House of Lords (Hereditary Peers) Bill

Debate between Lord Newby and Lord Keen of Elie

Committee stage
Tuesday 25th March 2025 Lords Chamber

[Lord Newby (LD)]

I say that much as I respect the noble Lord, Lord Birt. That just demonstrates the problem of specifying individual placeholders who should get a place in this Chamber.

Thirdly, the noble Lord, Lord Wolfson, made a valiant attempt to explain why he did not think the separation of powers mattered. The only thing I will say is that the separation of powers was legislated for by Gladstone in the Judicature Act 1873, a provision that was not implemented when Disraeli became Prime Minister the following year. As in many other things, I prefer Gladstone to Disraeli. This may or may not have been Liberal policy for 152 years—it actually beats our commitment to having a directly elected House of Lords as the longest commitment continuously held by a political party before it was implemented— and I see no reason why we should change from that position now.

[Lord Keen of Elie (Con)]

My Lords, the first life peerages were conferred under the Appellate Jurisdiction Act 1876, which remained in force until the impact of the Constitutional Reform Act 2005. It is perhaps notable that the first three appointments as Lords of Appeal in Ordinary were Scottish lawyers. It is also notable that the next three appointments as Lords of Appeal in Ordinary were Irish lawyers. However, 15 years later, a suitable English lawyer was identified and appointed.

Against that background, I turn first to Amendments 56 and 57, in the name of my noble friend Lord Wolfson, to which I have added my name. I must note two points. First, I express a degree of surprise about the advice he received from the Cabinet Office upon his appointment to the Government. There is a long and perhaps dishonourable tradition of Attorneys-General, Solicitors-General and Lord Advocates assuming high judicial office after their service in government. Indeed, in the case of the Lord Advocate, it was invariably the practice into the 1960s that he would appoint himself to the most senior judicial office available, there being no conflict of interest. However, there are very good reasons why it is of benefit to this House, as a political House, to have the benefit of those who have served in high judicial office, whether they do so following their retirement or at an earlier stage.

It was a point made by my noble and learned friend Lord Garnier and touched on by the noble and learned Lord, Lord Hope, that, while Lords of Appeal in Ordinary sat in this House, they would do so with a self-denying ordinance. They would not engage in matters that were potentially controversial from the perspective of their judicial office; for example, you would not have seen them engage in debates with regard to the Human Rights Act and other similar matters. However, as my noble and learned friend pointed out, it gave those in high judicial office some impression of the political mood so far as legislation was concerned, and that would have an impact on them when they came, in due course, to address what were potentially politically controversial issues that were raised to a point of law. I suggest that there was always a significant benefit in having such qualified persons in this House, albeit that it may be appropriate that they should be here after the judicial retirement age of 75 and up to the Government’s intended retirement age of 80—I see some of the government Back-Benchers wincing at that, but I understand that that is the intention.

I support the points made by my noble friend Lord Wolfson. I do not go so far as the amendment proposed by my noble friends Lord Banner and Lord Murray, and I do not take the point made by the noble Lord, Lord Grocott, that we are dealing here with protected places. We are dealing here with those who are not executive appointments to this House, of which a greater proportion are going to emerge as a result of this legislation.

In these circumstances, it appears to me that there are two elements. There is the element of an honour conferred on those who are granted high judicial office, and that is already reflected in the fact that the present President of the United Kingdom Supreme Court had a peerage conferred on him upon his appointment and the fact that the Lord Chief Justice, the noble and learned Lord, Lord Burnett of Maldon, had such an honour bestowed upon him as well. Frankly, I would be confident that those who have held high judicial office and have been public servants for so long a part of their career will, as a matter of course, become engaged in the proceedings of this House if that opportunity is presented to them.

I do not agree with the noble Lord, Lord Newby, that there should be no link between the peerage and a distinguished office which has been held. I do not believe we have to go down a slippery slope. However, I acknowledge that the separation of powers has to be noted and acknowledged, albeit Montesquieu was talking about the United States’ system and not our own—and even there, there are changes afoot.

