Dissolution and Calling of Parliament Bill

Lord Marks of Henley-on-Thames Excerpts

Report stage
Wednesday 9th February 2022 Lords Chamber

[Lord Howard of Lympne (Con)]

The answer to the noble Baroness is this: if legislation is put before the House of Commons and it fails because there is no simple majority for it, there is a simple answer—the legislation fails. You do not have a situation that could go on for years in which a Government remain in office in a state of paralysis because that is what a majority of the House of Commons wants. That is the mischief that would arise in relation to this Bill.

[Lord Marks of Henley-on-Thames (LD)]

But why should a Prime Minister who cannot get a majority of the House of Commons for an election be entitled to a Dissolution?

[Lord Howard of Lympne (Con)]

Because our Government need decision. If you have a situation in which you have paralysis in the House of Commons, it is in the national interest that this should be resolved. The way in which it has traditionally been resolved and would now be resolved again if this Bill were passed would be by the Prime Minister asking Her Majesty, the monarch, to exercise the prerogative to provide a general election, which would resolve that paralysis.

I will say one more thing on Clause 3, because I do not want to trouble your Lordships again. The noble Lord, Lord Grocott, said that the ouster clause was completely unnecessary because no court would ever challenge the decision of a majority of the House of Commons. Had the noble Lord been present on Monday, he would have heard your Lordships’ House debate a number of occasions in which the courts had challenged legislation passed by a majority of the House of Commons. I am afraid that the noble Lord’s reliance on the reticence of the courts in these matters is considerably misplaced, particularly having regard to their decision on Prorogation. For that reason, Clause 3 is absolutely essential.

European Union (Future Relationship) Bill

Lord Marks of Henley-on-Thames Excerpts

3rd reading & 2nd reading & Committee negatived & 2nd reading (Hansard) & 2nd reading (Hansard): House of Lords & 3rd reading (Hansard) & 3rd reading (Hansard): House of Lords & Committee negatived (Hansard) & Committee negatived (Hansard): House of Lords
Wednesday 30th December 2020 Lords Chamber

[Lord Marks of Henley-on-Thames (LD) [V]]

My Lords, the draconian limitation of our scrutiny of this Bill—with no Committee stage, no Report stage, no amendments and three minutes each to speak—flows directly from the Government being too cowed by the ERG to seek to extend the transition period beyond tomorrow. So we have a disgraceful Hobson’s choice between this agreement, which is rushed and inadequate, and leaving the EU without an agreement.

I will vote against the Bill, not because I want to leave the EU with no deal but in protest against this bad agreement and its chaotic, undemocratic implementation. The Bill is undemocratic not just in its timescale but in its content, with massive, all-encompassing Henry VIII powers in Clauses 31 to 33.

I turn to the justice system. The Prime Minister wrote to us all on Christmas Eve that the agreement prioritises the safety and security of citizens. Why, then, are we abandoning the European arrest warrant for an inadequate substitute surrender system that is, in effect, traditional extradition with probable court delays and many escaping justice?

Why, too, are we giving up real-time access to the Schengen Information System—our main source of criminal data—accessed, as others have said, by the UK police 600 million times last year? Why are we giving up our leading roles in Eurojust and Europol, the world’s most successful international collaborative policing body ever, for fig-leaf spectator seats and limited, conditional and slow information exchange?

In civil law, why are we losing the reciprocal recognition and enforcement of judgments and the choice of court rules under the Brussels regulations, leaving British litigants, including children, without the international co-operation and civil and family cases that have served us so well? Yes, we have the three Hague conventions that we recently passed into law, and we may ultimately have the Lugano Convention, but that requires unanimity among the Lugano members and cannot be achieved in time. The replacements are no match for what we are losing.

Why, then, this series of retrograde steps for security and justice? The answer lies in the Government’s wrong-headed fear of any involvement in the European Court of Justice, even in areas that plainly advantage the UK. There has been a lack of any attempt to negotiate some limited special UK judicial involvement in the court, where we, this country, have a clear and special interest.

Duchy of Cornwall Bill [HL]

Lord Marks of Henley-on-Thames Excerpts

2nd reading (Hansard): House of Lords
Friday 26th October 2018 Lords Chamber

[Lord Marks of Henley-on-Thames (LD)]

My Lords, I thank the noble Lord, Lord Berkeley, for introducing the Bill and for the comprehensive way in which he opened the debate. We welcome the Bill. As the noble Lord, Lord Wakeham, and the noble Lord, Lord Adonis, suggested, I do not suppose that the noble Lord, Lord Berkeley, expects his Bill to sail on to the statute book, but that does not stop us discussing its principles in a Second Reading debate on a Private Member’s Bill.

