am a member. In the last Parliament, I introduced the group’s act of union Bill. In this Session, I hope to put before your Lordships a greatly improved and developed version of the Bill, seeking to replace the present top-down approach, where the centre decides what powers are to be given to the other parts of the UK, with a bottom-up approach in which the four parts agree upon the powers they need to serve their citizens best and to take a full part in a union which has been astonishingly successful, culturally and economically.

My last point is constitutional, in that it relates to our parliamentary home. The sound of the restoration-and-renewal can still being kicked down the road is increasingly depressing. I have a personal interest in this, having commissioned the first condition survey, which initiated the whole process the best part of a decade ago. All the issues have been well exposed and, it seems, endlessly discussed. The questions of political embarrassment and the impact on the public finances are the same as they were 70 years ago, although of course the cost of not having tackled the problem for all these years now has to be added, month by month, inexorably. The reality that will not go away is that, if we have a catastrophic failure of services, we will probably not be able to remain in the Palace of Westminster, and all the decisions that have been put off for so long will come to a head in the space of 24 hours. In my maiden speech in your Lordships’ House I urged rapid progress. And that was six years ago.

Queen’s Speech

Lord Lisvane Excerpts

Wednesday 8th January 2020 Lords Chamber

[Lord Lisvane (CB)]

My Lords, your Lordships will recall that, over the centuries, Parliaments have been given nicknames to reflect their character. In 1388, there was the Wonder-Working Parliament—if only. In 1404, the Dunces’ Parliament was so called because—this will please my noble and learned friends—upon the instructions of King Henry IV it contained no lawyers.

So what shall we call the 2017 Parliament? Possibly the Gridlocked Parliament, but it was also a Parliament which saw well-established constitutional conventions and understandings ignored or trashed, the actions of a Prime Minister in the high duty of advising his Sovereign found to be unlawful and, in the House of Commons, the explicit wording of certain Standing Orders made subject to imaginative reinterpretation. We do not yet know what long-term damage has been done to our constitutional arrangements but of one thing we can be sure: there are some expensive noises coming from the engine.

I will swiftly touch on four issues. First, I warmly welcome the undertaking in the gracious Speech that the Fixed-term Parliaments Act will be repealed. That Act will go unlamented to its legislative grave but, in doing so, it may pose an interesting problem. The Act removed the discretionary prerogative power of dissolution; presumably, that must be restored in terms. I shall be very interested to see how the repeal Bill defines the nature and extent of those prerogative powers and whether there are implications for other aspects of the prerogative.

My second issue is the routine surrender of parliamentary power to the Executive by the extent of delegated powers granted to Ministers. This is a sad story which will no doubt be continued by the many Bills foreshadowed in the gracious Speech: extensive powers delegated to Ministers, including powers to amend primary legislation, often with little effective parliamentary scrutiny, often to achieve ends which are not made explicit to Parliament when the powers are granted, and all too often upon the criterion that a Minister thinks that such provision is “appropriate”—that baneful word—not “required”, not “necessary” but merely upon the unsupported judgment of a Minister of the present Administration, or of any future Administration, while the powers remain upon the statute book.

Your Lordships are sensitised to these issues, particularly by the excellent work of the Delegated Powers Committee, but there appears to be no similar sensitivity at the other end of the building, so the legislative power of Parliament continues to drain away. Let us hope that in this Parliament—an appropriate expression has just come to mind—we might consider “taking back control”.

Noble Lords, especially noble and learned Lords, have considered, and will consider, the implications of the Supreme Court judgment on prorogation. Tempted as I am, I will take only one aspect of that judgment for my third issue. For some years in my previous life, I was closely involved in protecting “proceedings in Parliament”, in the words of Article 9 of the Bill of Rights, from incursion or encroachment by the courts. This often involved complex issues.

As the Supreme Court quite rightly pointed out, the Bill of Rights is statute law and so falls to the courts to interpret but, of course, there is room for more than one opinion on the matter. It is a close call but, on balance, I think the court, in paragraph 69 of the judgment, was right to conclude that it was not precluded by Article 9 from considering the validity of the prorogation. I did, though, have the mischievous thought as to what the situation would be if, the ceremony of Prorogation not being considered by the Supreme Court to be a proceeding in Parliament, a Member of your Lordships’ House were, during that ceremony, to interrupt proceedings with words which were not only disorderly but actionable. Would he or she be protected by absolute privilege, as in a proceeding in Parliament? Perhaps it would be best for such a thing to remain in the realm of hypothesis.

My final issue is the preservation of the union. This is becoming a matter of increasing concern, and the centrifugal forces pulling our nation apart are ever greater. Noble Lords may recall that, in the last Parliament, I introduced the Act of Union Bill. That Bill resulted from the extensive work of the Constitution Reform Group, founded and chaired by the distinguished former Member—indeed Leader—of your Lordships’ House, Lord Salisbury.

The Bill sought a new devolution settlement—indeed, a new constitutional settlement for the United Kingdom —with the sharing of powers and responsibilities on a bottom-up, not top-down, basis and avoiding what I have described as the imperial condescension of Whitehall. The group has continued and broadened its work and, in addition to its membership from several parties and from none, it now also draws upon the help and advice of some senior figures in the world of finance and, I am glad to say, former First Ministers of Scotland, Wales and Northern Ireland, as well as of a great number of conferences and seminars.

I hope to introduce a new and improved version of the Bill in the present Parliament. I hope that, at the very least, it will support continuing serious debate about the future of the union and that, at need, it will provide a plan B; with the passing months this seems ever more necessary.