I invite the Government to consider very seriously Amendments 56 and 57, and to comment on the other attendant amendments which would bring those who have held high public office and been distinguished public servants into this House, almost invariably on to the Cross Benches.

House of Lords (Hereditary Peers) Bill

Debate between Lord Newby and Lord Keen of Elie

Committee stage
Monday 10th March 2025 Lords Chamber

[Lord Newby (LD)]

It is always very dangerous to make a general comment in your Lordships’ House. But judges have a retirement age of 75.

We know that bishops aged more than 70, and indeed judges aged more than 75, in many cases have undiminished mental powers and are able to play a very considerable part in whatever it is they continue to do. But there is a reason for retirement ages, which is that exceptions do not prove a rule. We know here that many Members of your Lordships’ House stay on well beyond a point at which it would be in their best interests to retire. We, the usual channels, have no levers in order to help them leave at a point when, objectively, it would be in their and the House’s best interest. My Chief Whip and I had a signal success last week in persuading someone in their mid-90s to retire, but it was slightly touch and go—and that, frankly, is not acceptable in my view.

If we are to have a retirement age, the question is: what should it be? The noble Lord, Lord Blencathra, said that 80 was clearly too young. He prefers 85; the noble Earl, Lord Dundee, prefers 90. We often talk about the dissonance between the ways in which the House of Lords and the outside world view things. I can think of no case where there is a greater dissonance than in the view of a reasonable retirement age.

I am afraid that I find it very difficult to accept the idea that 80 is far too young. The noble Earl, Lord Kinnoull, made a suggestion about how we might persuade Peers to retire without having a set retirement age: by having a retirement age that applies only to new Peers, in the expectation that many existing Peers who are over that age, whatever it is, would retire on the basis that that is what the judges did. In my experience, the problem is that people who most should retire are often the ones who are most reluctant to retire. I am afraid to say to the noble Earl, because it is a very attractive proposition in other ways, that I do not think that it would work, and I certainly do not think it would work to the extent that we would want it to.

This debate has shown that there is absolutely no consensus in your Lordships’ House about what a retirement age should be. I agree with the noble Lord, Lord Hogan-Howe, who said on a previous group that this subject should not be part of the consideration of the Bill. The Government say that they will bring forward a consultation and proposals on it and I believe that it is very important that the impetus for this change, particularly the exact retirement age, should not come from your Lordships’ House. If ever there was a case of turkeys and Christmas, it is Members of the House of Lords determining when they should retire. Therefore, it is incumbent on the Government to come forward with their own proposals—I would be very happy if they were in line with their manifesto commitment—but I do not think an amendment passed by your Lordships on a Bill that is, in essence, about the hereditaries is a sensible way to deal with it.

[Lord Keen of Elie (Con)]

My Lords, first, I apologise if my voice fails—although many noble Lords may appreciate that eventuality.

I begin by addressing the amendments moved by my noble friends Lord Blencathra, Lord Hailsham, Lord Dundee, Lord Parkinson and Lord Dobbs and the noble Earl, Lord Devon. However, I divide them into two categories: the issue of a retirement age and the issue of term limits. I will not address the latter in the context of this debate, but I will address the former, because it is one of the Government’s manifesto commitments. They expressly said that.

Here we are, almost at 10 pm, debating whether it is appropriate for us to have a retirement age of 90 years, 85 years or perhaps even younger. The general public would regard such a debate as quite surreal. The question posed by my noble friend Lord Goschen is very much on point. It is incumbent on the Government now to step up and explain why they put the issue of a retirement age into their recent manifesto. It was not done on the spur of the moment; these things are thought out, debated and considered. Yet we struggle to identify the raison d’être for that manifesto commitment; it simply floats in the air.

