Military Interventions Overseas

Lord Pannick Excerpts

Thursday 25th January 2024 Lords Chamber

[Lord True (Con)]

That matter was alluded to yesterday. I said we would reflect on these matters in the usual channels. There was a debate on the Red Sea situation in the other place. I pointed out yesterday that we have a debate tomorrow in your Lordships’ House on Ukraine, on which there has not been a debate recently in the other place. The Government will continue actively to consider the best ways of keeping both Houses informed and involved in these situations.

[Lord Pannick (CB)]

Following the actions of the Houthis in pursuance of their slogan, “Death to America, death to Israel and a curse on the Jews”, and given the recent protest in this country in support of that appalling organisation, is it not high time for the Government to bring before Parliament a Motion to proscribe the organisation as a terrorist group?

[Lord True (Con)]

My Lords, as the noble Lord will know, we are sanctioning members of the Houthi organisation. I totally agree with his characterisation of the nature of that organisation, and I assure him that all these matters will continue to be kept under careful and constant review.

Israel and Gaza

Lord Pannick Excerpts

Monday 23rd October 2023 Lords Chamber

[Lord Pannick (CB)]

My Lords, the Statement and the comments of the noble Baroness, Lady Smith, rightly emphasise the plight of the hostages, more than 200 of them, including children, the disabled and the elderly, the taking of whom is a despicable crime. The International Committee of the Red Cross has said that it is in

“sustained, daily contact with Hamas”.

Will the Government urge the Red Cross to demand access to the hostages and to do everything it can to ensure their welfare, pending what we hope will be their return home?

[Lord True (Con)]

My Lords, we are making every diplomatic effort to secure that. Obviously, one is constrained by the environment in which everybody is operating and the people who have authority in that area. The United Kingdom Government certainly wish to see all hostages returned, and they should be returned forthwith. We hear that four have been released and that is very welcome, but these are human beings, not bargaining chips to be played with by terrorists to command media attention.

I focus on British nationals: we have to remember that not only were 10 British nationals, tragically, killed in the Hamas attacks but a further six British nationals are missing, some of whom are feared to be among the dead or kidnapped. Unfortunately, the reality of this situation is that the details of the effects of that monstrous attack are still only becoming clear, but we are working with Israel to establish the facts. We are keeping in close contact with other nations—and agencies, to respond to the noble Lord—to try to find a route to get the hostages released. The reality is that if Hamas had a single ounce of humanity, it would release all the hostages immediately but, sadly, they have already shown the type of people who they are.

Israel and Gaza

Lord Pannick Excerpts

Monday 16th October 2023 Lords Chamber

[Lord True (Con)]

My Lords, the British Government will bend all their efforts not only to securing the release and safety of British people who are missing but to supporting all those who have been kidnapped, taken and oppressed in the way that my noble friend describes. We are talking to a range of organisations and nations—sovereign states and others—which may have capacity to bring to bear on the Hamas leadership. Whether that will soften the hearts of some of the people who ordered this atrocity I hesitate to forecast. However, I promise my noble friend that the British Government will pursue the action that he refers to.

[Lord Pannick (CB)]

My Lords, I very much welcome the Statement and the eloquent comments of the noble Baroness, Lady Smith, and the noble Lord, Lord Newby. This is personal for me. My wife is Israeli. We have a home in Israel. We have friends with family members who were murdered by Hamas nine days ago. The Statement mentioned international law. Do the Government agree that the obligation of Israel to respond in a proportionate manner depends in very large part on the severity of the threat which it faces?

Do the Government further agree that there can be no doubt that the threat is very grave indeed, since Hamas aims not to negotiate a peace treaty or to secure a two-state solution but to destroy Israel? It has the military capacity to send thousands of missiles and we have seen that it has the ability and the willingness, astonishingly, to enter Israel to torture, murder and abduct its citizens simply because they are Jewish. Hamas does not care whether they are supporters of the Netanyahu Government or of a peace settlement. They do not care whether they are religious or secular, whether they are babies or elderly ladies. Do the Government agree that there is no country in the world that would tolerate such a threat on its borders and that therefore a military response is the only available response to the threat posed by Hamas?

Finally, do the Government agree that international law does not prohibit military action which, sadly and regrettably, will lead to civilian deaths, especially when Hamas hides behind the civilian population? Does the Minister agree that the essential difference between Hamas and Israel is that Hamas aims to kill civilians—Jews—while Israel does all that it can to avoid civilian deaths?

[Lord True (Con)]

My Lords, I thank the noble Lord for his comments. I offer my sympathy and concern to his friends and family.