I handled for my party the Succession to the Crown Act 2013, which provided principally that succession to the Crown should not depend on gender, as well as removing the unjustified and discriminatory disqualification from the succession by marriage to a Roman Catholic, a disqualification that dated from the late 17th century and the conflict about the departure from the Throne of James II and the accession of William and Mary. The Succession to the Crown Act was passed by the legislatures of all the Queen’s realms in a complicated exercise of diplomatic co-ordination when the Duchess of Cambridge was expecting a child. It was passed in time for the newborn, whichever gender it happened to be, to take a confirmed place in the line of succession and not be liable to future demotion if the child was a girl. As it happened, he was a boy, and Prince George duly became third in line to the Throne, but the Act has had the effect that Princess Charlotte comes next, notwithstanding the birth of a younger brother, and that is as it should be.

Clause 1 of the Bill of the noble Lord, Lord Berkeley, replicates that Act in its removal of gender preference for the title of the Duke of Cornwall. The present rule, embodied in the 1377 charter, is an arbitrary and discriminatory preference, which is a hangover from the 14th century, and it is high time for its removal.

One might say the same about the rest of the hereditary peerage—that daughters should inherit on the same footing as sons—and that the present arrangements in most letters patent are also discriminatory and quite unacceptable in a contemporary context. The noble Lord, Lord Lucas, certainly takes that view and introduced a Bill to reform the system in the 2012-13 Session, although the Bill never proceeded. I, and no doubt many others, can see why the Government may not see this kind of reform as meriting a high place on their legislative agenda, because it affects only a limited number of families and usually highly privileged ones at that. But the question does arise as to how far and for how long we should tolerate this kind of blatantly unfair discrimination, in spite of its limited application. The noble Lord, Lord Berkeley, is quite right to challenge it in this Bill in the context of the Duchy of Cornwall.

Clause 2 would remove Crown immunity from suit for the Duchy of Cornwall and we agree that there is no reason for Crown immunity to extend to the Duchy. The only proper purpose of Crown immunity is to give immunity from suit to the sovereign and to organs of government in certain tightly defined circumstances which Parliament has sanctioned, as set out in the Crown Proceedings Act 1947. As the noble Lord said, the Duchy is effectively a body in the private sector and there is no earthly reason why Crown immunity from suit should extend to the Duchy of Cornwall.

Again, Clause 3 would remove the anomalous exemption from tax for the Duchy, which was the subject of much of the speech of the noble Lord, Lord Adonis. Under the present arrangements, tax for the Prince of Wales is an entirely voluntary matter, as is tax for the Duchy estate, and the estate is immune from income tax, corporation tax and CGT. The Prince of Wales does not pay voluntary tax on any increase in asset values as the Duchy is a royal body and the Duchy is the owner of the assets. I do not regard that as a desirable or defensible state of affairs. Many would say that the right to the very substantial income of the Duchy is good fortune enough without its being compounded by the Prince’s only paying tax on an entirely voluntary basis. The income of the Duchy is now well in excess of £20 million a year. The Prince pays voluntary income tax of about £4.9 million, but only on his income after meeting the expenditure on royal duties, and no CGT, as I said. Those are substantial sums, and substantial sums of tax forgone are involved.

If the Duchy’s income is to go to maintain the Prince of Wales and his household, then so be it. But why there should also be a tax break for the heir to the Throne, I entirely fail to see. The Royal Family has done great things to pull itself into the 21st century. Not being required to pay tax on income in the same way as other citizens do is likely to feed controversy and questioning and bring the institution into disrepute. Nor is there any reason why the Duchy should be immune from claims by its leaseholders under the Leasehold Reform Act when they want to secure the freeholds or long leases on their homes—a reform that has been broadly welcomed and has worked well over many years for private landlords..

Closer to home for me, Clause 7 would remove access from the Duchy to the Treasury Solicitor. I see no reason why the Duchy should have access to the publicly funded legal services of the Treasury Solicitor— effectively, the Government’s legal department. We have had enough trouble with legal aid cuts for the vulnerable. Why we should be providing extensive legal aid to the Duchy of Cornwall escapes me.

