Queen’s Speech

Lord Morris of Aberavon Excerpts

Thursday 13th May 2021 Lords Chamber

[Lord Morris of Aberavon (Lab) [V]]

My Lords, given the result of the elections for the Scottish Parliament, it is incumbent on Westminster to listen. The first priority is to have a meaningful mechanism for regular joint consultation, at the highest ministerial level—that means led by the Prime Minister—between the four Governments of the United Kingdom. If the United Kingdom is to remain united, the present spasmodic ministerial meetings will not do.

As one of the architects of Welsh devolution, from as early as 1953 to 1999, and as Attorney-General, I had the privilege of presenting the Wales Bill, in both languages, to Her Majesty for signature. A wily commentator at the time said, “It must be legal, because the Attorney-General is doing it”. On that basis, I yield to no one in my defence of the right of devolved Governments to decide their own policies in devolved fields. My maxim always is: once powers are devolved, there can be no reversal.

I am, however, surprised by the comparatively minor differences between each country in their policies to deal with the pandemic. We hear constantly about the reliance on data—meaning scientific data. I would have thought that there are no national boundaries to the spread of infection and that, more likely than not, the scientific evidence should be similar. Where is the stubbornness—at Westminster or elsewhere?

Turning to Scotland, I well remember, when I was Welsh Secretary, Willie Ross, my Scottish counterpart, claiming that it was Scotland’s oil. The way that the price of oil has gone up and down should make anyone caring for the economic welfare of his country be wary of building his house on the product of sand and at the mercy of the whims of Middle East sheikhs. It is beyond dispute that more is spent per head in Scotland than in the rest of the United Kingdom. In the recent election, the spending promises made bore no relation to equality of spending throughout the United Kingdom. Instead, they bore a striking relation to Charles Dickens’s Eatanswill election.

It seems, from Mr Michael Gove’s press conference in Glasgow, that Westminster plans to throw money at the Scottish problem. I say immediately, having had the Barnett formula imposed on me as Welsh Secretary, that, if any money goes to Scotland, Wales is likely to demand something similar. The Government are on a dangerous course of reversing devolution if they intend to spend directly in devolved areas. Any new expenditure should be funnelled through, and agreed with, the devolved Governments—otherwise it would be another manifestation of Eatanswill. Ms Sturgeon is right to put another referendum to one side for now. What is proposed is the second referendum in a generation.

I make two further points. First, for years in your Lordships’ House and elsewhere, I have advocated a royal commission or similar mechanism to examine, inter alia, the results of the working of devolution and make proposals for the future governance of the United Kingdom. Secondly, in my recent published book, written in Welsh, I came to the conclusion that, if the demand for a Scottish referendum prevails, I could not see why the Scots should not be given the opportunity to have one. Having a referendum does not, by a long chalk, mean that far-sighted Scotsmen would vote to leave when the economic strength of Scotland is properly weighed and the question of currency and cross-boundary trade is clarified.

Ms Sturgeon may need to be reminded of today’s House of Lords Library calculation: over 2,600,000 people voted for non-unionist parties and over 2,700,000 for unionist parties—a margin against of nearly 50,000. The immediate task is for the Government to make it clear beyond doubt that only through a Section 30 order can a legally binding referendum be permitted, as opposed to the cardinal events in Catalonia in Spain.

Crown Courts: Outstanding Cases

Lord Morris of Aberavon Excerpts

Thursday 15th April 2021 Lords Chamber

[Lord Stewart of Dirleton (Con)]

My Lords, prior to retirement, judges below the High Court are already able to have their appointments extended on an annual basis up to the age of 75 where there is a business need. After retirement, salaried judges are already able to be authorised to sit beyond the current retirement age of 70, on an ad hoc basis, up to the age of 75. We are using our fee-paid judges, as well as salaried judges who wish to sit following retirement, to ensure that we maximise judicial capacity.