This is an unprecedented situation. The UK stands side by side with Israel in fighting terror. We agree that Hamas must never again be able to perpetrate atrocities against the Israeli people of the kind that the noble Lord has so eloquently referred to. The UK has a strong track record of supporting international law. That remains our position. We call on our friends and partners to do the same. Israel has stated that it will operate within international law. As the noble Lord said, every country is allowed to defend itself. It is not for the UK to define their approach. Israel suffered an appalling terrorist attack. It has a right to respond and defend itself.

Counsellors of State Bill [HL]

Lord Pannick Excerpts

Committee stage
Wednesday 23rd November 2022 Lords Chamber

[Viscount Stansgate (Lab)]

My Lords, I will not unduly take up the time of the Committee in introducing this amendment because my sense is that there are many Members who would not necessarily want to waste scarce parliamentary time unnecessarily.

My amendment is simple and straightforward: it proposes that, once the Bill has reached the statute book, if a Counsellor of State dies then the King may provide a replacement. It does not say the King has to do so; it simply says that he may if he wants to, and proposed new Section (1A) in the amendment provides the mechanism for doing so with the suitable involvement of Parliament. That is it.

The amendment is designed to be helpful. After all, the Bill is before us because the King has suggested that changing the Regency Act 1937 would be helpful to him in the discharge of his duties, and has asked us that two new names be added for life to the list of Counsellors of State. The Committee will know that both Princess Anne and the Earl of Wessex have already served in this role in years gone by.

As the Leader of the House said at Second Reading, it is the custom and practice for Counsellors of State to act in pairs, and he gave several examples in his speech. We saw that with our own eyes at the State Opening of Parliament when the Prince of Wales, as he then was, and Prince William, as he then was, acted as Counsellors of State and made it possible for this Session of Parliament to be opened. I believe that is the only time that Her late Majesty the Queen ever delegated these functions to Counsellors of State because of illness.

The Bill before us will solve the immediate problem and my amendment seeks only to avoid another, and to save some time. If one of the new Counsellors of State proposed in the Bill were to predecease the King, action would have to be taken again. We might even have to have a new Bill. Why? Because, as the Committee well knows, underlying the Bill is the fact that at least two of the existing Counsellors of State would not be publicly acceptable in the role that they would then have. That is why the King has recognised that there is a problem and why he has suggested the solution outlined in the Bill. My amendment is designed merely to help the King in future, and I commend it to the Committee.

[Lord Pannick (CB)]

My Lords, the Delegated Powers and Regulatory Reform Committee reported on the Bill in terms that are regrettably rare nowadays. It said:

“This Bill contains no delegated powers.”


The noble and learned Lord, Lord Judge, has not had the opportunity here to complain about delegated powers, and I am very pleased about that. I should be very sorry to see a delegated power introduced at this stage, particularly a delegated power conferred on His Majesty. In 1867, Walter Bagehot wrote that the monarch has three rights—the right to consult, the right to encourage and the right to warn. The monarch has no right and no power to produce delegated legislation. I can think of no precedent for the Crown having a delegated power—certainly not since 1689.

[The Lord Privy Seal (Lord True) (Con)]

My Lords, the noble Viscount, Lord Stansgate, presses his amendment with good intent. He has expressed his views at every stage of this process with the utmost civility and courtesy. I thank him for that.

I understand that, from his perspective, he seeks to add a certain flexibility or, as he would see it, some insurance to the system. However, as the noble Lord, Lord Pannick, implied in his important intervention, it would add further rigidity, novelty and potentially delay to the procedure. The steps in the amendment are not required and they are unwelcome. The amendment goes considerably further than the limited modification proposed in the Bill. As I submitted to your Lordships at Second Reading, the nature of this Bill flows from a message from His Majesty. I think it was the feeling of the House at Second Reading that the Bill is appropriate and proportionate to the circumstances in which we find ourselves.

The noble Viscount is proposing a wider change to the underlying architecture of the legislation. As indicated in the intervention by the noble Lord, Lord Pannick, it would grant the sovereign a new authority—one which was not referenced in the King’s message—but does not indicate on what basis any such decision would be made. It would also introduce a novel parliamentary process into these matters. In this respect, it is a departure from the current framework and the proposition before us, and the Government do not believe that it is necessary or desirable.

I repeat that the Government believe that the approach suggested in the Bill is a reasonable and practical solution in the current context. The Bill as currently drafted will create a sufficient pool of counsellors who will hold this role for their lifetimes. As the noble Viscount will understand, with the effluxion of time, the order of succession will evolve and so will the situation once this Bill becomes an Act.

Although I acknowledge the spirit in which this amendment is tabled, the history of the Regency Acts demonstrates that it is a challenging task for Parliament or any legislator to predict the future. I suggest that we do not seek to do so here but seek rather to respond to the task at hand and proceed in the light of the message that the sovereign has sent us. It indicates his wishes and, I feel, the wishes of the House, that this practical, limited and moderate approach should be taken at the present time. I urge the noble Viscount to withdraw his amendment.

