Referendums: Constitution Committee Report

Lord Pannick Excerpts

Tuesday 12th October 2010 Lords Chamber

[Lord Pannick]

My Lords, I want to focus on the Government’s written response to the committee’s report. The Minister, Mr Harper, said that the Government do not share the committee’s concern that referendums in the past have been used as a tactical device in an ad hoc manner. He assured noble Lords and the committee that the Government are committed to the use of referendums as a means of giving people a greater say in politics. The evidence which the committee heard—I declare an interest as a member—clearly established that Mr Harper is simply wrong in his analysis of the past and that the current proposals the Government are putting forward strongly suggest that Mr Harper’s hopes for the future are unlikely to be met.

As to the past, some of the most striking evidence we heard is summarised at paragraphs 37 and 38 of our report. The noble Lord, Lord Goodlad, has already mentioned the evidence of Professor David Butler, of Nuffield College, Oxford, that normally referendums happen only when the Government think they are going to win. It may be that the next referendum will happen only because the Government think that they are going to lose. Steve Richards, the chief political commentator at the Independent newspaper gave similar evidence. He emphasised that the referendum is a tool used by political leaders to suggest that they are giving away powers when in fact they have carefully controlled the circumstances to ensure that they attain the desired result.

None of this should take anyone by surprise. The referendum is a powerful political mechanism and politicians will use it in the way they use all other political mechanisms—to advance their own political agendas. Referendums in the past have simply not been used to give people a greater say in politics— Mr Harper’s aspiration. Indeed, if that had been the case, important social reforms such as the abolition of capital punishment, homosexual law reform and race relations law would have been prevented or at least severely delayed.

Of course, people must be encouraged to have their say on political questions, but decisions on such matters are for Parliament. Parliament has the task not merely of informing itself but also of leading public opinion where appropriate. Its task is not simply to identify what public opinion is and then to follow it.

If we confine our attention to constitutional issues, we see that it is simply not the case that the referendum has been used consistently in the past; it has been used wholly arbitrarily. Major constitutional change has occurred in this country without a referendum: the Parliament Acts of 1911 and 1949, the decision in 1966 to give the right of individual petition to the European Court of Human Rights, the Human Rights Act 1998 and the removal of almost all hereditary Peers from this House in 1999. The committee’s report is surely correct, therefore, in stating at paragraph 96 that the inconsistency in the use of the referendum in this country supports the view that the referendum is at heart,

“a tactical device rather than a matter of high constitutional principle”.

That is the past. As to Mr Harper’s hopes for the future use of the referendum as a means of giving people a greater say in politics, the evidence of this Government’s record so far does not suggest any move away from the tactical use of a referendum as, when and to the degree that it suits the Government. Mr Harper’s letter includes a list of the matters on which they are considering referendums. It does not include their plan to reform this House to introduce a wholly or mainly elected upper Chamber—the noble Baroness, Lady Jay of Paddington, referred to this matter in opening today’s debate. The question inevitably arises why, if the Government are so keen, as Mr Harper tells the committee and the House, on the referendum as a means of giving people a greater say on major constitutional reforms, the public are not to be given such a say on House of Lords reform.

The Government are proposing a referendum on the voting method for elections to the other place, but as your Lordships well know, the Parliamentary Voting System and Constituencies Bill will offer the public a choice only between the present first past the post system and the alternative vote method of election. Any objective exercise to identify the views of the public would include the choice of proportional representation as a means of electing the other place; indeed, it has long been the view of those on the Liberal Democrat Benches that such a system should be adopted.

I, like all your Lordships, have great admiration for the debating skills of the noble Lord, Lord McNally, as well as for all his other qualities, but I am doubtful that even he can persuade noble Lords today that the lack of any present intention to offer a referendum giving a wider choice of voting systems can be consistent with Mr Harper’s assertion that this Government deprecate the use of the referendum as a tactical device.

I hope that the Government will be slow to propose referendums in the future, even on constitutional issues. Complex issues of government are best decided by Parliament, taking full account of the views of all sections of society, of course. I am concerned, like the noble Lord, Lord Rennard, that referendums will inevitably be strongly influenced by the drafting of the question, the power of the press to influence thinking, the popularity of the Government when the referendum occurs and the ability of people to understand the issues that are being posed. The Electoral Commission’s recent report on the proposed referendum on the alternative vote revealed an alarming state of public ignorance on the subject—a matter to which the noble Lord, Lord Hart of Chilton, has already referred.