In answer to the second part of my noble friend’s question, we are looking at more flexible working. Temporary Covid operating hours have been piloted at seven Crown Court sites to test whether even more could be done, and we are looking at the extension of the working day as a short-term—I emphasise “short-term”—tool and aid to managing recovery. Magistrates’ courts also sat on at least 100 additional Saturday courts per month between September and December.

[Lord Morris of Aberavon (Lab) [V]]

My Lords, justice delayed is justice denied. Is not the root cause of the delays the reduced finance that the Justice Department too speedily agreed to long before the pandemic? Have the Government given up on the alternatives that I have canvassed to speed up trials—for example, a reduction in the size of juries or trials of less serious offences decided by judges alone, with the consent of the defendant?

Bribery Act 2010: Post-legislative Scrutiny (Select Committee Report)

Lord Morris of Aberavon Excerpts

Wednesday 3rd February 2021 Grand Committee

[Lord Morris of Aberavon (Lab) [V]]

My Lords, the Select Committee of your Lordships’ House is to be congratulated on an impressive and comprehensive report, which is a good example of post-legislative scrutiny. I well remember that, when I was a member of a similar scrutiny committee on the Defamation Act, there was a steep learning curve.

In the short time available, I can touch on only some of the report’s subjects. The first is the role of the CPS and the SFO. In my time as a law officer, I had to initiate reform of the CPS by setting up the Glidewell inquiry. In my supervisory role, I had regular meetings with the Director of Public Prosecution and less frequent meetings with the director of the Serious Fraud Office. My first point is that, as a criminal law practitioner, I was very conscious of the immense burden that prosecutors carried in investigating and prosecuting fraud cases, which were becoming more complex than they had been in the past. It is essential that investigators and prosecutors have sufficient resources to tackle the problems. May I ask the Minister to place on record the financial resources that the CPS and SFO have been getting annually since the beginning of the period when austerity cuts began? I believe that the Ministry of Justice accepted far too readily reductions in finance and, hence, manpower. Specifically, can we have the figures for both?

I regard it as important that the Director of Public Prosecutions and the director of the SFO should publish plans outlining how they will speed up bribery investigations and improve levels of communications with those placed under arrest under the Bribery Act. That is not to denigrate the Government’s response, which I welcome; my query is whether it goes far enough. The committee received evidence of relatively low salaries for lawyers and investigators at the SFO and the CPS in comparison with their private sector counterparts. That is only partially taken on board in the Government’s endorsement of the SFO’s increased budget. I make the same point as regards the rank of police investigators and the resources that the police are able to devote. I regard the Government’s response to paragraph 85 of the report, where the committee makes a valuable recommendation, as inadequate. I submit that the Government should look again at this now and repeatedly in future years.

I welcome the scrutiny that the committee has given to deferred prosecutions and pay tribute to the noble and learned Lord, Lord Garnier, for his advocacy. The emphasis is clear in the report that the judgment of the court should be public, and the public should be aware of what has happened and the conclusion.

On post-Brexit issues, the lower figures for applications for European arrest warrants at Westminster magistrates’ court in recent weeks are alarming. I am concerned by the Government’s claim that they have the available tools to ensure the safety of our realm and that we can get hold of people whom we require to face justice. I suspect that the tools are inadequate and we are less protected than we were. Perhaps we could have the observations of the Minister specifically on the issue of why there has been such a reduction in applications for extradition in recent weeks at Westminster magistrates’ court.

I welcome the committee’s scrutiny. I turn to that part of the report that deals with corporate hospitality, although it has been dealt with so adequately by the noble Lord, Lord Gold. The bottom line is that it is a matter of common sense, as he said—and I repeat that. Many years ago, my friend the late Sir Melvyn Rosser, one of the senior partners at Deloitte and a member of the Royal Commission on Standards of Conduct in Public Life, said that a possible yardstick of the measure of hospitality was that a bottle of whisky at Christmas might be permissible but certainly not a case of whisky at any time. The Bribery Act was never intended to prohibit reasonable and proportionate hospitality or other similar business expenditure. I do not go along with the committee’s attempt to get the Government to give clearer examples in the Ministry of Justice guidance. It is common sense at the beginning and the end, and no more advice is really needed.