--- Later in debate ---

[Lord Berkeley (Lab)]

My Lords, in speaking briefly to Amendment 2 I can also say that I will not be moving Amendment 3 because, in his reply at Second Reading, the Minister gave an excellent and wide response. Amendment 2 is designed to formalise the Counsellors of State after the accession of King Charles, adding the Earl of Wessex and the Princess Royal to the list.

It is constitutionally very important that when the monarch is not there, this will allow the Government to continue, because we have a constitutional monarchy. That means that some of the counsellors—all of them, probably—come from the family. It is a large family and I know that King Charles has previously said that he thought it should be smaller. I do not think he has said that since he inherited the Throne, but there we are. The interesting thing to me is, what is the concept of a working royal? The counsellors obviously support the monarch in his constitutional role, so, as I think the Lord Privy Seal said at Second Reading, they clearly should be both in the UK and working, if for no other reason than that they know what is going on.

Parliamentary approval of counsellors is necessary, too, which is what we are talking about today, because there has been a history—if not recently—of monarchs going a little mad or otherwise breaking the law, as Parliament saw it. It is right that we prepare ourselves for the future. While it is also right that Parliament agree to the monarch’s proposal to add two Counsellors of State, I do not see why we cannot at the same time remove those who are no longer apparently thought suitable.

The Lord Privy Seal said at Second Reading that

“the legislation already contains provisions whereby Counsellors of State are excepted from duties if they are overseas”

and that

“in practice, working members of the Royal Family will be called on”.—[Official Report, 21/11/22; col. 1194.]

My Amendment 2 just tries to clarify that. Why not name the people concerned, rather than having to interpret what a working royal is?

I do not know whether this is from embarrassment or fear of a media frenzy. I hope it is not, but it is an important constitutional issue. It has nothing to do with who has what title or what clothes they wear for television appearances, or anything else like that. If the members of the family are not working royals, there is a fear, as the noble Lord, Lord Balfe, mentioned in his excellent speech on Monday, that the Duke of Sussex would jet in and claim that he was working because he thought that would be a good idea. A definition would be a good thing, and I see no reason why they should not be named in the Bill.

I am not going to press this amendment because I support the Bill, on the whole. However, a little clarification from the Minister, if he is able, would be very helpful. I beg to move.

[Lord Pannick (CB)]

My Lords, it seems unnecessary to exclude the Duke of Sussex and the Duke of York who, for reasons we all know and understand, are not going to be performing royal duties in the immediate future in any event. As to the drafting of the noble Lord, Lord Berkeley, in proposed new paragraph (e), that there should be excluded

“any other person who in the opinion of the Lord Chancellor has not in the … preceding 2 years undertaken Royal duties on a regular basis”,

this leaves rather open for analysis what “regular” means. Does it mean once a month, once a week or once a year? What if they are ill for a period of time? The idea that the Lord Chancellor should determine this question without any criteria seems rather unsatisfactory. Mr Dominic Raab has more than enough to do at the moment.

[Lord Balfe (Con)]

I will make one small point. We will have five Counsellors of State, two of whom are not going to be used, namely the Dukes of Sussex and of York. That means that, since you have to have two Counsellors of State acting if the monarch is away, if either the Princess Royal or the Duke of Wessex were unavailable, we would have only Princess Beatrice left. We do not have anyone else on the reserves bench, so to speak.

I doubt whether we have heard anything, but noble Lords will recall that I suggested that the Princess of Wales should added to the list. I still think that would be a sensible idea because she will of course become a Counsellor of State when her husband succeeds to the Crown. Again, I will not support any votes, but the palace should look at this because you only need one person to be ill, and you have Princess Beatrice as a Counsellor of State. Although she is probably acceptable, she is virtually unknown.

Counsellors of State Bill [HL]

Lord Pannick Excerpts

2nd reading
Monday 21st November 2022 Lords Chamber

[Lord Pannick (CB)]

My Lords, this Bill, which I support, would not justify a whole episode of the television series “The Crown”. However, it raises some interesting constitutional questions, despite the dismissal of its significance by the noble Baroness, Lady Jones. I would welcome the views of the Lord Privy Seal, in writing or when answering this debate, on those questions; I do not propose to table any amendments.

Section 6 of the 1937 Act which this Bill amends is confined to cases when His Majesty is ill or absent abroad. Does the Lord Privy Seal agree that it is anomalous that there could be no delegation to the Counsellors of State if the monarch were at Balmoral, unable to travel and unable to receive visitors because of snow or fog, but that there can be delegation if the monarch is in Paris for the day and easily able to receive a visitor or return to London to conduct urgent business? It seems anomalous that if there is a problem within the United Kingdom, no delegation can be made.