For the monarchy to thrive, it needs to be contemporary, understood and trusted by the public. Maintaining discriminatory rules of succession, unfair immunities from tax, an out-of-date exemption from the Leasehold Reform Act and publicly funded legal services for the heir to the Throne is not a great way forward, and we need to start changing the rules.

Prisons: Rehabilitation

Lord Marks of Henley-on-Thames Excerpts

Thursday 6th September 2018 Lords Chamber

[Lord Marks of Henley-on-Thames (LD)]

My Lords, we are all grateful to the noble Lord, Lord Bird, for introducing this debate, which has demonstrated near unanimity on what the problems are with our penal system and on the outcomes that we need to achieve. Yet the ever-worsening crisis—to describe it in this way is more understatement than exaggeration—is not being addressed in practical terms. In prisons we have unacceptable and increasing levels of violence, assaults by prisoners on other prisoners, violence between prisoners and staff, homicides, suicides and self-harm. This was the central point made by the noble Lord, Lord Bird, and it was emphasised by the noble Lord, Lord Harris of Haringey, with all his experience.

Overcrowding—cell and prison capacities being exceeded, or, which is just as bad, being massaged upwards—continues to rise. Understaffing, as my noble friend Lord Dholakia said, leads to prisoners being locked in their cells for completely unacceptable periods of time—the noble Baroness, Lady Healy, made the same point. Purposeful activities—work, education and training—suffer, often because there are insufficient staff to organise movement around prisons, leading to lack of employability and more reoffending.

The facilities for addressing mental health issues and drug addiction are still poor. Insufficient attention is paid, still, to issues that particularly affect women, including those with children. Peter Clarke summarised it, in words that have been quoted in this debate, at the beginning of his third annual report:

“The year 2017-18 was a dramatic period in which HM Inspectorate of Prisons documented some of the most disturbing prison conditions we have ever seen—conditions which have no place in an advanced nation in the 21st century”.


I agree with the emphasis that the noble Baroness, Lady Bottomley, put on the importance of our inspectorates.

However, we are not tackling overcrowding. Prisons Minister Rory Stewart must move from expressed desire to genuine determination to cut the number of short sentences and to combat sentence inflation—something considered in July by the Justice Committee—even in the face of sections of the media and public opinion. We must release IPP prisoners kept in custody well beyond their tariff dates. We need to look at greater use of early release and home detention curfews.

Young offender institutions suffer from all the problems of adult prisons, compounded by a shortage of educational and training opportunities, as highlighted in Charlie Taylor’s review. Children with little schooling, often those who have been in care, suffer worst. Charlie Taylor’s review put education first. He summarised it as treating young offenders,

“as children first and offenders second”,

in a system,

“in which they are held to account for their offending, but with an understanding that the most effective way to achieve change will often be by improving their education, their health, their welfare, and by helping them to draw on their own strengths and resources”.

These were all points well made by the noble Baroness, Lady Hollins. Will the Minister report on progress in implementing Charlie Taylor’s recommendations?

In the probation service, there is complete demoralisation at the failure of the community rehabilitation companies—the CRC. While the remaining National Probation Service, though underresourced, performs its function moderately well, the CRCs are failing miserably. Underresourcing, redundancies, inadequate contract management and unhappy staff have led to a failure to deliver on the Government’s transforming rehabilitation programme. Through-the-gate supervision of prisoners on release has almost entirely failed. As Dame Glenys Stacey put it:

“In those cases we inspected, only a handful of individuals had received any real help with housing, jobs or an addiction, let alone training or else getting back into education, or managing debt”.


She said:

“CRCs are too often doing little more than signposting and form filling”.

We have failed to increase the involvement of the voluntary sector and what we must now do, I suggest, is to increase co-ordination between the prison and probation services, but not by renationalising all CRCs. It is outcomes that count, not ownership. Prison services, the youth justice system, all the probation services and the voluntary sector must work far more closely together, as the noble Baroness, Lady Jones, argued. All noble Lords have concentrated on rehabilitation, with the right reverend Prelate the Bishop of Gloucester expressing that in terms of hope. Rehabilitation saves money, as the noble Lord, Lord Bird, said, but much more importantly it turns around lives.