My point is not to encourage the Government to hold more referendums: it is that the committee was undoubtedly correct to conclude that a referendum is, always has been, and will remain, a political device that a Government will inevitably seek to manipulate to advance their own objectives. When the Government propose a referendum, we should lock the doors and make sure that the political burglar alarms are working.

Supreme Court: Retirement Age

Lord Pannick Excerpts

Monday 12th July 2010 Lords Chamber

Asked By

[Lord Pannick]

To ask Her Majesty’s Government whether they propose to increase the retirement age of Supreme Court judges to 75.

[The Minister of State, Ministry of Justice (Lord McNally)]

My Lords, the Government are considering the issue in consultation with the judiciary and others.

[Lord Pannick]

I am grateful to the Minister. Will he congratulate the Lord Chancellor on his 70th birthday earlier this month, and suggest to him that to require Justices of the Supreme Court to retire at that age, if they were appointed to the Bench after March 1995, is a terrible waste of judicial experience, wisdom and knowledge? It is especially unfortunate when some Supreme Court Justices are only appointed to that court in their mid to late 60s.

[Lord McNally]

My Lords, I first assure the noble Lord, Lord Pannick, that the Lord Chancellor and I share the view that reaching 70 is not the end of a contribution to public life. In fact, in this House most think that it is only beginning. The age limit of 70 was brought in by the reforms of my noble and learned friend Lord Mackay. The Lord Chancellor is examining it, and he is also consulting carefully with the judiciary.

Defamation Bill [HL]

Lord Pannick Excerpts

Friday 9th July 2010 Lords Chamber

[Lord Pannick]

My Lords, I, too, warmly welcome the Bill brought forward by the noble Lord, Lord Lester of Herne Hill, and I congratulate him on doing so. I should confess to your Lordships that I was the unfortunate advocate for the United Kingdom Government in the European Court of Human Rights in the case of Lord Aldington, which was mentioned by the noble and learned Lord, Lord Hoffmann, in which the court held that damages of the magnitude of £1.5 million, which were awarded by the jury, were a breach of the right to free speech. I hope that does not, as the libel lawyers would say, lower me in the estimation of right-thinking people in your Lordships' House. I should also mention that the successful advocate in those proceedings, who acted for Count Tolstoy, was the noble Lord, Lord Lester of Herne Hill.

Libel lawyers often begin their submissions to the jury by quoting from Ecclesiastes:

“A good name smells sweeter than the finest ointment”.

The problem is that the current state of the law has odorous consequences. It undoubtedly allows the rich and the powerful to prevent or at least dilute critical comments about their activities by bringing, or even threatening to bring, libel proceedings, which impose a crippling cost on the author or the newspaper concerned, even if the libel proceedings fail.

In 1964, Lord Devlin said in a speech in the Appellate Committee that,

“a man who wants to talk at large about smoke may have to pick his words very carefully if he wants to exclude the suggestion that there is also a fire, but it can be done”.

The problem is that it can be done only by walking a legal tightrope, which imposes a very substantial cost bill.

I much enjoyed, as I know the whole House much enjoyed, the speech of the noble and learned Lord, Lord Hoffmann. I can best summarise my reaction to what he said by recalling one of his speeches in the Appellate Committee in 2006. He said that it was,

“with a reluctance verging on disbelief that one is driven to conclude that the deliberate opinions of Lord Wilberforce and Lord Diplock were quite wrong”.

The noble and learned Lord, Lord Hoffmann, spoke of the different approach in the United States, even though he accepted that this Bill does not echo at all the provisions of United States law. He then described—critically, I think—what he said was a campaign by the media to reform the law, as if there were something reprehensible about those who have the vital function of communicating ideas and information drawing our attention from their vast experience to the damage done by the current state of the law.

The noble and learned Lord objected to Clause 1, which deals with the defence of responsible publication on matters of public interest. He objected on the basis that the courts have already recognised such a defence. They have, but Clause 1 serves a most valuable function because it clarifies the criteria, which are—with all due respect—confusingly stated in a number of judgments, many of which are conflicting.

He was concerned about hasty reform; namely, that we should not act too speedily. Let us look at Clause 10, which will remove the rule derived from the Duke of Brunswick’s case in 1849. There is no question here of reform being rushed. That case established that each fresh publication of the same material gives rise to a new cause of action with its own limitation period. The rule is a substantial impediment to free speech because newspapers and others who make archive information available on websites are at real risk of being sued when material is downloaded from the internet, however many years have passed since the original publication.