My second question arises from the fact that some of the most important royal functions have been performed by the monarch when abroad. For example, in 1908, when Edward VII was unwilling to interrupt his holiday in Biarritz, Mr Asquith was summoned there to be appointed Prime Minister. In the very useful House of Commons Library paper, Regency and Counsellors of State, written by Mr David Torrance and published in May this year, there is a reference to what happened when Her Majesty Queen Elizabeth II was on a Caribbean tour in 1966. There was a request by the then Prime Minister, Mr Harold Wilson, for a Dissolution of Parliament. The assent of Her Majesty was contained in a letter sent to Mr Wilson.

We now have the advantage of videoconferencing and documents can be sent as email attachments. We have all sorts of modern communications and, one would hope, the occasions on which His Majesty cannot personally perform royal functions because he is abroad would be reduced. I entirely accept my noble friend Lord Janvrin’s point that ceremonial occasions are best performed in person and I suggest that important constitutional functions should be performed by the sovereign personally. The Lord Privy Seal emphasised the role of the sovereign in giving consent to legislation. Can he answer the question of whether, in principle, His Majesty could signify his consent to legislation from abroad, sending his signature by email—a point raised by my noble friend? Equally, could His Majesty appear by videolink from abroad to preside over a Privy Council meeting? These important functions should be performed by the sovereign personally.

My third question concerns the scope of the powers of Counsellors of State. There are limits on these powers, as we have heard: Counsellors of State may not dissolve Parliament, except on the express instructions of the sovereign; they may not grant any rank, title or dignity of the peerage. But, in academic debates, the question has arisen of whether there are implied limits on the powers of the counsellors. Professor Vernon Bogdanor, in his book The Monarchy and the Constitution, quoted a memo written in 1954 by Sir Edward Ford, assistant private secretary to Her Majesty Queen Elizabeth II. Sir Edward said that Counsellors of State have no power to make decisions. They are,

“if one may say it without disrespect to their persons—merely a piece of constitutional machinery—the nearest thing to a human rubber stamp that has perhaps yet been devised.”

Professor Bogdanor pointed out that the legislation provides no procedure for what should happen if the Counsellors of State disagree. He said that is because the question is “absurd”, since the counsellors have no decision-making power.

Another distinguished constitutional scholar, Professor Rodney Brazier, took a different view in his 2005 article in the Cambridge Law Journal. He said that, if the King were seriously indisposed and could not express a view, counsellors may have to take decisions to deal with urgent matters—for example, the sudden death of the Prime Minister. Can the Minister illuminate us, or at least give some guidance, on whether the Counsellors of State are merely instruments of the King’s will or have an independent decision-making function where necessary?

I shall raise my fourth point tentatively because of its sensitivity. The noble Lord, Lord Berkeley, has already referred to it. The noble Lord, Lord Janvrin, made a football analogy, saying that it is valuable to have two further players on the bench. I would respectfully suggest that it is a curious feature of the Bill to retain two people on the team sheet who will not play any part in the match. Of course, I understand why that is.

My final point is to express hope that the Government may think it time to conduct a general review of the provisions of the 1937 Act, as amended, to see whether they are appropriate for the modern world or can be improved. This little Bill does not provide an opportunity to resolve these questions but I hope the Government will consider them.

University of Bristol: Jewish Students

Lord Pannick Excerpts

Wednesday 24th March 2021 Lords Chamber

[Lord Parkinson of Whitley Bay (Con)]

I first pay tribute to my noble friend’s work on the IHRA definition and getting a number of bodies, including Her Majesty’s Government, to sign up to it. He is right that adoption of that working definition is only a first step. While the Government think it is vital, it is not enough on its own. That is why we continue to work with the sector to make sure that it is doing everything it can to stamp out anti-Semitism.

[Lord Pannick (CB)]

I draw attention to my registered interests and very much welcome the Minister’s comments. Has he noted that Professor Miller has suggested that by joining a university Jewish society, students are thereby associating themselves with racism and Islamophobia? Will the Minister note that many students join Jewish societies because they wish to attend religious services or go to parties? They may simply wish to have a nourishing and regular bowl of chicken soup.

[Lord Parkinson of Whitley Bay (Con)]

I completely agree with the noble Lord. That suggestion is at the heart of this issue because it implies that Professor Miller can understand the motivations or the political views of Jewish students at the University of Bristol who join a Jewish society. We think that is wrong and very ill-founded, and that is what causes us such concern in this case.

Business of the House

Lord Pannick Excerpts

Thursday 4th April 2019 Lords Chamber

[Lord Mackay of Clashfern]

That is what it says, but why should we accept that? It is supposed to be a negotiation. If we wanted an alternative arrangement, I should have thought that the position should be us saying what that alternative is. I have heard, “We don’t know what the UK wants”, again and again. A specific amendment to the agreement might well be subject to further consideration.