With those brief words, I am conscious that I do not do justice to the committee’s hard work, which I commend, and I appreciate the forbearance of the House.

Covert Human Intelligence Sources (Criminal Conduct) Bill

Lord Morris of Aberavon Excerpts

Committee stage & Committee: 4th sitting (Hansard) & Committee: 4th sitting (Hansard): House of Lords
Thursday 10th December 2020 Lords Chamber

[Lord Davies of Gower (Con) [V]]

My Lords, this amendment in my name seeks to address the current inadequacies in respect of protection afforded to undercover operatives. I apologise at the outset to the noble Lord, Lord Cormack, but I intend using the word “CHIS”, which I also find unsuitable—I prefer the phrase “undercover operative”, but I will refer to CHIS throughout my speech.

I seek to address the current inadequacies in respect of the protection afforded to an undercover operative when faced with a potentially life-threatening situation while engaged in an operation by inserting new subsections (8A) and (8B) into the new Section 29B of the Regulation of Investigatory Powers Act 2000. The effect of this new insertion would be to allow authorisation in certain circumstances after the event, and I will explain the circumstances as I progress.

It seems clear to me from noble Lords’ contributions to the Committee—I say this acknowledging the many and varied concerns expressed by noble Lords in their contributions—that there is a tendency, indeed more than a tendency, to overlook the threats and dangers that these undercover operatives are faced with at crucial times during their deployment. It is that, and that alone, which I seek to call attention to and address with this amendment.

We have heard a great deal from noble and learned Lords who have considerable experience at unravelling the machinations of the criminal law, and we have, quite understandably, also heard a great deal from noble Lords who have concerns for human rights. However, little has been said that provides for the security and protection of the undercover operative, and I suggest that the operational safeguards for a CHIS are not being addressed in this Bill. We now have an opportunity to do so.

I should add at this point that I am of course very mindful of the criminal conduct authorisation requirements, which are set out in subsection (5) of new Section 29B, and the amendment recognises that. The amendment does not for one moment propose or recommend that a CHIS should be given carte blanche to commit serious crime—given a free ticket, as it were. It is intended to ensure that those who are prepared to risk themselves for the benefit of the state should be afforded the comfort of knowing that, when they embark on a particularly serious operation, they have the full support of the law behind them at the outset, given that they may be operationally forced into a situation where they are required to take a course of action to avert or mitigate a threat to their physical safety or that of some other person which results in them committing a criminal offence not previously authorised or foreseen.

It will doubtless be maintained that the law caters for and provides protection at present—we have heard during the course of the Bill that prosecutors and the courts offer a degree of protection in such situations—but I maintain that that is not good enough.

We have also heard, with good reason, during Second Reading and in Committee, of the need to respect the requirements of the Human Rights Act. I say that it should apply collectively and that we should be very clear that the legislation applies to all, and so we must demonstrate that in the Bill. To rely on a prosecutor’s decision or a judges’ disposition on a particular day, in the hope that, after the event, they will support any previously unauthorised but necessary and vital action by an undercover operative taken to protect him or herself, or another, is just unacceptable to my mind.

Having managed quite a number of successful CHIS operations in my 32 years as a front-line detective, I have seen at first hand informants, agents and undercover operatives place themselves at incredible risk. While I do not doubt for one moment that the view of those currently at the head of organisations responsible for conducting such operations has been sought and will have perhaps influenced the course of the Bill, that does not alter the reality of the situation for the operative on the ground when challenged with the protection of life.