Brexit: European Arrest Warrant (European Union Committee)

Lord Marks of Henley-on-Thames Excerpts

Thursday 8th February 2018 Lords Chamber

[Lord Marks of Henley-on-Thames (LD)]

My Lords, I join others in thanking the noble Lord, Lord Jay, for his part in this excellent report and for the thoughtful and persuasive way in which he opened this debate.

I agree with the Prime Minister when, as Home Secretary in 2014, she said, in advocating our opting back in to the European arrest warrant, that our losing the EAW would turn the UK into,

“a honeypot for all of Europe’s criminals on the run from justice”.

The noble Lord, Lord Hannay, pointed out her support for the EAW system. When Naz Shah MP put the Prime Minister’s words to Nick Hurd, the Policing Minister, during his evidence to the Home Affairs Committee on 23 January, the Minister replied:

“The European Arrest Warrant is an incredibly important tool in the box. The data is quite striking. Prior to the implementation of the European Arrest Warrant in 2004, fewer than 60 individuals a year were extradited from the UK to any country, not just the EU. Between 2004 and 2016-17, EAW has enabled the UK to surrender over 10,000 individuals accused or convicted of a criminal offence to other member states. This has included those accused or convicted of murder, child sexual offences and terrorism offences. During that period, the EAW has been used to surrender over 1,400 individuals to the UK to face justice, so it is a very important tool”.


He went on to say that,

“we want to preserve that capability as close to the existing status quo as possible”.

Those words echo those of Amber Rudd, quoted in the introduction to the EU Committee’s report. The noble Baroness, Lady Kennedy, also spoke of the effectiveness of the warrant in combating serious crime across Europe, and all speakers have recognised the importance of reciprocity.

Day after day in this House we hear Ministers answering questions on Brexit topics by saying that the Government’s aim is to maintain our relationship with the EU as closely as possible in its existing form. Those of us who believe that the whole project of leaving the EU is a disastrous mistake have every right to ask, “Then why are we leaving?”.

All speakers in this debate agree that it is crucial for this country to continue to reap the benefits of the European arrest warrant system. The noble and learned Lord, Lord Brown, stressed the remarkable superiority of the warrant system over other extradition systems as it has developed to mitigate the flaws that it had. However, the report highlights the serious difficulties in our retaining the system if we do not accept the jurisdiction of the CJEU. I understand that to be the central point made by the noble Lord, Lord Jay, in opening.

Why have the Government made breaking with the CJEU such an unyielding red line if they want to achieve a deep and special partnership with the EU? I see it more as an unbending rod for the Government’s back than a defensible red line. If the Government genuinely want this partnership, they must accept that in areas of European co-operation, whether on citizens’ rights, trade standards, the environment or cross-border security co-operation, European law will continue to hold sway, and its oversight is now and will remain with the CJEU or something very close to it.

In the legal and security areas, the arguments surrounding the European arrest warrant apply equally across the field. They apply to Europol, the EU agency for law enforcement, which is critical to the fight against serious organised crime, people trafficking, cybercrime and terrorism. It is an agency to which the United Kingdom has contributed greatly, not least through its energetic British director. The UK is probably the single largest user of Europol in the EU.

The arguments apply also to data sharing under the Schengen Information System—the vast database to which EU member states have access under the judicial oversight of the CJEU. They apply to Eurojust, the EU agency that promotes co-ordination and co-operation between EU investigating and prosecuting authorities, and to which the DPP has made it clear that she attaches great importance. My noble friend Lady Ludford stressed the DPP’s complete commitment to the European arrest warrant as well. They apply to protection for citizens under the data protection directive. In civil matters they apply to resolving choice of law issues, currently achieved by the Rome regulations; to dealing with issues of jurisdiction, recognition and enforcement in civil and commercial matters covered by the Brussels I regulation; and to the recognition and enforcement of judgments in family law, covered by the Brussels II regulation. In all these areas Ministers claim to want maximum co-operation, yet they insist on rejecting CJEU jurisdiction.

The noble Lord, Lord Jay, pointed out the difficulties already arising with the European arrest warrant, particularly on the island of Ireland. The noble Earl, Lord Kinnoull, made the same point. I would point out in that respect to the noble and learned Lord, Lord Brown of Eaton-under-Heywood, that it was the likely absence of the protection of the Charter of Fundamental Rights that caused the problem with Ireland. I urge him to consider that in the context of his opposition to it.