[Lord Pannick (CB)]

My Lords, the House of Commons sent us a Bill that its Members consider urgent. We should get on and consider its merits and demerits. Forty-nine noble Lords have put their names down for Second Reading, including the noble Lord, Lord Forsyth. There will be ample time during Second Reading for all these points to be explored. I suggest that we get on and do it.

[Lord True]

My Lords, when the great US Constitution was written, there is a story of, I believe, Thomas Jefferson—

--- Later in debate ---

Moved by

[Lord Pannick]

That the Question be now put.

[The Deputy Speaker (The Countess of Mar) (CB)]

My Lords, I am instructed by the House to say that the Motion “That the Question be now put” is considered a most exceptional procedure, and that the House must not accept it save in circumstances where it is felt to be the only means of ensuring the proper conduct of the business of the House. Further, if the Member who seeks to move it persists in his intention, the practice of the House is that the Motion be put without debate.

[Lord Pannick]

I wish to move the Motion.

[The Deputy Speaker]

The Question now is that the Question be now put.

--- Later in debate ---

[Baroness Noakes]

The reason we do this is that the other place does not do a very good job of scrutinising legislation. There are a lot of reasons for that. Compared with the normal proceedings of your Lordships’ House, the proceedings in the other place are much more party political. Anybody who reads Hansard can see that. In particular, since 1997, when Mr Blair introduced programme Motions, the amount of time dedicated to legislation has been severely truncated at all stages of Bills going through the other place. They often arrive in your Lordships’ House with very little scrutiny, and with some clauses and parts of Bills not scrutinised at all.

We have an important job to do. When my right honourable friend Sir Oliver Letwin was moving one of his Motions yesterday in the other place, he freely admitted that the Bill—which we will move on to at some stage—needed to be “tightened” and that that would be done by the House of Lords. So the other place now expects this House to do the job of perfecting legislation. That has been the case for some considerable time, but we have to have procedures to do it.

Standing Order 46 sets out the bare bones of how we approach legislation. It states:

“No Bill shall be read twice the same day; no Committee of the Whole House shall proceed on any Bill the same day as the Bill has been read the Second time; no report shall be received from any Committee of the Whole House the same day such Committee goes through the Bill, when any amendments are made to such Bill; and no Bill shall be read the Third time the same day that the Bill is reported from the Committee, or the order of commitment is discharged”.


Those arrangements—

[Lord Pannick]

Does the noble Baroness accept that, forceful though her points no doubt are, we have now been discussing the same points for three hours and 46 minutes, in the context of a Bill that has been sent to us by the House of Commons on an urgent basis? Does she not accept that it really is time to move on? She has put her name down for Second Reading. All these points could be made in her Second Reading speech.

[Baroness Noakes]

I fully hear what the noble Lord, Lord Pannick, says, but I have a right to be heard on the Motion that I have put on the Order Paper. A considerable amount of the time has been taken up by noble Lords moving closure Motions, which involves two Divisions every time.

Business of the House

Lord Pannick Excerpts

Tuesday 26th March 2019 Lords Chamber

[Lord Newby (LD)]

My Lords, over recent months a number of quite extraordinary claims have been made about the consequences of actions relating to Brexit. The claim of the noble Lord, Lord Forsyth, that all that separates us from tyranny is whether we take this statutory instrument before or after a committee has expressed a view on it seems up there with the most extraordinary.

This House has been considering statutory instruments that are some 650 pages long. In this case, we are looking at a statutory instrument that is of minuscule length, the meaning of which is absolutely clear and the purpose of which is not disputed by anybody. Therefore, it seems that if ever there were a case where we could do without the normal rules with no jeopardy to the future of the state, this is it. Who in this House thinks we will not pass this statutory instrument? Who thinks that there is any ambiguity in its wording? The sooner we have certainty on a whole raft of Brexit issues, the better. This is one straightforward, easy bit. I suggest we deal with the easy bit tomorrow and then start worrying a bit more about the harder bits.

[Lord Pannick (CB)]

My Lords, I support the Motion in the name of the Leader of the House, but when she moves the Motion tomorrow relating to the substance of this statutory instrument, could she address a question not of tyranny, but of legality? A number of lawyers have expressed concern about the legality of this statutory instrument. The concern is that it sets out two alternative exit days: 12 April or 22 May. The power of Ministers to vary exit day is contained in Section 20(4)(a) of the EU withdrawal Act 2018, which says that a Minister may by regulations,

“amend the definition of ‘exit day’ … to ensure that the day and time specified in the definition are the day and time that the Treaties are to cease to apply to the United Kingdom”.

The legal concern which some lawyers have expressed is that a power to specify the day and time when the treaties are to cease to apply is not satisfied by identifying two possibilities; it is not possible, if this SI is enacted, to identify exit day simply by reading it.