Unlike many policing procedures and operations that can be fine-tuned, undercover operations can be very unpredictable, to say the least. These operations present themselves in a variety of ways. It may be the activity of a drug-related gang—perhaps so-called county lines gang activity, where, sadly, juveniles are invariably involved as couriers; it may be an imminent threat of harm during a kidnap scenario requiring an instantaneous response; it could be an armed gang involved in robberies on high-profile celebrities while at home with their families; or it could just be a straightforward test purchase scenario that takes an ugly turn in order to test the veracity of the CHIS. These are not hypothetical cases: they are real-life scenarios that I can vouch for. Frankly, the list is endless. However, one thing is for sure: these organised criminals are, in the main, extremely violent people, often under the influence of extremely dangerous drugs which render them devoid of any sense of responsibility or fear.

My concern is that we should not tie the hands of undercover operatives. We should not allow them to undertake these extremely dangerous, often life-threatening roles with one hand tied behind their backs, in the sense that they fear prosecution if they follow a particular course of unanticipated action in order to protect life or prevent serious harm. They should not have the sword of Damocles hanging over them.

Of course, undercover operatives will be briefed and tasked; they will know what is before them, as well as can be expected on the available intelligence. However, once in theatre, as it were, they are on their own. Yes, there will be back-up not too far away, but this will not be instantaneous and will not allow for the situation where a CHIS, whether part of the criminal gang or a deployed undercover operative, may be put to an immediate test of their genuineness by organised criminals through circumstances that were not foreseen or allowed for in the planning, briefing and authorising stages.

Organised criminals are not, in the main, rational-thinking people. I can think of many scenarios, such as a test purchase, whereby an undercover operative is forced to partake in a class-A substance as proof of being genuine and, in the ugliest of scenarios, perhaps has a knife pressed to his or her body, with unthinkable consequences, for failing to surrender to the test. Surely, in situations such as that, where the CHIS must retain his or her credibility, they must be afforded support in the Bill. The operative should not have to rely on the good will of a prosecutor or the court. On the one hand, we are seeking in the Bill to legitimise criminal activity, yet, on the other, failing after the event to acknowledge and support the actions of a CHIS in life-threatening situations. There could be, say, an ambush attack from a rival gang, during which the undercover operative must take some immediate and previously unauthorised action to avert or mitigate a threat to life. The scenarios are endless and allowance should be made in the Bill for such eventualities in order to provide protection through law for CHIS. The question as to who authorises such previously unauthorised action is perhaps a matter for further consideration. I accept fully that that decision may rest with a person other than the initial authorising officer.

It is therefore my belief that human rights and our obligation to provide a duty of care would be properly served by the amendment. I beg to move.

[Lord Morris of Aberavon (Lab) [V]]

My Lords, I will be brief. In earlier consideration of the Bill, the House has been concerned with prior authorisation—I repeat, prior. I do not resile for a moment from the importance of prior authorisation and I hope that we will have the opportunity to consider it in due course.

The noble Lord, Lord Davies, who has considerable experience in these matters, raises a narrow point relating to post-authorisation for the protection of officers. I should be interested in the Minister’s reply. My understanding is that the noble Lord seeks to deal with threats to the physical safety of the persons named in the amendment in narrow and possibly important circumstances. Its thrust, while dealing with another aspect, is in the spirit of your Lordships’ consideration of authorisation—in this case post, as opposed to prior, authorisation. Hence, my understanding is that he seeks to plug a possible gap by urging upon noble Lords the need for a statutory requirement for speedy, post-hoc authorisation in certain circumstances.

I have two questions for the Minister. First, how likely is such a situation to arise? Secondly, can we properly be told whether such situations have arisen in the past? In the circumstances, while I pay tribute to the noble Lord for raising this matter, I should like to hear the Minister’s reply on the need for the amendment and its practicalities.

[Lord Paddick (LD)]

My Lords, the noble Lord, Lord Davies of Gower, who has great experience of these issues, spoke about our having thus far overlooked the dangers faced by undercover operatives. Little has been said about operational safeguards. Indeed, perhaps I may take this opportunity to mention that I was contacted by a noble friend this morning who emphasised the bravery of undercover operatives, who place themselves at considerable risk in many such situations.