The Government’s response to this report is typical. It explicitly recognises the need for a mechanism for dispute resolution. Although I cannot manage the eloquence of the language of the noble Lord, Lord O’Neill, on the subject of the Government’s response, I will say that their proposals are uncertain and muddled: uncertain, because all they can say is that they are committed to a constructive dialogue; muddled, because they imply that post Brexit our law can diverge from EU law in all areas, which betrays a fundamental failure to appreciate that for international co-operation to work one law must govern the behaviour of both parties and that law must be binding.

In European arrest warrant cases individuals have a direct entitlement to have their rights under EU law protected by national courts. As the noble Baroness, Lady Kennedy, and my noble friend Lady Ludford pointed out, these are cases involving individual liberty. If the system is to retain the confidence of citizens and governments, there must be judicial oversight at a supranational level, which in this context means the EU level, and it must be binding on all parties. Why should the EU 27 be expected to accept a non-binding alternative arbitration system for the oversight of arrest warrants when they already have a functioning, efficient and binding system in place?

Much is said on the other side about the affront to UK sovereignty involved in accepting the direct application of EU law and the jurisdiction of the CJEU. Yet we accept the UN charter and the jurisdiction of the international court in The Hague, and we accept the jurisdiction of the European Court of Human Rights under the European Convention of Human Rights. Why not the CJEU? If Brexit is to proceed on the basis of continuing partnership, then on all areas covered by the partnership we need to reach agreement on a system of judicial oversight that is both binding and workable.

Although I do not necessarily share this view, one can see the argument that, if we leave the EU, the fact that the CJEU will no longer have a British judge and a British advocate-general would make the court appear one-sided. Well then, will the Minister explain why the Government do not seek to secure that areas covered by new partnership issues arising between the UK and the EU will be justiciable by a parallel court? Call it what you like, but effectively it would be a division of the CJEU but with a British judge and a British advocate-general. Has such an obvious arrangement even been considered by the Government?

This whole issue has been blown out of all proportion by the soundbites of ideologues. The UK has been a successful litigant before the European court. Research for the Institute for Government published in December demonstrated that the UK has the highest success rate before the court of any EU member state. These negotiations are difficult enough without red lines that are illogical, unnecessary and indefensible. If this whole sad enterprise is going to proceed, and if the Government are serious about partnership, then in this, as in all areas, will they please stop posturing and make proposals to our partners that have some chance of being agreed and are realistic and workable?

Queen’s Speech

Lord Marks of Henley-on-Thames Excerpts

Tuesday 24th May 2016 Lords Chamber

[Lord Marks of Henley-on-Thames (LD)]

My Lords, others on these Benches have spoken on the many topics covered in this debate, but in winding up I will concentrate on the centrepiece legislation proposing prison reform and on the proposed British Bill of Rights. In so doing I shall respond to the challenge posed to me by the noble Lord, Lord Faulks, in opening.

The Prime Minister has made a welcome commitment that prisons will no longer be warehouses for criminals but instead be incubators of reformed and changed lives. This matches our central ambition of opportunity for all, in this case a second chance for prisoners to lead productive and fulfilling lives against the depressing background described by many in the debate, including by the noble Baroness, Lady Stroud, a moment ago. More than a quarter of prisoners have been in care and more than 40% permanently excluded from school.

This ambition cannot be realised by legislation alone. Our prison system now shames us as a nation. It is failing in its central purpose of reform and rehabilitation. It traps offenders and their families and communities with them in a cycle of crime and deprivation. Replacing old and inefficient prisons with new institutions will be a good start, but only a start. Of itself, giving governors greater autonomy will not improve anything, nor will making prisons independent legal entities. What will be important is the approach that more autonomous governors take. The right reverend Prelate the Bishop of Rochester raised important points on this issue. Moreover, it will be the resources they are afforded that will count if they are to civilise our prisons, to transform them from the squalid, unsafe and drug-ridden academies of crime which many, but not all, are today into places of genuine rehabilitation and opportunity.

The challenges are clear. We must reduce prison violence, improve education, increase purposeful activity and treat mental ill-health, drug addiction and alcohol abuse effectively and sympathetically. We can meet those challenges only if we address overcrowding and understaffing, just as the noble and learned Lord, Lord Woolf, and many others said. The figures on overcrowding are stark. My noble friend Lord Palmer of Childs Hill gave some of them. Last month, 84 out of 121 prisons were over their certified normal accommodation, which is their uncrowded capacity defined as representing a good and decent standard of accommodation the service aspires to provide for all prisoners. Seven prisons were over by more than 50%, including Wandsworth by 69% and Brixton by 48%.