Comments have already been made about other professions and pursuits and the issue of retirement, but, clearly, no one has ever contemplated an official retirement age of 90. That is why I wonder about the terms of this debate at all. In banking and finance, one would generally expect retirement at 55. Why? Because those organisations want to refresh themselves. In the judiciary, until recently the retirement age was 70; it is now 75. That is not because of the belief that judges who reach the age of 75 are no longer capable of interpreting and applying the law—many are, some are not and some never were.

Be that as it may, there is a further, more important issue. It is the issue of public confidence. If you walk into a court to have a serious issue determined in a court of law and discover that the judge is 92 years of age, you would rightly have reservations about his ability to determine a complex issue. It is no different for those who do not interpret and apply the law but purport to make it. The issue is not whether Lord Mackay of Clashfern was able to contribute to the proceedings of this House into his 90s, or whether the noble Lord, Lord Dubs, is still able to do so—I do not doubt that for a moment. But there is a very real issue of public confidence. That is also married to an issue about the numbers in this House, and how we deal with that issue.

European Union (Withdrawal Agreement) Bill

Debate between Lord Newby and Lord Keen of Elie

Committee: 2nd sitting (Hansard) & Committee stage & Committee: 2nd sitting (Hansard): House of Lords
Wednesday 15th January 2020 Lords Chamber

[Lord Keen of Elie]

No. What is ready to go is a consultation process. That is why we have not reached a conclusion. The noble Baroness, Lady Taylor, asked two questions, the first of which was, “Are the Government going to use this power?” We are going to use it in order to consult with appropriate parties. May I give examples? Examples have been given by noble and learned Lords. One example is a reference system to the Supreme Court. Another example is to extend this power to the Court of Appeal. That is what we want to determine by virtue of the consultation process we wish to take forward.

[Lord Newby (LD)]

Is the Minister saying that when the consultation goes out, it will in effect be saying, “Give us a clue as to what you think makes best sense because we haven’t the faintest idea ourselves”? Are the Government going to express no thoughts about what might be preferable? Have they had no thoughts? Have they not thought about it before now? In every other aspect of Brexit, the Government have clear, dogmatic, unwavering thoughts. On this single one, they appear to have no thoughts at all. Is that not strange?

[Lord Keen of Elie]

My Lords, this Government are not dogmatic—the noble Lord is quite wrong about that. Let us be clear: there is a starting point. If I can refer the noble Lord back to Section 6(5) of the 2018 Act, he will see that the starting point is already enacted. However, we want to find a way forward that is more effective and appropriate, and that is the purpose of the consultation process that is allowed for in the clause.

Further Discussions with the European Union under Article 50 of the Treaty on European Union

Debate between Lord Newby and Lord Keen of Elie

Wednesday 27th February 2019 Lords Chamber

[Lord Keen of Elie]

It is comforting to know that Mr Corbyn has friends. It is also comforting that they can speak for him when he does not speak for himself. It remains interesting that he has yet to express his view as to what the question would be. As I say, at the end of the day you cannot have a referendum without a question.

The noble Lord, Lord Newby, also raised a question about the time for further legislation. Our position remains that, as with the secondary legislation programme, the Government are confident that primary legislation required for exit will be delivered. Business in both Houses is being scheduled accordingly to allow for that. I acknowledge that there will be a need to balance the requirement to pass vital legislation sent to us by the Commons with the need to ensure that this House has adequate time to scrutinise such legislation.

[Lord Newby]

I am very grateful to the Minister for clarifying that. Could he go further and answer my question about whether the Government intend to get through by 29 March the Agriculture Bill, the Fisheries Bill, the immigration Bill and the Trade Bill?

[Lord Keen of Elie]

As I indicated, all necessary legislation will be taken through in time for exit day, and that is our intention.

European Union (Withdrawal) Bill

Debate between Lord Newby and Lord Keen of Elie

Committee: 9th sitting (Hansard - continued): House of Lords
Wednesday 21st March 2018 Lords Chamber

[Lord Keen of Elie]

My Lords, are you sure? I do not think there is any need to rush this. We have covered a lot of ground and we have a lot more ground to cover now.