I emphasise that I am not adopting this argument but simply drawing attention to it. I ask the Leader, before tomorrow, to consider this point; to consult, if necessary, with the law officers; and to give an assurance to this House that the Government have considered the point and are satisfied that this statutory instrument is a valid one. Whatever one’s views on the politics of this difficult situation, I hope we can all agree that it would be complete disaster to adopt an invalid statutory instrument on such an important point.

[Lord Forsyth of Drumlean]

Is that not another reason why we should have the report from the Joint Committee?

[Lord Pannick]

No, because for my part I will be quite satisfied if the Government consider this point. Other noble Lords, including members of the committee, now have notice of this question, and if anyone thinks the point is worth discussing tomorrow, they can have a proper opportunity to do so.

[Lord Robathan (Con)]

The noble Lord has much greater experience of the law than I and most of the people in this House do. Therefore, could he explain whether there would be any possibility of a challenge to the statutory instrument—which he and I would not wish—if we have not followed the correct procedures, as my noble friend Lord True wishes?

[Lord Pannick]

There could be the possibility of a challenge if this point had any substance to it. I am concerned that we do not adopt or approve a statutory instrument without consideration of this point. The alternative would be to have a statutory instrument that specifies 12 April as exit day and if, as we approach that day, it appears that the date for us leaving the EU will be later than that, a further amending statutory instrument is brought forward.

I emphasise that I am not telling the House that this is, in my view, a fatal amendment to this statutory instrument. I am raising a concern that has been expressed by some lawyers about this point. I would welcome it if the Leader were to consider the point—with the law officers if appropriate—and address it tomorrow.

[Lord Hope of Craighead (CB)]

It is not just a question of alternatives, is it? If you look at the text of the first alternative, you cannot determine what the date is by looking at the words in the instrument. Is that the point that the noble Lord is seeking to make?

[Lord Pannick]

There are two points. You cannot tell the date on which we are to leave simply by reading the statutory instrument, and that date, on the drafting of the statutory instrument, depends on an external event which is certainly not within our control.

Privileges and Conduct Committee

Lord Pannick Excerpts

Monday 17th December 2018 Lords Chamber

[Lord Pannick (CB)]

My Lords, I declare my interests: I have been a friend and colleague of Lord Lester for many years. I assisted him during the disciplinary process, although I was not allowed to speak on his behalf. On 15 November, I moved the amendment that the Commissioner for Standards had failed to comply with paragraph 21 of the Code of Conduct because the process was not fair or in accordance with natural justice, which the House approved by 101 votes to 78. I have not tabled an amendment today because, as the Senior Deputy Speaker mentioned, Lord Lester has resigned, but I want to make three points.

First, I think it is a matter of regret that the committee did not accept the view expressed by the House on 15 November. We had a three-hour debate and views were expressed on both sides of this difficult issue. I expected the committee to move forward with an approach that accepted the view of the House, rather than contradicting it. When we engage in parliamentary ping-pong, it is with the House of Commons, not with ourselves—not with a committee of this House. It is regrettable that the committee did not accept the view of this House.

Secondly, although the committee has satisfied itself that the procedures in this case were fair and in accordance with natural justice, I can tell the House that that is not the view of a substantial number of Members, who have expressed that view to me. From my discussions with senior lawyers and judges outside the House, I can also tell the House that that community’s overwhelming view is that, but for parliamentary privilege, this report would not withstand challenge in a court of law. That is for all or some of the reasons set out in the opinion of David Perry QC and Rosemary Davidson attached to the original report of the committee; I agree with the Senior Deputy Speaker that it is unnecessary and inappropriate to go into that today.

The courts would not find what is said in paragraph 15 of the second report from the committee very persuasive. It relies on a decision made by Lord Denning in 1952, but the standards of disciplinary justice and administrative law have moved on in the last 66 years. The courts would not find the arguments summarised by the Senior Deputy Speaker—that this is an internal disciplinary matter, where we follow the same procedures as other parliamentary assemblies—very persuasive. This is a matter where an individual’s reputation has been destroyed by reference to allegations of what is said to have occurred over 11 years ago. That requires the highest standards of fairness in the procedures. That point was made by the Joint Committee on Parliamentary Privilege, chaired by the noble and learned Lord, Lord Nicholls of Birkenhead, in 1999. I agree with what his committee said at paragraph 280 of its report, that disciplinary proceedings in Parliament, whether against Members or non-Members, should be brought into line with what were described as “contemporary standards of fairness”. It said at paragraph 281 that it was “essential” that there should be,

“safeguards at least as rigorous as those applied in the courts and professional disciplinary bodies”.