We use prison too much. Our prison population of 85,000 is the highest in Europe. Ministers plead that it is for judges to sentence, but judges act in accordance with law and guidance, and increasing sentences ratchets up other services. Too many ineffective short prison sentences and the injustice of more than 3,300 IPP prisoners who have completed their tariffs compound the problem, yet the gracious Speech had no proposals to cut prison numbers. Overcrowding and understaffing, with cuts of a third of officers in six years, mean that many prisoners are locked into overoccupied cells for 23 hours a day with little purposeful activity. This is the toxic mix that has led to the explosion of prison violence. The Government say that body cameras and improved action on psychoactive substances will reduce violence, and they may, but they only scratch the surface.

With other noble Lords, I welcome Dame Sally Coates’s proposals on education in prisons. Personal learning plans and the availability of IT to prisoners for learning will be central, and if we cut overcrowding we will need to move prisoners less often, improving continuity in education and work. Part-time and earlier release, with tagging when needed, would also cut overcrowding and help prisoners make an assisted transition to productive lives on release. There is a virtuous circle to which we should aspire: improving prisons, leading to less crime; substantial financial savings; and better lives. It is against that aspiration that we will measure the proposed Bill. I ask the Minister to give commitments to the House: on reducing the numbers in all prisons to their CNAs, on reversing the falls in staffing levels and on fully resourcing the Coates proposals for education.

I turn to human rights. Last year’s Queen’s Speech contained exactly the same commitment to proposals for a British Bill of Rights as this year’s, as many have said. Yet the Government still cannot say what is intended, save that the rights in the Bill will be the ECHR rights and that the Government’s concern is with the interpretation of convention rights by the Strasbourg court. I suspect that few in this House would shed any tears if by next year’s Queen’s Speech this project had been abandoned. But as for a possible Liberal Democrat torpedo, we neither claim nor have the arsenal to torpedo legislation. There are defenders of the Human Rights Act on all sides of the House of Commons and, while we have greater representation in this House than we do there, we cannot win any vote without support from around the House. However, our position is clear. Just as in government we prevented our coalition colleagues from weakening human rights, so now in opposition we will in both Houses oppose any provision that weakens the protection of the human rights guaranteed to British citizens by the convention.

I therefore ask the Minister again to confirm that the Government will not withdraw from the European Convention on Human Rights, as he clearly implied in opening. As for the Government’s concern, the noble and learned Lord, Lord Falconer, pointed out that the sovereignty of Parliament is preserved by the Human Rights Act. Nor does the obligation under Section 2 of the Act to take account of Strasbourg jurisprudence require slavish adherence to Strasbourg decisions by the domestic courts, as the Supreme Court has made clear. However, we are bound by Article 46(1) of the convention to comply with final decisions of the Strasbourg court and it is a violation of international law and a repudiation of the rule of law when we fail to do so—on prisoners’ voting or anything else. Any such failures weaken our reputation as they weaken the rule of international law.

Noble Lords have referred to the position of Scotland, Wales, Northern Ireland and the Republic of Ireland. In a recent letter to Michael Gove, the Irish Justice Secretary warned:

“The Good Friday Agreement is clear that the European Convention on Human Rights must be incorporated into law. It is my government’s view that, while a domestic bill of rights could complement incorporation, it could not replace it.”

How do the Government respond to that?

None of this means that there can be no Bill, but along with other noble Lords I am entirely unsure what any Bill is likely to achieve. If a Bill does get as far as this House, we would wish to protect and strengthen human rights in the UK. We will also seek to extend human rights, both as my noble friend Lord Carlile suggested and by seeking to incorporate the UN Convention on the Rights of the Child into UK law, as my noble friend Lady Walmsley sought to do with her Children’s Rights Bill some time ago. However, the Government should be sure of this. We will resist any provisions in the Bill which restrict the rights of British citizens under the convention and we will vote to ensure that our convention rights continue to be justiciable in UK courts. My party will at no stage sit back and abandon its core commitment to the legal protection of human rights.