This amendment was put forward as a catalyst, and there has been a reaction. I leave others to judge whether it was contained or uncontained. As the noble Lord, Lord Stevenson, just observed, this is not the vehicle for major constitutional change in the United Kingdom. If we attempt to bolt that on to this Bill, it will sink without trace. Some may prefer that that should happen; nevertheless, that is not a sensible way forward. I am obliged to all those who have contributed to this debate, because it was our intention in putting forward this amendment to judge the mood of the Committee with regard to the quite radical change and approach that we have taken with this proposed amendment. It may be that I approach the matter with an open mind; it may be that I approach it with an empty mind; but at the end of the day we will have to make a decision that works for the whole of the United Kingdom.

I will take up one or two points. There is an appreciation—it may not be universal, but it is almost universal—of recognising the benefits of maintaining a single market in the United Kingdom. We already enjoy that single market by virtue of our membership of the EU, and it is something we want to retain after we leave the EU. In order to do that, there has to be agreement in principle as to the areas that underpin such a single market. The noble Lord, Lord Stevenson, alluded to the principles set out in the Joint Ministerial Committee minute of 16 October 2017. That is essentially what underpins our seeking agreement; there was consensus. That is what we need to do.

Ultimately, if we are to have a single market for the United Kingdom, we require a body to have jurisdiction over that single market. Again, as the noble Lord, Lord Stevenson, and others have acknowledged, that ultimately has to be the Parliament of the United Kingdom. There is no other way of addressing that issue. If we look to the issue of consent, rather than consultation, let us be clear that it is not a question of trust but of constitutional propriety. If we have a black and white, sharp-edged consent mechanism for the devolved Administrations, then we have the basis for what has been termed the veto problem. We have the situation in which, beyond the existing devolved competence, any one of these Assemblies could—it is at that level that it must be judged; not would, but could—proceed to legislate within its devolved competence in a manner that impacted upon those in another country within the United Kingdom, whether it be England, Wales, Scotland or Northern Ireland. We cannot go down that road. That would be a fundamental change in the devolved competence that we created in, and have indeed developed since, 1998.

It appears that we have, at times, merged two issues. The noble Lord, Lord Griffiths, apart from criticising Ministers for not getting on and doing any work on this, pointed out that there had to be a breathing space. Indeed, that point was developed by the noble Lord, Lord Hain, when he quoted the letter from my right honourable friend the Secretary of State for Wales. Just to put that into context—and if I may briefly go back to a point I made in an earlier part of the debate—the first stage of this process is to identify those competences coming back from the EU that will be required to operate a single market in the United Kingdom and to effectively ring-fence them on a temporary basis; thus the breathing space that the noble Lord, Lord Griffiths, referred to.

That is all that is involved in the first stage. That process has carried on in great detail since the principles were established last October. It has been the work of officials not only in Whitehall but in Edinburgh, Cardiff and Belfast. They have all come together to do what is termed in Civil Service-speak as “deep dives” into these matters. The product has now been published. It is the table that identifies 24 areas where it is considered there will have to be some temporary ring-fencing so that we can establish the next stage of the process for the single market—the framework agreements that will then form the basis for that single market.

Let us be clear: that is a separate stage. The ring-fencing is merely to hold those competences for the time required to put the framework agreements in place. We have agreed the principles on which the competences can be identified, and we have now carried out a process that identifies those competences. There is an element of disagreement about that, but only in two or three areas, so far as the Scottish Government are concerned. State aid is one of them. We regard it, for reasons I find fairly obvious, as a reserved competence, but they say it touches on a devolved competence. We will therefore have to address that, and potentially have a framework agreement in those areas as well. That is why there are a further 12 areas of competence that we are confident are in reserved areas, but which may be open to debate. None the less, there is a very substantial element of agreement on the ring- fencing.