For the avoidance of any doubt, I emphasise that I am not saying, and I have never said, that the House should believe Lord Lester rather than Ms Sanghera. I do not know who is telling the truth about this matter. I am not naive. I recognise that otherwise respectable men do very odd things in relation to sex. I have constantly argued that the only fair and effective way to determine who is telling the truth is to follow the procedures, which include cross-examination, which are accepted in courts of law and other disciplinary tribunals. I recognise of course that the process must be fair to the complainant as well as to the person accused, but there is no inconsistency in believing, as I do, both that sexual harassment and abuse of power are serious wrongs that should be properly investigated and, when proved, should be punished, and that allegations of this nature, like all other allegations of serious misconduct, must be addressed by a fair and rigorous process. That is not disrespectful to complainants or—to answer the Senior Deputy Speaker—damaging to the reputation of this House. Indeed, if anything is damaging to the reputation of this House it is not to adopt in relation to these matters procedures that withstand serious scrutiny.

The Senior Deputy Speaker also suggested that it is unfair to criticise the commissioner because she cannot answer back. With great respect, that is wrong in principle and in fact. It is wrong in principle because in any other public context a decision can be challenged in court. The commissioner cannot be immune from reasoned criticism, especially when paragraph 21 requires her to act fairly. It is wrong in fact because the commissioner did answer back. She responded to the points made by Lord Lester to the Privileges and Conduct Committee.

My third and final point is that the committee should take a hard look at our procedures for the future. Those procedures ought to implement the recommendations of the Nicholls committee in 1999, particularly those relating to cross-examination and the right to legal representation. I note that in Written Answer HL 2916 on 16 November 2017 the Senior Deputy Speaker said in relation to complaints of sexual assault and sexual harassment:

“The procedures and processes for investigating complaints made under the Code were not designed with complaints of this nature in mind and this is something … the Committee for Privileges and Conduct will need to consider”.


This case has illustrated that the noble Lord was correct in that statement. The procedures are not designed to address a complaint of this nature, and careful consideration is now required as to what amendments to introduce in the light of this unhappy episode. I say “unhappy” because it has been a painful experience of course for Ms Sanghera and for Lord Lester, but also for many noble Lords, including myself and, I am sure, the members of the committee. I have much regretted taking a different view on this issue from many noble Lords who I much respect.

--- Later in debate ---

[Baroness Kennedy of The Shaws (Lab)]

My Lords, I was not present at the previous debate. Ironically, I was in India speaking to a gathering of senior judges about the failure of justice systems to deliver justice for women and the underlying problems, sometimes with the law but more often with attitudes, that persist in our societies to the detriment of women.

Had I been here, I would not have voted. I would have recused myself because of my friendship with Anthony Lester. I have known him since I was a young barrister. I have huge admiration for him, and my fondness for him and his family is considerable, but we do not sit in judgment in cases involving a friend or a colleague. No juror would sit in a case where a friend was in the dock; no judge would sit in such a case. That is because friendships colour our judgment. We do not want to think ill of a friend. We see their pain and feel their humiliation. We hear their side of the story and want to believe it. That is in the nature of friendship; we are partisan.

That was why we created in this House an independent commissioner. It was because we recognised that the risks of partisanship were great. We recognised that institutions often protect their own, as we had seen the scandals around the Catholic Church, the Anglican Church, the BBC, the police and different aspects of the establishment. Reflecting on all that, we created the current rules.

I ask the same question as the Senior Deputy Speaker: when the previous debate took place, who was in the House to make the case for the complainant, to speak as her friends and to speak of her character and achievements? That was why, when I read the Hansard of the debate, I was covered in gloom: it was an ill judged and misconceived debate. Although it was presented as being about process, the noble Lord, Lord Pannick, and others expressed views that implied they found such an accusation difficult to believe of their friend. That is how we all feel about our friends. The debate was presented as being about process, but it was not about justice.

All the tropes that imply that women are somehow not be to be relied on were presented to this House; for example, about delay. We have learned that delay is not a reason for not believing somebody, especially when they have experienced some transgression of a sexual kind. Things were said about writing something nice in a book about somebody who might have done something inappropriate to you, but probably every woman in this House will tell you how you get on with business after somebody has behaved inappropriately and try to normalise it so that your relationships can continue, especially if your promotion, your Bill, which you are trying to get through Parliament, or your pupillage might rely on the good will of the person who has crossed the line.

I want to remind the House of the terrible folly that has blighted this distressing business in the way that it has been discussed in the media and in this House: the confusion between criminal trial rules and disciplinary processes. This is not a criminal process—I want to emphasise that to many of the older lawyers in this House who do not seem to have kept up with the times and the disappointment that women feel about how legal processes fail them. This is a disciplinary process. Talk of proof beyond reasonable doubt, rigorous cross-examination and the need for counsel is wholly inappropriate.

