Fisheries Bill [HL]

Lord Pannick Excerpts

Consideration of Commons amendments & Ping Pong (Hansard) & Ping Pong (Hansard): House of Lords & Ping Pong (Minutes of Proceedings): House of Lords
Thursday 12th November 2020 Lords Chamber

[Lord Northbrook (Con)]

My Lords, I support the amendment in the name of the noble Lord, Lord Beith, and the powerful speeches by the noble Lords, Lord Anderson of Ipswich and Lord Faulkner of Worcester, and my noble friend Baroness Couttie.

The relationship between the UK and the Channel Islands respects the distinct laws and ancient customs of the islands. They are not represented in the UK Parliament, and by charter and advention, the UK Parliament does not legislate for the islands without their consent. It is settled practice that the UK Government consult the main Channel Islands before they may bind them to obligations in international law.

As the noble Lord, Lord Beith, has already stated, the Fisheries Bill was amended at a late stage in the other place to include a permissive extent clause, or PEC. As other noble Lords have said, the PEC seeks to enable the UK Government to extend, through an Order in Council, certain provisions of the Bill to the Crown dependencies. As the Minister stated, this is largely related to the fulfilment of international obligations in Crown dependency waters. The use of PECs in relation to the Crown dependencies is extremely rare and fundamentally based on the established principle of prior consent. In this instance, both Guernsey and Jersey have consistently made absolutely plain to the UK Government the islands’ position towards the PEC as an unnecessary, unwanted and disproportionate measure.

The PEC offers neither a precise object nor a defined timescale for its scope and application. Furthermore, it does not contain any consultation provisions prior to its potential application. However, I welcome the words of the Minister about the committee that may be established.

In its present state the PEC is open-ended and overreached by the UK Government into an area where the main islands’ legislative frameworks are considered competent. In addition, the islands have stated that the UK’s effort to meaningfully consult—including through the fisheries management agreement—are belated and do not represent a solution to the PEC issue.

The Government still plan to go ahead with the use of the PEC unilaterally, and would use other consultative channels, such as the FMA, only as a supplementary method of engaging the Crown dependencies. I am briefed that both Guernsey and Jersey fundamentally disagree with the premise behind this and continue to oppose the PEC in the strongest terms. I am very supportive of them in this.

I will not repeat in detail the comments of other noble Lords on the report by the Constitution Committee of 9 November, except to say this. At paragraph 4, it states:

“The governments of the Channel Islands have expressed concerns about the ‘Permissive Extent Clause’ … We draw the attention of the House to the constitutional implications of this new subsection.”


At paragraph 7, it states:

“We are not persuaded of the necessity of Commons amendment 22. The Government should seek powers only when they are necessary and their use is anticipated.”


Finally, paragraph 9 of the report states that:

“Commons amendment 22 undermines the domestic autonomy of the Crown Dependencies and is contrary to long-standing practice. We recommend that the Bill be amended so that consent of the governments of the Channel Islands and the Isle of Man (as appropriate) is required prior to the use of these powers.”


By passing this amendment, the Government are going against the unanimous view of this House’s Constitution Committee. That is a serious matter and one that I regret.

The Government state that the Isle of Man has agreed to this amendment. I would like to point out the legal system there is Manx customary law, a form of common law. The relationship between the Crown and the Channel Islands respects the distinct laws and ancient customs of the islands, which are rooted in Norman-French customary law—an important difference, on which perhaps the noble Lord, Lord Pannick, might be able to elaborate. As a non-lawyer, I find this a perfect valid reason for their different view.

[Lord Pannick (CB)]

My Lords, I agree with the speech of the noble Lord, Lord Beith, and other speeches which have been highly critical—justifiably so—of Commons Amendment 22. Like the noble Lord, Lord Beith, I am a member of the Constitution Committee. As noble Lords have heard, we reported on 9 November that Amendment 22 raises issues of constitutional importance. It is the long-standing practice of Parliament that it does not legislate for the Crown dependencies without their consent. As your Lordships have heard, Amendment 22 has caused considerable concern in the Channel Islands, and understandably so.

It is particularly regrettable that the Government introduced the permissive extent clause at so late a stage of the passage of this Bill through Parliament. The amendment was tabled on 9 October, four days prior to Report and Third Reading stages in the House of Commons. The Bill had its First Reading in this House as long ago as 29 January. The 11th-hour tabling of the new provision has deprived this House of any opportunity to debate this amendment prior to today. It gave the House of Commons very little opportunity to consider the amendment. On a matter of constitutional importance, that is inexcusable.