Chilcot Inquiry

Lord Marks of Henley-on-Thames Excerpts

Thursday 22nd October 2015 Lords Chamber

[Lord Marks of Henley-on-Thames (LD)]

My Lords, I, too, commend the noble and learned Lord, Lord Morris of Aberavon, on securing this debate. I share with him and others the concern and frustration at the serious delay that has, I fear, damaged the credibility of the Iraq inquiry. However, like all the other speakers, I do not believe that discharging the inquiry would be sensible. In my view, that would send us back to square one, and for us now effectively to go back to the drawing board would be a great mistake. Indeed, were that course adopted, we might never, after all the expenditure of time and money, secure a final report—and securing an authoritative report is vital in the public interest.

What is required now is for the full report to be completed and published as quickly as reasonably possible. The public, those involved in the events of and around the Iraq war, within and outside the armed services—in particular, the families of the casualties— deserve nothing less than a thorough and convincing report within a clear and achievable timetable.

This inquiry has exposed a serious weakness in our arrangements for inquiries, whether or not established under the Inquiries Act 2005. Unfortunately, and no doubt in the interests of protecting his independence and that of his inquiry, Sir John’s correspondence has reflected the view that timetabling is a matter for the inquiry and is almost entirely free from scrutiny. Indeed, he resisted providing a timetable until 13 October, when he promised to write to the Prime Minister by 3 November with a timetable to completion. I agree with the suggestion of my noble friend Lady Falkner that that was probably in response to the tabling of this debate. As recently as 8 September, Sir John had written thus to the House of Commons Foreign Affairs Committee:

“There is, inevitably, further work for my colleagues and I to do to evaluate these submissions”—

he was referring to the Maxwellisation responses—

“which are detailed and substantial, in order to establish with confidence the time needed to complete the Inquiry’s remaining work. As soon as I am able to I shall write to the Prime Minister with a timetable for publication of the Inquiry’s report”.

I do not accept the view of the noble Earl, Lord Attlee, that there is no need for the Maxwellisation process, but I suspect that its management has been insufficiently strict. I also suspect that, had a senior judge been in charge, with experience of bringing difficult cases to readiness for trial, much tighter deadlines would have been imposed, and imposed publicly. The need for a public timetable is one of the things we should stress. I cannot believe, for example, that any individual needs more than two months to respond to indicative criticisms. I am also clear that only one response should be permitted, in the absence of the most exceptional circumstances, to avoid the process that fairness requires becoming a negotiation. In my view, the chairperson of the inquiry should publicly set out a timetable, subject to necessary adjustment, with a clear explanation of any need for extension.

When the then Prime Minister, Gordon Brown, announced the inquiry in 2009, he said that he was advised that it would take a year. It is unacceptable that, more than six years on, we have had only partial explanations for the delay, despite Sir John’s evidence to the Foreign Affairs Committee in February of this year. For my part, I entirely agree with the noble and learned Lord that I see no reason why this inquiry was not established under the Inquiries Act 2005. The Select Committee on the Act, established under the chairmanship of my noble friend Lord Shutt of Greetland, which reported last year, recommended that,

“inquiries into issues of public concern should normally be held under the Act. This is essential where Article 2 of the ECHR is engaged”,

as it is, of course, loosely, in this case.

Sir John, in his evidence to the Select Committee, did not agree. He felt that the power of compulsion contributed to an overly formal or court-like adversarial process, and said:

“The absence of legal powers to subpoena witnesses and to take evidence on oath was also the subject of debate when the Inquiry was launched…In my statement of 30 July [2009], I said that the Inquiry is not a court of law and nobody is on trial, and that remains the case”.

I disagree with Sir John as to the thrust of that. I regard the power of compulsion, along with firm time management, as essential. It is also quite clear that the protection of national security can be properly managed on an inquiry under the Act. There is a strong case for the Act to be amended to give the commissioning Minister the power to require the inquiry chairman to give a full timetable for his work at the outset and keep it updated as the inquiry develops, much as this House often does when establishing committees to report to the House.

I do not believe that an interim report on the basis of the evidence gathered would be helpful. Such an interim report would be no more than a recitation of the evidence to date, without conclusions or recommendations, or it would draw provisional conclusions open to reversal at a later stage. A record of evidence without the conclusions would be of limited use because the whole purpose of an inquiry is to draw such conclusions, and without them, the report—interim or not—is of no help. Moreover, I agree strongly with others who have spoken that an interim report containing the evidence and interim conclusions would be confusing and unsatisfactory. It would leave the inquiry open to charges of interference if any of the provisional conclusions were altered, and neither set of conclusions—interim or final—would command any respect. If they turned out to be the same, the final conclusions would be criticised on the basis that they were reached precisely in order to accord with the interim conclusions—by definition, the incompletely considered conclusions. If the conclusions were different, then the final conclusions would be criticised for inconsistency with the provisional conclusions earlier expressed.

