Post Office: Prosecution Powers

Lord Morris of Aberavon Excerpts

Tuesday 4th February 2020 Lords Chamber

[Lord Duncan of Springbank]

The individuals affected are indeed the face of the Post Office in towns and villages up and down the land. The situation which arose was unacceptable and the courts have shown that. There needs to be manifest change in the way the Post Office does business and a recognition that that way is not acceptable going forward. We will be doing things differently; we will bring in a new national framework to ensure that the past situation cannot be repeated. This is the time for us to bring about the real change which is required right now.

[Lord Morris of Aberavon (Lab)]

My Lords, when I was a law officer, we brought most governmental and quasi-governmental organisations which did prosecute under the supervision of the Attorney-General. Would that be appropriate in this case?

[Lord Duncan of Springbank]

I suspect that it will be quite some time before the Post Office embarks upon another adventure of this sort, for many obvious reasons. We need to recognise that a number of manifest failures led to this situation. These need to be understood, and they are being by the new culture inside the Post Office. The reality remains that the Post Office got it wrong. For that, there needs to be a serious change, and at the heart of it must be not just profits but recognising the role of the sub-postmasters themselves.

European Union (Withdrawal Agreement) Bill

Lord Morris of Aberavon Excerpts

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

[Baroness Finlay of Llandaff (CB)]

My Lords, I will also focus my remarks on Amendments 5 and 7 in this group, to which I have added my name.

My noble and learned friend Lord Thomas has explained in some detail the legal reasons for our concern at Ministers’ unwillingness to consider these amendments. For my part, while I understand the importance of the promises that the Government have made to Northern Ireland, surely it cannot be right that Welsh and Scottish devolution appear to be treated as less important than that of the six counties of Northern Ireland. The Northern Ireland Executive are assured that they will have direct representation when bodies under the joint committee consider matters relevant to Northern Ireland, but the Government fail to give any assurance to the devolved institutions in Scotland and Wales that their interests will be protected during the negotiations which are to come.

As I and other colleagues have repeatedly argued, there is a perfectly adequate way, through Section 109 Orders, to amend devolved competence where there is agreement between the Welsh and UK Governments. Such an approach involves both this Parliament and the Welsh legislature. I also understand that if an issue falls outside the scope of Schedules 7A or 7B to the Government of Wales Act, other powers may need to be used, but any suggestion that this may happen must be fully consulted on with the Welsh Government from the outset. Wales cannot be ridden over roughshod or treated as a second-class nation. If in extremis such agreement cannot be reached, it is of course open to the Government to ask Parliament to amend the Government of Wales Act, but such extreme measures should be used only as a very last resort.

If this clause is not amended, it will remove the incentive for Ministers of the Crown to reach a reasonable accommodation with the Welsh Government and the Senedd if and when it emerges that changes affecting the nature or implementation of devolved responsibilities and regulation are needed. There is a need to rebuild and regain trust. It may seem trivial, but as the noble Baroness, Lady Hayter, has said, despite the fact that we are on the verge of seeing the Senedd vote against legislative consent, I believe for the first time, and despite the Minister having suggested to me that direct dialogue between the Governments would be helpful, it is with regret that I understand that there have been no conversations between the Secretary of State and Welsh Ministers for the last 10 days. I assure noble Lords that that is not due to any reluctance on the part of Welsh Ministers.

The letter of 16 January from the Minister, the noble Lord, Lord Duncan of Springbank, states that under this Bill, the Government are “wholly incapable” of repealing the devolution statutes. Can he explain the absolute limits on the powers as written in the Bill because, as my noble and learned friend Lady Butler-Sloss has pointed out, no limits seem to be defined in the legislation before us? The letter also contains the phrase that it is not “normal” to use the main power set out in Clause 21 in areas of devolved competence without the agreement of the relevant devolved Administration. Can the Minister also explain the use of “normal”, which feels a bit like a get-out term?

In conclusion, let me say that Amendments 5 and 7 in no way seek to block or slow down Brexit—I remind the House that Wales voted in favour of Brexit— and they would not stand in the way of the Government’s wish to make a success of the Northern Ireland protocol. We are simply trying to avoid the perverse consequence of undermining faith in the union in Wales as a result of trying to shore up belief in the union in Northern Ireland.