It is particularly inexcusable when the hybrid procedures of this House prevent noble Lords, with very limited exceptions, participating remotely at this stage of a Bill. It means that those noble Lords who are unable to travel here to protect their health are simply deprived of a voice. On 12 October, when the Senior Deputy Speaker introduced the report explaining the hybrid procedure for Lords consideration of Commons Amendments, the noble Lord said by way of justification for limiting remote participation at this stage:

“By the time a Bill reaches these late stages, the issues have already been well debated”.—[Official Report, 12/10/20; col. 880.]


On this important provision, they have not been. That is another reason it is simply inexcusable for the Government to introduce a matter of constitutional importance so late in the Bill. I suggest that the Procedure Committee reconsider the hybrid procedure on ping-pong—the procedure that prevents remote participation apart from for a person moving a Motion—when, as in this case, a provision has not been previously considered by the House.

That would all be bad enough, but the introduction of a provision of constitutional importance so late in the passage of the Bill is especially objectionable when the Government do not even suggest that there is any urgent need to act on the powers they now wish the House to confer on them. On the contrary, the Minister was clear this afternoon, and in correspondence, that it was “highly unlikely” that these powers would ever be exercised.

The Minister was equally candid in his letter to the esteemed chair of the Constitution Committee, the noble Baroness, Lady Taylor of Bolton. He said—it has already been quoted but it is so extraordinary that it bears repetition:

“To be clear, we do not currently have any specific concerns which we would envisage using the PEC to address.”


Moreover, in that same letter, the Minister assured the committee he accepted that

“the Crown Dependencies take their international obligations extremely seriously; and I am confident that they would meet any required commitments, legislating domestically if required, in any normal circumstances.”

The position is clear. Even the Government do not suggest that there is any current or anticipated need for this extraordinary provision. They would simply like to have the powers in case something unexpected were to turn up.

When the provision was debated in the House of Commons, Sir Robert Neill, chairman of the Justice Committee, accurately described it as a

“‘break glass in emergency’ clause”,

and simply not good enough to justify what he described as

“trespassing on the constitutional integrity of the Crown dependencies”.—[Official Report, Commons, 13/10/20; col. 308.]

I agree, except that I would say “trampling all over”, rather than “trespassing on”. We should not break constitutional conventions because there is a remote possibility of a need to exercise powers in the future. Far less should we be doing so by way of a provision introduced so late in the passage of a Bill that it has not received the detailed consideration which it deserves.

Commons Amendment 22 is indefensible, except on the basis that any legislation for Jersey and Guernsey without the consent of the Channel Islands would have no legal effect there, for the reasons given by the noble Lord, Lord Anderson of Ipswich. I look forward to being briefed to argue the point before Mr Justice Anderson in the courts of appeal in Jersey and Guernsey, but for the obvious conflicts of interests that we would both have.

[The Deputy Speaker (Lord Lexden) (Con)]

Does any other noble Lord in the Chamber wish to speak? No. In which case, I turn to those listed for the debate and call the noble Baroness, Lady Bakewell of Hardington Mandeville.

Public Bodies Bill [HL]

Lord Pannick Excerpts

Monday 4th April 2011 Lords Chamber

[Lord Maclennan of Rogart]

I am very grateful to my noble friend Lord Elton for making that clear. There is a difference; in fact, there are at least two differences which may be of some significance, between government Amendment 60A and my Amendment 61AZ. The first is that in my proposal the Minister should be permitted to make an order only if he considered that,

“the order will achieve one or more of the objectives in subsection (1)”.

That embodies two points; first, that there should be an expectation on the part of the Minister that the power, “will achieve” one of the purposes; and, secondly, it does not require all the purposes to be achieved by the use of the power.

The Minister referred to my amendment as being in some ways less than his, in that it refers to,

“one or more of the objectives”,

whereas, in his amendment, the Minister has to consider,

“that the order serves the purpose of improving the exercise of public functions, having regard to—”.

It appears to me that the listing of,

“efficiency … effectiveness … economy, and … securing appropriate accountability to Ministers”,

is a collective, not a single test, or even one to be applied to two of these criteria. Therefore, I felt that the amendment that I had tabled was, in some ways, more realistic because it is quite often the case that effectiveness and economy are not necessarily the same and not necessarily both achievable by a measure of government. That is, it is desirable that they should all be achieved, but it cannot be certain and if there is a choice, it ought to be possible for the Minister to make that choice.

This is not a form of words, as I understand it, which just bows in favour of motherhood and apple pie; it is, as I see it, an opportunity for the Government to indicate, in the report that they will produce before Parliament considers the legislation, what it is that is moving the Government. I think it reasonable that, if they could demonstrate greater efficiency, greater effectiveness or greater economy, they should be able to say so and not necessarily have to tick all four boxes. However, this is probably a matter for construction by greater legal brains than mine and consequently, I hope that the matter might be reconsidered at a later date. I am very grateful to the noble Lord, Lord Taylor, for the changes he has proffered to the House, which are a substantial improvement on what went before.