Let us remember why: we are here dealing with an imbalance of power. That is the basis of the complaint. Women are complaining that their working lives and professional interactions are blighted by sexual harassment. There will be few women in this House who have not experienced it at some point in their careers. Many of us just learned to brush it off and get on with things but the young do not accept that any more; they want proper processes and they do not want it to be dealt with in the way that has been described by many of our older lawyers. Young women will not come forward to make complaints about powerful men if they are going to be subjected to Old Bailey-style quizzing in the presence of the very Lord they are complaining about.

Let us imagine that it is a young librarian in this House who has been groped by a Peer. Is she really expected to face him or his well-heeled lawyer? How do we create equality of arms when we have a Lord able to secure the professional services of a top QC and the young librarian can afford no such grandeur? Do we find some low-level lawyer and pay him or her out of the public purse when we are cutting legal aid so much to the bone that most people are having difficulty finding representation? Could we justify it? It was for all these reasons that Members of this House devised a system in keeping with most disciplinary procedures, using the inquisitorial method, not the traditional adversarial method. That means an independent assessor, arbitrator or commissioner investigating the complaint, sensitively testing its veracity, applying the same careful, probing attention to the account of the person complained of and then allowing each the opportunity to respond to the account of the other. The commissioner then reaches a conclusion on whether the complaint has probity.

I have sat in that role on a number of occasions. She has the advantage over any of us in that she has heard the live accounts of both parties. We invented this process without complaint at the time. I have no doubt that it could be improved and, as we go forward, I think it should be. Because of my own experience in these cases, sitting as the commissioner did, I suggest that it is better to sit with another assessor, as I usually do. I have always felt that I benefited from the help of others in evaluating credibility. The commissioner in this case has been subjected to wholly unjust criticism. She is a very experienced solicitor and we chose her carefully after a competitive process. She has dealt, in her 40 years’ experience, day in, day out, with the stuff of humankind, sitting as a judge in mental health matters. She is not an acquisitions and mergers lawyer, a commercial contracts lawyer, or someone dealing with fine points of law in the Supreme Court, but she has dealt, day in, day out, with the stuff of human frailty—human falls from grace and issues of dishonesty and honesty. We burdened her with the responsibility of judgment on our behalf and she deserves our respect, rather than what she was treated to.

I shall mention one area where I think she may have been wrong in law. She took the view that the allegations stood or fell together. While she may have felt handicapped by Lord Lester’s position that all the matters were fabricated, it was quite possible, for example, that there was inappropriate conduct and an unwelcome sexual pass but that the business of having a discussion about coming into this House, perhaps sitting on the Cross Benches—a discussion that many of us might have had with talented persons we thought might have contributed to this House—might have been misunderstood. The two may have become conflated, so to have felt that the allegations all stood or fell together seems to me a mistake. Evidence is not a seamless role: you can be absolutely truthful and right about one thing and mistaken about something else. The Privileges Committee, however, agreed with the commissioner’s decision and this House will have to make a decision too.

I suggest to the House that those who are friends of Lord Lester, like me, should not be voting. I will not vote. It would not be appropriate: I am conflicted between my friendship with Lord Lester and my desire to see greater justice for women. I believe that we still have not got the system for women right.

Before I finish, I want to say that I think the suspension of four years was too long, but that boat has sailed now that Lord Lester has resigned.

[Lord Pannick]

As a matter of information, it is not my intention to call a vote today.

[Baroness Kennedy of The Shaws]

That is a source of relief to many of us. It would have been very inappropriate, as it was on the last occasion.

I feel very sad about this whole business. I am sad for the complainant. I am sad that the commissioner has had a tough time. I am sad for Lord Lester, his wife and his family. I want us to make a pledge to behave better. As men and women, we are trying to remake our world. We want an equal society. We will achieve that only when there is mutual respect between men and women. We can only do that together, as men and women. This House should see that we do that as we go forward. These processes have to be good enough for the job.

EU Council

Lord Pannick Excerpts

Monday 17th December 2018 Lords Chamber

[Baroness Evans of Bowes Park]

This Government are going to deliver on the wishes of the British people, as expressed in the referendum. We and the EU have been clear that this is the best deal possible. It is a deal that we have worked extremely hard to secure and it will lead to a strong relationship between the UK and the EU in future. That is what we have been working towards and want to deliver to the British people, because that is what the British people wanted.

[Lord Pannick (CB)]

My Lords, I ask the Leader: what will happen if, as seems very likely, the House of Commons does not approve the deal in the week of 14 January? Are the Government prepared to seek an extension of the Article 50 process in order to avoid the worst possible result, which is that we leave the EU with no deal?

[Baroness Evans of Bowes Park]

The Government will be working very hard to get the deal through the House of Commons. But, as I said in response to a previous question, if the House of Commons chooses to reject the deal, there is a process set out in legislation, which we will follow.