Therefore, let us await the timetable for publication on 3 November in the hope that this debate has brought home to the public and the inquiry members the importance of completing an authoritative work and producing a report with expedition.

Strengthened Statutory Procedures for the Scrutiny of Delegated Legislation: DPRRC Report

Lord Marks of Henley-on-Thames Excerpts

Tuesday 5th March 2013 Lords Chamber

[Lord Marks of Henley-on-Thames]

My Lords, I join my noble and learned friend Lord Mayhew and the noble Baroness, Lady Andrews in paying tribute to the chairmanship of the Delegated Powers and Regulatory Reform Committee of my noble friend Lady Thomas of Winchester. She consistently chairs meetings of our committee with a combination of efficiency, understanding and charm that enables even the driest of our debates to be enjoyable and interesting and, generally, to lead to conclusions in which we all have confidence.

As has been said, the committee performs a valuable function and performs it well, but there is considerable force in the central thrust of our special report. That is that the burgeoning range of arrangements for parliamentary scrutiny tends to deprive Members of this House of the ability quickly and simply to assess whether Ministers’ exercise of delegated powers will be adequately or appropriately supervised and controlled.

It is, of course, gratifying that, in general, the recommendations of the committee are accepted by Ministers, so that the work of the committee is, to that extent, effective. However, there are occasions when the committee rightly feels that the level of scrutiny should be a matter to be considered by the whole House. This is particularly true when strengthened scrutiny procedures are being considered. On such occasions, it would be helpful for Members of this House if the possibilities were generally limited to a few well understood procedures. That recommendation is at the heart of our report. The Government have promised to move in that direction, and this House should be astute to monitor how serious and disciplined the approach of the Government is in future.

I shall follow up the suggestion that my noble friend Lady Thomas made towards the end of her speech, which was supported by the noble Baroness, Lady Andrews, that there should be a better, more effective and more detailed specific way of scrutinising delegated legislation that is subject to the affirmative resolution procedure. The regret Motion, which is a familiar procedure in this House, is a blunt instrument indeed. Fatal Motions are even blunter and the House is understandably reluctant to entertain or to resort to them. If passed, a regret Motion gives the Government an opportunity to think again, but it does not compel them to do so. As a procedure, the regret Motion has two important flaws: first, it is entirely non-specific and while it is common that the Motion sets out in general terms the basis for criticism, it does not enable the House to consider and express a view on particular flaws in the instrument proposed nor does it give the House the opportunity to suggest alternatives or amendments that might make for better or more effective secondary legislation. Secondly, the regret Motion is generally ineffective in practice, even if it is successful. Generally, it is an instrument not of constructive scrutiny, which is the proper role of this House, but of outright opposition, which may be out of place, particularly given that, ex hypothesi, the enabling legislation has already passed through both Houses.

The two-stage process suggested by my noble friend would answer those criticisms. I fully appreciate and agree with her that delegated legislation is of its nature a matter for Ministers, subject to the appropriate level of parliamentary scrutiny. It is therefore not appropriate for us to introduce a fully fledged procedure for amending delegated legislation. That would be contrary to principle and the whole point of such legislation. However, I suggest that there might be many ways of achieving the objective of enabling the House to have a more directed and specific way of looking at draft instruments. My noble friend’s suggestion is certainly one which offers that prospect. On the first occasion that a draft instrument came before the House, the House would be in a position to suggest amendments that might improve it and to invite the Government to consider them. The Government would then have the opportunity to do so, knowing that if the will of the House were ignored, they would run the risk of being defeated when the draft was brought back to the House unamended. If, on the other hand, the Government wished to amend the draft, they could do so and bring the amended draft back to the House for approval.

I am not suggesting that this procedure would or should be invoked in every case, but it would be sensible for it to be considered and tested. I suspect that its introduction would probably not require any formal change of procedure. The House, the usual channels and the Government could then determine when such a procedure should be used and monitor whether such a new procedure added to the effectiveness of the House in scrutinising secondary legislation. I suggest that it almost certainly would.