European Union (Withdrawal Agreement) Bill
Lord Mackay of Clashfern ExcerptsMonday 20th January 2020
(4 years, 9 months ago)
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Lord Beith
My Lords, I rise to move Amendment 12. This amendment will not delay Brexit. It will not even delay this Bill, which is going to the Commons in any case. However, it will avoid a great deal of legal confusion and safeguard the independence of the judiciary. It reflects concerns held by the Constitution Committee, several members of which have taken part in the debates, including of course our chair, the noble Baroness, Lady Taylor. The background is that European Court of Justice case law will be relevant in interpreting retained European law. We recognised that in the 2018 withdrawal Act and made provision for it to be dealt with, so that the Supreme Court and the High Court of the Justiciary would be able to depart from EU case law when they thought it right to do so.
Clause 26 of this Bill gives Ministers very wide regulation-making powers to decide which courts can depart from CJEU case law. It could be any court, right down to the magistrates’ court, the county court or the sheriff court. Through unamendable statutory instruments, Ministers could decide what test the courts should apply when considering whether to depart from EU case law. Ministers could effectively direct the courts to disapply case law in specified circumstances. Bear in mind that lower courts cannot bind other courts, so we will have conflicting interpretations and a lot more litigation as a result.
These are not appropriate powers to be exercised by regulation. They open the way to ministerial interference with the courts. If any of this needs to be done, it should be done in primary legislation. I would have been happy to see provision in the Bill to extend the powers in the 2018 Act to the Appeal Court and the Inner House of the Court of Session, for example. However, I have tabled these amendments on Report because last week’s proceedings in Committee were inconclusive. I said then that when such serious concerns are raised by so many noble and learned Lords, including those with a lifetime of experience in interpreting the law, Ministers need to think again and respond.
I encouraged the noble and learned Lord, Lord Mackay of Clashfern, to use his skills when he spoke in the debate to think of ways in which we could get through this and to encourage Ministers to do so, which he certainly has. Amendment 14, his valuable amendment in this group, would be very helpful. It does not do all the things I sought to do by deleting some of these powers, but it would very much clarify the situation I am worried about, of lower courts making rulings which conflict with those of other courts. If the noble and learned Lord decides that he wants to press his amendment to a vote, in circumstances which I will refer to in a moment, I would be happy to make way by withdrawing mine in due course to enable him to do so. I hope he can make it clear to us when he explains his amendment whether that is the course of action he wishes to take.
I said that reconsideration was necessary. I believe that such reconsideration had taken place and that the noble and learned Lord, Lord Keen of Elie, was ready to move an amendment at Third Reading which would have met all our concerns. I have a copy of that draft amendment. The noble and learned Lord was expected to wind up this debate, but is no longer doing so. That seems very significant to me. I think he knows full well that the Bill as it stands would be a source of legal confusion and would lead to this danger of Ministers having the power to impose an unspecified new legal test on the courts, a test which could not be amended by Parliament. Parliament is about to make bad law which Ministers know to be bad. I am afraid that my conclusion is that No. 10 Downing Street is in a sulk because this House carried an earlier amendment to the Bill. The noble and learned Lord, Lord Keen, is an entirely honourable man who serves the House very well and is always a man of his word. I think his absence from the debate at this stage indicates that some exchanges in the Government have led to this House being asked to make law that it knows to be bad. I beg to move.
Lord Mackay of Clashfern (Con)
My Lords, when we debated this clause in Committee, we looked at two key provisions: which courts should be able to look at this matter, and what the test should be. I was particularly concerned about saying what the test should be, because I regarded that as an interference with judicial independence—and I still regard it as such. If Parliament sets out the test, as it did in the 2018 Act, for the Supreme Court and the High Court of the Justiciary, that is the law and the courts can therefore take it and act on it. However, it seemed to me and a number of your Lordships that it was not proper for a Minister to deal with the judiciary in these circumstances. Having the Minister set what the test should be by regulation really should not happen. That was the conclusion of the debate in Committee, generally speaking.
When I thought over that, I concluded that we were blocking altogether what the Government were seeking to achieve. I therefore felt strongly that it was my responsibility, along with others, to see whether there was some other way of dealing with this problem. I have thought about it a good deal and, as I understand it, the Prime Minister said that he was in favour of every court being able to deal with this matter. I was anxious that my proposal should achieve that, if at all possible, because he had said that in good faith as part of his election campaign. Therefore, I felt that I should try to think up an amendment which gave that power. Amendment 14 does that because it allows any court in the United Kingdom to consider this matter and make a judgment on it. However, because of the nature of the judgment, there is a requirement that it be referred to the Supreme Court, which should have a power to grant the result, on condition that it has a power not to hear it if it feels that the application was not very substantial or very good, as it has for many appeals in the ordinary course of events.
I can see that having that sort of burden on the Supreme Court might be rather disagreeable. Therefore, it was quite reasonable to think of giving that power, the result of the reporting power, to the Court of Appeal in England—I think Wales and Northern Ireland would also be covered by that—and to the Inner House of the Court of Session in Scotland, which is its equivalent. The High Court of Justiciary would of course also have that responsibility in criminal cases. I am very open to negotiating how this should happen, but I venture to think it important that we consider this issue carefully. I hope that your Lordships may feel that we should pass this amendment.
Lord Beith
My Lords we are no further forward at all on which courts it is intended shall acquire the power; on what the test they will be required to carry out is; or on any reliable process by which we can ensure that Ministers do not get involved in specifying the circumstances in which courts, at any level, can depart from existing case law. The beauty of the amendment in the name of the noble and learned Lord, Lord Mackay of Clashfern, is, as he explained, that it seeks to satisfy the Government’s objective—as restated now by the noble Lord, Lord Callanan—that any court in the land should be able to engage in this process. This is not a very wise thing to do but, if it is going to be done, it should be done with the protection suggested by the noble and learned Lord: that it should involve a reference process which the Supreme Court can take up if it sees reason to do so. On that basis, and knowing in what high regard the noble and learned Lord is held, I am content to seek the leave of the House to withdraw my amendment, so as to facilitate him pressing his.