[Lord Pannick]

My Lords, I, too, warmly welcome the amendments brought forward by the Minister. I, too, associate myself with all the tributes paid to him. I hope that the praise from your Lordships’ House does not cause him any embarrassment back at the ministry. I am a little disappointed, however, that he did not feel able to respond positively to the amendment in the name of the noble Lord, Lord Newton of Braintree, who all noble Lords will wish to see back in his place as soon as possible. That amendment would add fairness, justice, openness and transparency to the list of factors to which the Minister must have particular regard. The Minister suggested in his opening remarks that to add such concepts to the clause would impose what he described as an “abstract evidential burden”. I am sure that on reflection he will recognise that the concepts introduced by the noble Lord, Lord Newton, are no more abstract than the concepts of efficiency, effectiveness, economy and accountability that are included in his own very welcome amendment. I ask him to reflect further on the criteria in the amendment of the noble Lord, Lord Newton.

--- Later in debate ---

[Viscount Eccles]

My Lords, I should like to take this opportunity to pay tribute to Lord Colville of Culross. Lord Colville was serving on the Merits Committee when I joined it some five years ago. I am not serving on it now, of course, because I did my four years and then got cycled off. Lord Colville taught me an enormous amount about consultation. It was his subject: he knew it from A to Z.

The Merits Committee of your Lordships’ House considers more than 1,000 orders every year. It looks at the Explanatory Memoranda. I can tell you for sure that the members of the committee usually go first to paragraph 8, the consultation paragraph. There is an enormous amount of expertise in your Lordships’ House in assessing not only whether consultation has been properly done and whether the 12 weeks were sufficient but also what has been left out or might have been elided. Noble Lords are extremely skilled in going back to departments and questioning the presentation of these paragraphs. That also applies to the paragraphs in the impact assessment, if there is one required.

I imagine that the orders in the Bill, when it becomes an Act, will be submitted to a committee of this House as well as, presumably, to a committee of the other place—that is clear from the language in the Bill. This clause includes, as well as paragraphs (a) and (b), paragraph (g), which says,

“such other persons as the Minister considers appropriate”.

If I am allowed from the Back Bench to give an assurance, I can give noble Lords a little Merits Committee assurance that, if a committee of your Lordships’ House considers that the Minister has missed out on who it is appropriate to consult, then his department will be pretty sharply told. I hope that we do not underrate the capability of this House to make sure that consultation is done in a really workmanlike manner. Of course, it is never satisfactorily done because there are winners and losers at the end of consultation. Nobody is completely satisfied for ever that the consultation has been properly done but if there is a way of monitoring consultation it certainly exists in your Lordships’ House.

[Lord Pannick]

My Lords, I support Amendment 65, in the name of the noble Lord, Lord Hunt of Kings Heath, for three reasons. First, these remain very broad and extensive powers to abolish or modify a public body. It seems essential that there should be the broadest of consultation obligations so that the Minister is properly informed before a decision is taken. Secondly, public consultation does not require considerable expenditure if modern methods of communication are used—the point already made by the noble Lord, Lord Maclennan of Rogart.

Thirdly, if these powers are to be exercised in relation to public bodies—we are talking about public bodies—surely it is right and proper that the Government should consider the comments of all sections of the public who feel that they have something to say. Indeed, if there were to be no specific consultation duty in relation to members of the public and nevertheless a member of the public, knowing of the proposal, submitted representations to the department, then I assume that the department would consider them and take them into account in reaching its conclusion. With respect, I do not share the view of the noble Viscount, Lord Eccles, who drew attention to Clause (10)(1)(g), which provides that the Minister must consult,

“such other persons as the Minister considers appropriate”.

It seems to me highly desirable that there should be clarity in the Bill that there is an obligation to consult members of the public rather than leaving it as a discretionary matter.

--- Later in debate ---

[Lord Hunt of Kings Heath]

My Lords, in the light of the debate, given that this is a very modest amendment, would the Minister consider accepting Amendment 68? I beg to move.

[Lord Pannick]

I support the noble Lord’s observation. The Minister, in his response to the previous amendment, agreed that a full public consultation would be highly desirable in many, if not most, circumstances, but in some cases it would not be appropriate to have a full public consultation, and it seems to me that Amendment 68 deals precisely with that point.

[Lord Taylor of Holbeach]

My Lords, I am under instructions to resist—I think that is usually the phrase that is used. However, I understand the arguments that have been put forward by noble Lords to have a requirement, where public consultation does not take place, that at least the proposal is put on the website. I think that the Government are in a position to consider this and, if necessary, will bring forward an amendment at a later stage.