The amendment highlights the limitations of the whole idea of granting pre-event immunity from prosecution within what the Government variously describe as criminal conduct authorisations that are tightly bound, specific, tightly drawn and within strict parameters. What the noble Lord, Lord Davies of Gower, has described is all too possible: that a CHIS—whether a highly trained agent, an undercover police officer or a 16 year-old child informant—encounters a situation that, even if foreseen as a possibility, the handler and authorising officer felt unable to authorise and grant immunity for in advance.

Rape: Prosecutions and Convictions

Lord Morris of Aberavon Excerpts

Monday 14th September 2020 Lords Chamber

[Lord Morris of Aberavon (Lab) [V]]

My Lords, a previous Attorney-General asked for my views, as a criminal practitioner, on the failure to get convictions. Can I persuade the law officer’s department that there should be a special trigger mechanism for particular action whenever digital evidence might be an issue? Since consent seems to be the problem, will he also persuade the Attorney-General to instruct the CPS to publish details of how many cases of rape consent is raised in and how many convictions there are in consent cases?

[Lord Keen of Elie (Con) [V]]

My Lords, I am not certain that such data is available, but I will make inquiries to see whether it is or whether it can be collected, in a reasonable fashion. I will advise the noble and learned Lord upon the outcome of that inquiry.

Royal Commission on Criminal Justice

Lord Morris of Aberavon Excerpts

Wednesday 15th July 2020 Lords Chamber

[Lord Keen of Elie]

My Lords, we anticipate that the royal commission will be able to commence its work in the autumn, having before it a finalised set of terms of reference. We have to be realistic about how the royal commission will operate. We wish it to report within 12 to 18 months; accordingly, the terms of reference will have to reflect that timescale.

[Lord Morris of Aberavon (Lab) [V]]

My Lords, as a criminal law practitioner for more than 40 years, I warmly welcome the setting up of the commission. The listing and hearing of criminal trials is in a mess and underfunded, and efforts to increase court sittings are belated. Will funding for criminal legal aid be part of the remit of the royal commission?

[Lord Keen of Elie]

My Lords, as I have indicated already, I am not yet in a position to confirm the remit of the royal commission as the terms of reference have not yet been published. Again, I remind noble Lords that we are concerned to ensure that the terms of reference are manageable in the context of our wanting a report within 12 to 18 months.

Sentencing Bill [HL]

Lord Morris of Aberavon Excerpts

2nd reading & 2nd reading (Hansard) & 2nd reading (Hansard): House of Lords
Thursday 25th June 2020 Lords Chamber

[Lord Morris of Aberavon (Lab) [V]]

My Lords, I thank the noble and learned Lord the Minister for his careful explanation of the Bill. When I sent for it, I was overwhelmed by its sheer volume. I join in its universal welcome. I do so as a criminal law practitioner over a period of 40 to 50 years, and I am humbled by the speeches from distinguished ex-judges.

I remember sitting as a young assistant recorder, dragooned by my former pupil master, Sir Alun Davies QC, to sit as his deputy as a recorder of Cardiff in about 1972. I shall never forget the first case I tried, involving a novel defence in a breathalyser case, having just helped as a junior Minister to pilot the Bill in question through the House of Commons. Breathalyser legislation turned out to be a cottage industry. When I ruled against the defence counsel, I thought it would end my judicial career. It did, but not for that reason: rather, because of my lack of judicial aspiration when set against the delights of politics. Some of the difficulties one had to negotiate when sitting as a judge involved complex sentencing on traffic cases, for example, and changes from time to time in suspended sentences. Frequently, the clerk and even the jailer were more up to speed than the judge himself.

My thanks go to the Law Commission, created by Lord Gardiner under a Labour Government in which I also served very happily as a junior Minister. The striking feature of the briefing for this debate, already mentioned, is the complexity of statutory provisions. The Law Commission, having analysed 260 randomly selected cases before the Court of Appeal Criminal Division, found that 36% of cases had received unlawful sentences. Sir Brian Leveson has underlined the difficulties and struggles of judges in sentencing. I hope the judiciary will be able to navigate sentencing easier when the Bill receives Royal Assent. Equally important, the public and the sentenced will have more confidence in the judicial system.