[Lord Morris of Aberavon (Lab)]

My Lords, I support these amendments, in particular Amendments 5 and 7 spoken to by the noble and learned Lord, Lord Thomas of Cwmgiedd. They are of fundamental importance and go to the heart of the devolution settlements. For a number of reasons I was not able to take part in the Committee stage of the Bill, although I was present for a great deal of the debate.

My interest in a devolved model of government began to crystallise when I was a postgraduate student at Cambridge as far back as 1954. As the Welsh Secretary, I was fortunate to have the opportunity to frame the architecture of a Welsh Bill in 1975, ill-fated as it was, but in 1998 I was given a second chance as a law officer in the Cabinet Committee to contribute to a more acceptable Bill. Anything that casts doubt on it or the important advances made since arouses my suspicion, because we have moved on. My principle is that once a matter is devolved, there is no going back. Once the hand of Westminster grants devolution, it cannot then be withdrawn. The Government must ensure that any suspicion of backsliding is removed.

New subsections (2) and—probably—(5) in Clause 21 cause deep suspicion for me. New subsection (2), which has already been referred to, says that a Minister may make by regulation

“any provision that could be made by an Act of Parliament (including modifying this Act).”

This year I have enjoyed reading the book on Thomas Cromwell; I commend it. It is the life of the greatest political manipulator this country has ever seen—and probably the deviser of Henry VIII powers, because his hand was a very firm one on the tiller in all the legislative processes of that time. I ask the Minister frankly: could anything be wider than new subsection (2)? It is the Trojan horse that could amend the statutes that embed the devolution settlement.

As it stands, my suspicions are justified. The power is there to make changes to the devolution settlement even if the National Assembly and Welsh Government are opposed to the change. If Westminster has the Assembly’s agreement to changes, there is a perfectly respectable machinery for making them. It has already been referred to in the debate. In uncharted waters, such changes may be necessary.

I ask the Minister specifically: have the Government considered the alternative, a Section 109 Order in Council? This is the machinery available and could be used for any changes that might be required. Above all, they would be consensual as opposed to imposed changes. My second specific question is: will the Minister clarify and emphasise that legislative consent would normally be required for any regulation that would be brought in under this Act? Thirdly, have the Government discussed with the Welsh Government the anxieties they have? I commend these amendments.

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[Lord Duncan of Springbank]

The noble and learned Lord raises a point that needs to be addressed head-on. The point is that we know that the existing powers whereby we can direct Welsh Ministers, or by using a Section 109 order, might well be inadequate for certain elements of the types of negotiations we anticipate. The problem we would have is that, if we place in the Bill all those aspects that we anticipate, we will run into some difficulty. They are primarily technical in nature, as might be expected in a negotiation of this complexity. The purpose of the powers is therefore to ensure the technical alignment of the various elements as we go forward to implement the Northern Ireland protocol. The ambition to do so will be done using the various instruments already available to us, including the Joint Ministerial Committee, which is primarily a method whereby we can examine the technicalities. The negotiations that will unfold will be technical and it might well be that out of that will emerge no elements in which we will need to invoke these powers—but, if we do need to do so, in areas where we anticipate that the current means to do so are not available, we would need to have these additional powers to move this matter forward.

[Lord Morris of Aberavon]

I might be a slow learner, but, following the point made by the noble and learned Lord, Lord Thomas, I would like to know which specific points cannot be dealt with by a Section 109 order.

[Lord Duncan of Springbank]

I cannot give the noble and learned Lord the answer to that question, but I can give him the assurance, from speaking to my legal advisers, that in the negotiations that will unfold there will be areas that we think will be under discussion that might stand outside those areas I have touched on regarding Section 109 and the ability to direct Welsh Ministers.

