Northern Ireland (Ministers, Elections and Petitions of Concern) Bill

Lord Mackay of Clashfern Excerpts

Report stage
Wednesday 19th January 2022 Lords Chamber

[Baroness Ritchie of Downpatrick (Lab)]

My Lords, it is a pleasure to follow the noble Lord, Lord Bew, and I am only sorry that when I took politics at Queen’s he was not a lecturer then; he came in several years later. His speech was very interesting and I think we are all much better informed because of it.

It will be no surprise to Members of your Lordships’ House that I support the protocol. I say that rather advisedly because it is a matter of contention in Northern Ireland. We must remember that the protocol arose out of Brexit and that is the fundamental issue. The people of Northern Ireland, including me, voted to reject Brexit and they wanted to remain in the European Union, but history is history, and we have to respect particular outcomes.

Therefore, in this context, it is vital that we see a successful outcome to the current negotiations between the UK and the EU. We want to see a successful outcome covering such important issues for the people in Northern Ireland as the SPS veterinary agreements, medicines, customs issues and the democratic deficit. The UK Government published a Command Paper back in July. I did not agree with the content. The European Union then produced a series of non-papers—as they are characterised—in October. Both sets of papers naturally form the basis for the ongoing negotiations.

Quite honestly, I think that it is preferable at this stage to allow the negotiations to take their course. Can the Minister advise us on what stage they are at? The Minister and I, along with the noble Lords, Lord Empey and Lord Dodds, were at a meeting yesterday with the Minister for Europe, Chris Heaton-Harris, who sits in the other place. He could not necessarily give a timetable for the completion of the negotiations, but it is vital that they are dealt with in an expeditious manner and provide solutions for all the people in Northern Ireland, including the business community and wider society.

I am a supporter of the protocol, but I want to see those—let us call them—mitigations whereby the people of Northern Ireland are able to trade within the UK internal market and the EU single market and we are all able to realise the opportunities. We have already seen those benefits so it is important that they are documented and emphasised in terms of new businesses and new opportunities for investment. They are there.

Those in the business community do not want to be saddled with the politics of this issue. They want to see business opportunities opening up in this post-Covid situation and the whole community in Northern Ireland prospering. It is much better that we await the outcome of these negotiations, which I feel should be dealt with in a very expeditious manner. Many people have been talking about instability. It is those who were perhaps involved in actions of instability who are creating the instability.

It is important that we refrain from such language and try to go back to encouraging both participants in the negotiations to complete them as quickly as possible, covering all those areas, so that outcomes are achieved that bring an improvement for all the people of Northern Ireland.

[Lord Mackay of Clashfern (Con)]

My Lords, Northern Ireland has been a matter that I have thought of as very difficult in this situation for quite a long time. I believe that the explanations that have just been given by the two speakers who went before me are vital in trying to get a settlement that will be sufficiently good for all the interests in Northern Ireland. If we are going to do that, it will be by a pretty full solution to a difficult problem.

In my view, there are no reasons just now to create more difficulty than we have to deal with. Therefore, I am very much in favour of what has been said in regard to the law about this and particularly the negotiations situation, which we need to solve. Negotiation is the only way in which we will get this right, and I hope and pray that the negotiations will be entirely successful and that the people of Northern Ireland will get a bargain that will work for them from now on.

[Lord Dodds of Duncairn (DUP)]

My Lords, it is a pleasure to follow the noble and learned Lord. I share his wish for a successful outcome to the negotiations that addresses the fundamental problems that are part of the Northern Ireland protocol. However, I fear that time is very short now and there is little willingness, from what I can see, on the part of the EU to address the fundamental points. It has put forward various mitigations but none of them addresses the governance issue which we are talking about today, none of them addresses the democratic deficit, and none of them addresses the fact that part of this United Kingdom in the 21st century will have laws made for it by a foreign institution, in its interests, over which no elected representation of that part of the United Kingdom has any vote or say. That is an outrageous position.

We have to address this point. The points that have been set out in the amendment proposed by the noble Baroness, Lady Hoey, have gone to the heart of trying to address this matter by saying that we have a problem. I accept what the noble Lord, Lord Bew, said, that the most recent agreement had in it something that Theresa May’s agreement did not, which really was a role for the Assembly. He is right and reminds us that when people now tell us that Theresa May’s deal was a great deal for unionism and we should have accepted it, that was not the case. It did not have any democratic legitimacy, it created a regulatory border down the Irish Sea and it would have put Northern Ireland completely inside the customs union. A lot of revisionism goes on over these matters.

The problem is that although the agreement gives a role to the Assembly, it does not give it any democratic say. The issue of the democratic deficit cannot go away. You cannot have citizens of this part of the fifth-biggest economy of the world having laws made for them that separate us from the rest of the UK—and will separate us more and more over the years to come—and create differences, not just small regulatory ones but massive differences, to our economy when we have to align with the European Union while England, Scotland and Wales go down a different path.

European Union (Withdrawal Agreement) Bill

Lord Mackay of Clashfern Excerpts

Report stage & Report stage (Hansard): House of Lords & Report: 1st sitting: House of Lords & Report: 1st sitting
Monday 20th January 2020 Lords Chamber

[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.

--- Later in debate ---

[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.

--- Later in debate ---

Moved by

[Lord Mackay of Clashfern]

14: Clause 26, page 30, line 20, leave out paragraph (d) and insert—
“(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

Tuesday 5th November 2019 Lords Chamber

[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

Thursday 17th October 2019 Lords Chamber

[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.