I particularly welcome the clean-sweep provisions. They are very modest and adhere to and endorse the human rights convention. I hope they will be manageable against that background. They deal only with offences committed in the past, so they will apply only for a period. With those few remarks, I welcome the Bill.

Crown Court (Recording and Broadcasting) Order 2020

Lord Morris of Aberavon Excerpts

Monday 8th June 2020 Lords Chamber

[Lord Morris of Aberavon (Lab) [V]]

My Lords, I am grateful to the noble and learned Lord for his explanation of the orders. I have to wrestle with two competing influences in dealing with issues of this kind: on the one hand, the need for justice to be seen to be done, and, on the other, the danger of outside influences such as sensationalism influencing court proceedings. I regret that I first opposed, and then supported, the broadcasting of the House of Commons. Time has proved that I was right the second time round.

Other than when I was a Minister—under three Prime Ministers—I have spent all my professional life practising in the criminal courts. I venture to think that I have met near as many alleged murders, rapists and fraudsters as most in your Lordships’ House. The first order is very limited, applying only to senior judges in the Crown Court, and would not have applied to a part-time recorder like myself sitting as a Crown Court judge. So we are only putting our toes in the water, so far as the criminal courts, and I commend this approach.

Sentencing remarks can unexpectedly become very sensational. I suspect that a consequence of the order will be that judges will in future exercise extra care in their sentencing remarks. That would be for the good. The only publicity I had, in many years sitting as a judge, was around my sentencing remarks in a rare triple bigamy case. The offences had taken place many years before, but the accused was fairly young. The years had gone by, and he was now happily married, with a wife and children. Every tabloid splashed my sentencing remarks, “Judge tells bigamist: You get on with it”. What I meant was that, given the passing of so many years, he should now get on with his settled life. I was much more careful in my other cases after that.

I particularly welcome that the broadcast should not be in breach of any applicable restriction order, which could be of fundamental importance in, I surmise, a small number of cases. The results of a breach of such a restriction can have appalling and costly consequences. On the basis that this is not the thin edge of the wedge, I welcome the order. I suggest, if I may, that, in perhaps two or three years, the Lord Chancellor should report to Parliament on its operation. What should be paramount in our consideration is ensuring that there is no infringement of the right to a fair trial. I am content with the second order.

Private International Law (Implementation of Agreements) Bill [HL]

Lord Morris of Aberavon Excerpts

Committee stage & Committee: 1st sitting (Hansard) & Committee: 1st sitting (Hansard): House of Lords
Wednesday 13th May 2020 Lords Chamber

[Lord Anderson of Ipswich]

My Lords, those of us who are less than happy with Clause 2 have three options: restricting it to Lugano, as we have just debated; voting to remove it altogether, as both the Delegated Powers and Regulatory Reform Committee and the Constitution Committee have recommended; or voting to trim its scope in a variety of respects, as the amendments in the name of the noble and learned Lord, Lord Falconer, in this and the following group seek to achieve. I welcome the amendments in this group, essentially for the reasons given by the noble and learned Lord, which there is no point in my repeating.

However, Amendment 16, which would remove the reference to model laws, is particularly important for two reasons. First, as the noble and learned Lord said, model laws are not international conventions but, as expressed by the Bar Council, collections of soft law provisions which often need to be modified substantially before being given effect in domestic law. The noble and learned Lord, Lord Falconer, illustrated that very well with the example of insolvency. Secondly, model laws are not subject to the provisions of CRaG and cannot benefit from such “limited and flawed” comfort—in the words of the Constitution Committee from April 2019, repeated today by the noble and learned Lord, Lord Mance —as may be given by the operation of its mechanisms.

That said, I incline to think that these amendments, even viewed collectively, are insufficient to meet the substantial constitutional concerns that the Constitution Committee identified in its recent report on this Bill, concerns which to my mind the Minister has not yet allayed, for example with his remarks on timing and reputational damage. That is a matter for the debate on whether Clause 2 should stand part, on which I see that a good deal of firepower has been virtually assembled and which I do not seek to pre-empt or express a final view on at this stage.