Now let me go to the next stage. We then require the framework agreements. To the extent that those agreements will be implemented by primary legislation—it is anticipated that in many of the areas that will be the case—the primary legislation will be carried on in accordance with the constitutional conventions that we already have, and with the respect for the devolved settlement that we have always shown in the past. That includes the Sewel convention as now expressed in the Scotland Act 2016, which amended the Scotland Act 1998. It also includes those areas where, pursuant to DGN 10, such matters will touch upon the competence of Scottish Ministers.

That is where we seek the true element of consent—but ultimately, of course, if we cannot get agreement, we have the Sewel convention. Normally we proceed with the consent of the devolved assemblies, and that remains the position. That is the political understanding that underpins the devolved settlement, and has done for a very long time.

Can we just remove that dichotomy of consultation or consent? I know that within some Administrations, for reasons we do not have to explore, there is a determination to push for consent. Consent, as such, is constitutionally very difficult; I indulge in understatement when I say that. But there is still room for agreement, and the process overall should result in what somebody termed consensus—that is, a belief that we are all doing the same thing for the same reasons, with an expectation of the same result. That involves an understanding of what these frameworks are.

It has been suggested that the 24 areas of competence that require to be ring-fenced on a temporary basis should be expressed in a schedule to the Bill. I hear what is said about that, but whether it can practically be done in the context of the Bill may be another matter. As was observed, I believe by the noble Lord, Lord Stevenson, that may have to be expressed elsewhere. We can look at that, but in the first instance we have to understand what needs to be ring-fenced for the purposes of the framework agreements.

A sunset clause has been suggested, and I have already expressed a view about that. Clearly, we are listening to the idea that a sunset clause might run for five years. But the more we have gone on about this, the more we realise that what it all comes down to is two questions. One: can we have an appropriate forum in which to negotiate agreement with the devolved legislatures? Yes; that has been carried on in the joint ministerial committees. They have been criticised, but they have been successful, as can be seen by the agreement in principle in respect of these matters. Can we achieve that? The answer is yes.

Secondly, can we then express, in a manner that will satisfy the devolved Administrations, what the framework agreements will be? The answer to that is again yes because we will follow the normal and usual constitutional principles that involve embracing the Sewel convention in cases where primary legislation is required.

I hope that goes some way to reassure noble Lords that we are making progress here because underneath the concern about consent versus consultation there has been considerable movement. We not only have the principles that we will apply to the ring-fencing of competences but we will also have the means to bring forward framework agreements in a manner that will satisfy the devolved competence, as I say. It may be that it will go beyond the 24 areas already identified but work can continue on that matter. What is ultimately of importance is that we retain the means for uniformity of regulation in those critical areas that touch on the principles enunciated in October 2017. That is what has to be achieved. There may be more than one road but ultimately they all lead to Rome, and that is where we want to be at the end of the day, so with that—

[Lord Newby (LD)]

They go to Brussels.

Syrian Refugees

Debate between Lord Newby and Lord Keen of Elie

Tuesday 12th July 2016 Lords Chamber

[Lord Keen of Elie]

Of course, the observations of the noble Baroness will be noted by the present Prime Minister—and, no doubt, by the future Prime Minister—but I cannot give a further commitment at this time.

[Lord Newby (LD)]

My Lords, the report said that there had been 1,700 people coming into the scheme in 10 months. By my calculation, that means that at current rates of progress, by the end of the five-year period, 10,200 will have been given admittance to the UK. In the light of that arithmetic, can the Minister explain what he means when he says that the programme is on track?

[Lord Keen of Elie]

Of course, because it is necessary to distinguish between simple arithmetic and administration and policy. We are working with the United Nations High Commissioner for Refugees to ensure that appropriate numbers are brought in. The numbers vary from quarter to quarter, depending on those who are determined by the commissioner to be available for resettlement. The numbers vary.