Queen’s Speech

Lord Morris of Aberavon Excerpts

Tuesday 27th June 2017 Lords Chamber

[Lord Morris of Aberavon (Lab)]

My Lords, today’s debate overlaps to some extent with tomorrow’s, and some of my observations, while constitutional and on devolution affairs, also affect our exiting the European Union. My first point is on the cost of our divorce from the EU. Many large and varied figures have been bandied about. Will the Government demand full transparency of all EU assets and expenditure, given that the EU accounts have not been given the all-clear for 19 years? While the Court of Auditors found them “reliable”, whatever that may mean, they were also materially affected by errors, for example, to the tune of €109 billion out of €117 billion spent in 2014. These errors may be only a small part of the problem, but the point is the general application of full transparency. We have an old legal adage: “He who seeks equity must come with clean hands”.

Secondly, I seek an assurance that when the responsibility for a subject is repatriated to the UK on exiting, there will be no attempt to claw it back by Westminster. Agriculture, and the necessary finance to replace the funding from Brussels with that from Westminster, is one example that I have in mind. A subject, once devolved, remains devolved and cannot be clawed back.

Thirdly, under the Sewel convention, the Westminster Government do not normally legislate on devolved matters without getting legislative consent from the relevant devolved legislatures. This is reflected in the Scotland Act 2016 and the Wales Act 2017. According to the Supreme Court in Miller, the convention is political and does not give rise to obligations. The Prime Minister said in the Commons on 21 June:

“There is a possibility that a legislative consent motion may be required in the Scottish Parliament”.—[Official Report, Commons, 21/6/17; col. 62.]


The Leader of the Commons kicked that into touch on 22 June, when she said that a decision will be taken on whether a legislative consent Motion is needed at that point.

If I heard correctly, the Minister said today that legislative consent Motions will be necessary, where required. If I am right, could that be confirmed? I would be grateful for confirmation of what I thought I heard today. If I am right, we have moved substantially forward in recent days.

My fourth and last point concerns the triggering of another general election. Brenda from Bristol would be aghast that I am even mentioning it. The Times was good enough to publish last week my views on the law regarding any request for a second Dissolution. As a matter of history, the then leader of the Opposition asked me in 1992 about the position of a Prime Minister who had failed to obtain a Commons majority in a general election requesting a second Dissolution. I consulted widely eminent constitutional lawyers, such as Sir William Wade and Sir David Williams, and we believed that such a request then would be improper, as it would,

“smack of an attempt to get a recount of the electorate’s first decision”.

The machinery of a request under the royal prerogative has now been superseded by the Fixed-term Parliaments Act 2011. In April this year, the Prime Minister moved under Section 2(2) of that Act:

“That there shall be an early parliamentary general election”,


and got the required majority for a Dissolution, the result of that Division being 522 to 13. Parliament cannot now otherwise be dissolved.

As we know, in the election, the Prime Minister failed to get the Commons majority that she expected. In the Act, there is nothing to prevent the Prime Minister trying to get the House of Commons to pass a Motion for yet another Dissolution. This is an unintended consequence of the Act. It must be strictly interpreted and is confined to dissolving Parliament, and dissolving Parliament only. Choosing a Prime Minister, from whatever party, remains a matter for the royal prerogative. The convention on precedent before the Act, rather than then having a second Dissolution, was for the leader of the Opposition commanding the support of a substantial number of Members of the House of Commons, to be given the opportunity to form a Government. Rather than further Dissolutions, reverting to the convention, which is unaffected by the Act, should be the first port of call. I commend it.

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[Lord Bourne of Aberystwyth]

I think the noble Lord already has—but I thank him, as always, for his courtesy. We can perhaps disagree on some of the interpretation of that issue.

The noble Baroness, Lady Humphreys, asked questions about the tolls. We are working on how we intend to deliver that, and on matters in relation to the main line north and south as well. I will cover in a letter the more detailed point on S4C funding as I do not have that to hand.

I will turn swiftly to Northern Ireland. Many noble Lords rightly focused on the importance of delivering on power sharing. I can confirm that the Government are very much committed to the Assembly. That is central to everything that we are doing in terms of policy in Northern Ireland, along with other parties here. I thank many noble Lords for the kind and accurate things they said about the Secretary of State, who is working in Belfast on the power-sharing position as we speak.