Finally, I think we all want to acknowledge the enormous efforts made by the staff of the House to ensure that debates on legislation such as this can take place in a coherent manner. I hope that I do not tempt the fates by saying that. However, I echo the comments of my noble friend Lord Pannick and the noble Lord, Lord Adonis, that voting on the Bill must be possible, by whatever means, when it is brought back on Report. I am grateful for the reassuring words of the Minister on that, but I would be even more grateful if he would upgrade his reassurance into an undertaking, which I think he indicated it was not.

[Lord Morris of Aberavon (Lab)]

My Lords, I am indebted to the noble Lord, Lord Rowlands, for drawing my attention to the impressive eighth report of the Delegated Powers and Regulatory Reform Committee, of which he is a member, and the Minister’s reply.

Any expertise I acquired in the course of my academic education in Cambridge has, I fear, slipped away. I am glad that, as a law officer, I was not particularly troubled by questions of private international law, in stark contrast to public international issues such as advising on Kosovo, Iraq, Sierra Leone, the United Nations and elsewhere. My remarks are addressed to Amendment 16 but equally apply to a lot of issues I would have raised on the stand part debate, and therefore I may be excused from repeating them when we come to that issue as the same questions arise.

Having examined the evidence in the two documents, surely the preferred course is a matter of judgment. I leave on one side the hugely impressive technical arguments we have heard during this debate. The issue is this: does one depart from the practice of 100 years of the need for primary legislation to implement a treaty or does one bow to the urgency and the apparent narrow window to implement the application of the Lugano convention before the end of the transition period? Other examples have been cited, but I do not expect that they have the same urgency as that.

The noble Lord, Lord Anderson of Ipswich, mentioned the hearing of the Justice Sub-Committee, which I used to chair, in which some rather fundamental concerns were raised about Lugano in the course of the evidence, particularly regarding family matters.

The Minister believes that proceeding by statutory instrument is necessary to implement agreements in a timely manner. That is the issue he puts before us today. The question that concerns me is, while there might be a discrete argument for dealing with issues in the way proposed during the transition period, has it occurred to Her Majesty’s Government that it might be more acceptable to put forward a much narrower clause to deal with a specific mischief such as Lugano? I agree with the spirit of the remarks made by my noble and learned friend Lord Falconer.

It would be better if we had something much narrower to deal with the specific issue than the rather wide power that is now being granted to the Government. That certainly would have the attraction of being more proportionate. Failing that, my submission would be to delete Clause 2 altogether. That really would meet the harm that has been ventilated so ably in the course the debate.

[The Deputy Chairman of Committees]

I believe that the noble Lord, Lord Adonis, does not wish to contribute at this point. I therefore move on to the noble and learned Lord, Lord Mance.

Crime: Rape

Lord Morris of Aberavon Excerpts

Tuesday 22nd October 2019 Lords Chamber

[Lord Keen of Elie]

My Lords, we recognise the significant importance of support for those who make complaints of all sexual offences, and rape in particular. It is necessary to look at taking forward further the scheme for the giving of evidence under Section 28. It is also appropriate to have in mind the use and application of Section 41 in relation to the potential for examining complainants about their sexual history. These matters have been under fairly constant review since Dame Vera Baird’s study in 2017, followed by the CPS study the following year and, more recently, in work done by the Criminal Bar Association. We do recognise the need for support and consideration in these cases.

[Lord Morris of Aberavon (Lab)]

My Lords, I have been involved professionally in a number of rape cases. Will the House accept the distinction between the small number of cases where the issue is identification and the much larger number where the issue is consent? The problem is that juries are reluctant to convict in those cases. Are the Government satisfied that the problem of non-disclosure of evidence has been solved? Will they provide resources for the CPS to upgrade the pay of prosecutors so that only the best counsel is available and able to prosecute in these very serious cases?