Lord Mackay of Clashfern
It would be right for the noble Lord, Lord Beith, to continue with his two amendments, because I am proposing the option in my amendment in the event of his disappearing. I think I am right in saying that. I may be wrong; I stand to be corrected. I understood from the Public Bill Office that I did not need to put my name to Amendments 12 and 13—in fact I could not, because there were four there already. It may be that those amendments should just stand.
Lord Beith
The consequence of my amendment, if it was carried, would be that the amendment in the name of the noble and learned, Lord, Lord Mackay, could not then be taken, because the words upon which it bites would have been removed. I would be content to divide on my amendment, to test the opinion of the House.
“(d) after subsection (5) insert—“(5A) Where a court or tribunal other than the Supreme Court or the High Court of Justiciary is of the opinion that any retained EU case law that is relevant to an issue before it should be departed from, that court or tribunal must—(i) in its judgment set out the reasons for that opinion, and(ii) refer the case to the Supreme Court or, as appropriate, the High Court of Justiciary,and if the Supreme Court or High Court of Justiciary grants leave for the case to proceed, it must decide whether to depart from the EU case law on the issue before it.”, and”Member’s explanatory statement
This amendment would introduce a procedure which could be initiated in any court of the United Kingdom and result in a decision which is authoritative in the United Kingdom without any interference with the independence of the judiciary.
Lord Mackay of Clashfern
My Lords, I have spoken to and certainly want to move the amendment. It is with great regret that I am voting against the Government, but that is what I want to do.
Thomas Cook
Lord Mackay of Clashfern Excerpts(4 years, 12 months ago)
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Lord Duncan of Springbank
It is an important question to understand. The notion of a cap is to look at it the other way around. We need to look at the definition of the challenges which are being experienced and let those be the criteria by which the ultimate cap is established, because the important thing is to work out who falls into the category of those severely injured, incapacitated or who have lost life. That would be assessed first, and will ultimately determine the cap, but it cannot be open-ended, because by its nature it must balance out the needs of taxpayers alongside our commitment to those who have suffered through this. Regarding the wider question of the evaluation, if the noble Lord will allow me, I will write to him specifically on that point, as I am not clear on the answer.
Lord Mackay of Clashfern (Con)
Can my noble friend tell us the nature of the liability that was not covered by insurance? People need to know that; after all, some will be going on their Christmas holidays in circumstances such as this, and some may be going earlier for other reasons. We need to know exactly what gave rise to this uninsured liability. I do not know whether Thomas Cook did, but most travel agents require you to have travel insurance. This must be some kind of claim outside the scope of ordinary travel insurance. If there is an identifiable category that is apt to recur, people need to be warned of it.
Lord Duncan of Springbank
The noble and learned Lord raises a point the sad answer to which is straightforward: in this regard Thomas Cook did not set out categories but quantums. Any bills above a particular quantum would be met by the wider insurance, if they were particularly high, but those which fell below, it self-insured. The law allows it to self-insure, so the problem we have now is that, while I wish I could identify individual instances where this could be done, sadly that is not possible. This is why in the new Parliament we will have to look at this very carefully, to ensure that we have an answer to the very question that the noble and learned Lord asked. If we do not do that, of course people will be travelling without the confidence that they are insured when they believe that they are.
Northern Ireland (Executive Formation etc) Act 2019: Section 3(5)
Lord Mackay of Clashfern Excerpts(5 years ago)
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Lord Mackay of Clashfern (Con)
My Lords, I take part in the debate because a gentleman in Northern Ireland asked me to do so. As your Lordships know, I was responsible for the judicial system in Northern Ireland when it was extremely difficult because the danger to life for people accepting office was very real. Personally, I am very concerned so far as Northern Ireland is concerned.
First, if the Assembly assembles on Monday, and if an Executive are in place on Tuesday, all the dangers in this business will disappear. I therefore emphasise as best as I can the responsibility resting on the Members of the Assembly, and on the Members who could constitute an Executive, to take their opportunity to act—otherwise, they pose a dangerous risk to the pregnant women of Northern Ireland. I will deal with this issue in a minute or two but I want to emphasise that point. Surely this should weigh with the people responsible so that, on Tuesday, we have a working Executive. Then, all the difficulty described in considerable detail by the noble Lord, Lord Morrow, will not, in fact, take place.
If all that does not happen, the danger is considerable because the 1861 Act, along with the relevant provisions, will be taken out of the law of Northern Ireland. So far as I know, no other law protects an embryo up to the time when it is sufficiently mature to be delivered in a way that will bring forth life. Therefore, the object of this provision, which was put into Section 9 of the Act, was to help the women of Northern Ireland. I cannot think of a greater danger to the women of Northern Ireland than allowing unrestricted abortion again. It is a very serious matter. It does not affect clinics and so on; as has been pointed out, no real protection is available through the clinics because they escape registration if one employee is employed by the National Health Service.
Apart from that law, there is no protection whatever for embryos up to the point of sufficient maturity for life. Therefore, the backstreet abortions that were the great burden of life before the Bill of the noble Lord, Lord Steel, will again be possible in Northern Ireland. I do not know, and I do not suppose many of your Lordships know, how many of these would happen, but the Government and those responsible for the management of government in Northern Ireland will carry the responsibility if that happens.
Therefore, I will do my utmost to persuade the Members of the Assembly to meet on Monday and constitute an Executive on Tuesday, because then all this difficulty will immediately disappear.