I understand that views will differ on the agreement with the DUP, but I should say first of all that it does not cover any of the social conservative issues that people understandably would raise if it did. However, it does not. I think in practice that is helping with the position in Northern Ireland. It is worth noting that Gerry Adams said, “Well done, Arlene”—so perhaps that is an indication that it is helping rather than otherwise. I hope we can all agree that power sharing is important. It is central to what happens in Northern Ireland.

The other issue I would like to cover on Northern Ireland—I cannot claim to be in any way an expert, but I was there last week and I will be there again tomorrow—is that you do not have to be there long to see that it is very different from England, Scotland and Wales. Different considerations apply and we have to recognise that. There is a legacy in all sorts of ways. I noted that the noble Lord, Lord Alderdice, said that we now have peace, which is essentially true. However, there are fragilities there in terms of many aspects of life in Northern Ireland, as he will know. Now we have a generation of people who have known nothing but peace. We have to work to ensure that that continues to be the case, and that before too long we will have two generations who have known nothing but peace.

I thank those noble Lords who have contributed on Northern Ireland. The noble Lord, Lord Reid, speaks with massive experience and is rightly listened to with great respect. Along with other noble Lords here— for example, the noble Lord, Lord Murphy—he is remembered with fondness in Northern Ireland for what he has contributed. They obviously speak with great experience.

I also listened with great interest to my noble friend Lord Empey, the noble Lord, Lord Browne of Belmont, my noble friend Lord Trimble, the noble Lord, Lord Hay, my noble friend Lord Dunlop and many others, including the noble and right reverend Lord, Lord Eames, who spoke with great passion about how we must deliver for Northern Ireland, the noble Lord, Lord Maginnis, the noble Lord, Lord Rana, and many others, including the noble Lord, Lord Laird. It is a pivotal moment and I repeat that the Government are truly committed to power sharing and to the Assembly. It is the way forward, as is ensuring that we have travel to work across the border.

I also thank the noble Lord, Lord Steel, who spoke about the importance of confidence and supply and the way that is delivered and advertised; I listened to that with great interest.

Many points were raised today on the situation of our housing market. We remain committed to the White Paper—many noble Lords raised that issue. Much or probably most of that can be delivered without legislation. However, as I say, at the moment we are talking about only two of the five years, and obviously, when legislation is needed, we will look at that. I thank the noble Baroness, Lady Warwick, who I know speaks with great authority on housing, for her welcome of much of what is in the White Paper. We are very happy to work across the aisle, as it were, with other political parties to ensure that we deliver not just on affordable homes but also on social housing, which has for understandable reasons been the focus of our attention recently.

The noble Lord, Lord Shipley, put many important points, which I will cover in the letter, on housing, land banking, and so on. Those were addressed in the housing White Paper and are very much still in play. As noble Lords appreciate, we will deliver on the tenant fees Bill.

The noble Baroness, Lady Lister, asked about guaranteeing the position of people who are subject to domestic abuse and therefore need that guarantee. That is still on the table, as we discussed previously, so if she wants another chat about how we will do that, I will be happy to meet her.

On Grenfell Tower, briefly, this was another dreadful situation. Once again, I pay tribute to all those people who helped there—certainly the emergency services, voluntary organisations, individuals on the ground, faith organisations and people from all sorts of backgrounds. Yes, there was a slow start there in dealing with what was pretty much, thank goodness, an unprecedented situation. Now we are garnering resources and moving forward with the testing, and doing what is necessary on a national basis, because this demands a national response. I am grateful for the way that noble Lords have dealt with this rather than the more emotive way others have, characterising it as murder, which was grossly irresponsible. I thank noble Lords and I am grateful that noble Lords in this House have treated it very differently.

I will quickly deal with some other issues if noble Lords indulge me—I am moving through this. The independent advocate is important—the noble Lord, Lord Kennedy, and my noble friend Lady Newlove referred to it.

On the courts Bill, I will deal with the detailed points made by the noble Lord, Lord Beecham, and others, as I will on prisons legislation. I thank noble Lords who have given a welcome to the role of David Lidington, who regards prison reform as important; it is on his radar. Much of this—not all of it—can be delivered without legislation. However, I take very seriously the points made by the noble Lord, Lord Ramsbotham, who speaks with massive experience. I am sure that this debate will be picked up by the Lord Chancellor anyway, but I will make sure that he is aware of what was said; points were made by the noble Lords, Lord Dholakia and Lord German, the noble Baroness, Lady Stern, the noble Lord, Lord McNally, the right reverend Prelate the Bishop of Bristol, the noble Lord, Lord Marks, and other noble Lords.

I will deal with some individual points, some of which were a little bit left-field. However, I will make sure that they are picked up. The noble Baroness, Lady Howe, talked about the content filter and extreme pornography; I will certainly make sure that we get a response on that.

My noble friend Lord Empey spoke about House of Lords reform. It was very courageous of him to mention that in the body of this Chamber. I think that the Lord Speaker is taking that forward, but I will make sure that my noble friend gets a response.

My noble friend Lord Goschen spoke about motorbike crime. My noble friends Lord McColl and Lady Manzoor raised issues concerning modern slavery. I know that my noble friend Lady Williams will be very happy to meet them to discuss how that issue can be taken forward.

The noble Baroness, Lady Flather, along with others, mentioned the Casey review, which is still very much a live issue.

The noble Baroness, Lady Meacher, made a very powerful speech, if I may say so. Again, I shall be very happy to meet her, along with my noble friend Lady Williams. I think that there are issues worthy of being looked at, and I say, “Well done on getting the Daily Mail on side”.

The noble and learned Lord, Lord Morris, asked a specific question, but I cannot remember what it was.

[Lord Morris of Aberavon]

It was about legislative consent Motions.

[Lord Bourne of Aberystwyth]

I am grateful. I can confirm that they are needed and we will be seeking them from all three devolved bodies—in Northern Ireland, Wales and Scotland.

On tackling corruption, I will get a response for the noble Baroness, Lady Stern.

Corporate governance was raised by the noble Baroness, Lady Bowles, and we will cover that. It is not something that I saw coming, but I can say that I think that the legislation on corporate manslaughter is acting quite effectively, as is that on corporate governance. It is updated from time to time, usually in line with recommendations from bodies that look at those issues.

The noble and learned Lord, Lord Hope, asked about cohabiting couples, and we are looking at that matter. We have not come to a conclusion on it but, again, we will be very happy to engage on it to see how to move it forward.

I apologise if I have missed any of the points that were mentioned. I was completely blind-sided by the issue raised by the noble Lord, Lord Rooker, apart from recognising one or two of the names, but I will ensure that he receives a full response. I hope he does not think that that is part of the conspiracy—I really was blind-sided by it. As I said, I will make sure that he gets a full response, but I am not in a position to say more than that at the moment.

The points that I have not covered I will pick up in correspondence. As ever, I thank noble Lords for a very full and helpful debate.

Sinn Fein: Parliamentary Oath of Allegiance

Lord Morris of Aberavon Excerpts

Tuesday 7th December 2010 Lords Chamber

[Lord Shutt of Greetland]

My Lords, I do not know whether I can add much, other than to state the belief that the Good Friday agreement means that the constitutional settlement is a settlement, and that there is no reason why Sinn Fein Members should not come to the other place. We are not aware, one way or the other, whether that is a major problem for them, or whether they would abstain from coming to the other place in any event. The Secretary of State has said that if Sinn Fein Members have a problem with the oath, they must raise it and see whether there is a way in which it might be solved. That is the position.

[Lord Morris of Aberavon]

My Lords, it is a mystery to some of us how Sinn Fein Members were able to claim the privileges of being Members of Parliament without taking the oath. Will the Government take on board that there would be wide repercussions in both Houses, and in public life generally, if there was a further dilution of long-established practices?

[Lord Shutt of Greetland]

I understand what the noble and learned Lord is saying. The position at the moment is that the Sinn Fein Members do not come here and do not claim a salary. They cannot have a salary because they do not come here. They can claim expenses because they still do constituency work: the other place agreed that that should be the case. They cannot claim £500,000: their expenses amount to somewhere in the region of £800,000.