The noble and learned Lord, Lord Hoffmann, also said that we must remember the interests of those who are the victims of libel. Of course we should, but we do not assist the interests of libel claimants by maintaining legal provisions which are slow, expensive and obscure. Why should we allow libel claimants to bring proceedings unless they have suffered, or they are likely to suffer, substantial harm to their reputation? Clause 12 will remedy that defect. Indeed, I suggest that Clause 12 does not go far enough. I do not understand why Clause 12(2) allows for exceptional cases where it is in the interests of justice for the libel claim to proceed even though there is no substantial harm or likelihood of it. Perhaps the noble Lord, Lord Lester, in his reply, can explain what these cases are.

The noble Baroness, Lady McIntosh of Hudnall, cited from “Othello”. Of course, there is another famous quotation from “Othello”, which is Iago’s plea:

“he that filches from me my good name

Robs me of that which not enriches him,

And makes me poor indeed”.

The problem is that the Iagos of the 21st century bring libel proceedings and they deter newspapers, publishers and others from commenting on their behaviour. The current state of the law of libel damages the good name of the English legal system.

I much enjoyed the moving maiden speech of the noble Baroness, Lady Hayter of Kentish Town, and I very much look forward to hearing the maiden speech of the noble Lord, Lord Willis of Knaresborough.

Political and Constitutional Reform

Lord Pannick Excerpts

Monday 5th July 2010 Lords Chamber

[Lord Pannick]

My Lords—

[Lord Strathclyde]

My Lords, the noble Lord, Lord Pearson, has been trying to get in from the very start. He is the leader of a party in this House. Perhaps we can then hear from the noble Lord, Lord Pannick.

--- Later in debate ---

[Lord McNally]

I am sorry, I meant AV. It is for Parliament to scrutinise and Parliament will decide.

[Lord Pannick]

Can the Deputy Leader clarify what is the purpose of legislating to allow for a dissolution of Parliament on a two-thirds vote of the Members of the other place? Her Majesty’s Opposition will of course seek to persuade that House, on a 50 per cent vote, to pass a vote of no confidence. This matter was raised by the noble Baroness, Lady Royall, but the noble Lord gave no answer.

[Lord McNally]

The point is that once we have got to a system of fixed-term Parliaments, to prevent the Government of the day engineering an early dissolution for their own short-term political advantage, they would therefore need a two-thirds majority—something that no Government in the UK have had since the war. As I said in my opening response to the noble Baroness, it is belt and braces against what we are trying to get away from. We are trying to move to the stability of a fixed-term Parliament and away from Governments of the day using early elections for short-term advantage.

Immigration: Refugee and Migrant Justice

Lord Pannick Excerpts

Monday 28th June 2010 Lords Chamber

[Lord McNally]

There are no estimates on that. There will be an extra cost, but Ministers had to face a balance of judgment: did they take into account that RMJ was going into administration and that therefore there would be knock-on costs, or did they give it more taxpayers’ money with no guarantee that it would not again find itself in difficulty in a short time? It was a hard call but, as the noble Lord knows full well, sometimes Ministers have to make hard calls.

[Lord Pannick]

Will the Minister confirm that the problem faced by RMJ is the consequence of payments being made only after decisions are taken by the Home Office, or by the tribunal, in an individual immigration case, and that that can take two years or more? Will the Government therefore consider introducing a system of interim payments so that competent and efficient organisations such as RMJ are not threatened with closure?

[Lord McNally]

My Lords, if the description “competent and efficient” was correct for RMJ, one asks how it managed to get itself into administration. It represents 7 per cent of cases, so organisations representing 93 per cent are coping. Again, it was a difficult decision to make and I know that there have been complaints about the tough system of paying. However, we are dealing with taxpayers’ money and there is justification for ensuring that the organisations provide value for it. It may be worth noting that, in the round of bids, double the number of law firms are bidding for this business. That suggests that RMJ is not alone and that companies believe that they can deliver the service under the present scheme.

Justice: Legal Fees

Lord Pannick Excerpts

Monday 21st June 2010 Lords Chamber

[Lord McNally]

I can give assurances that we will treat the matter with all due seriousness. Whether we will follow the same path as the previous Administration is more questionable. As the noble Lord will know, Lord Justice Jackson has made a different recommendation about how to deal with this problem. We will weigh up what he has argued in his report and consider the debate in this House and other views on what the previous Administration was proposing to do.

[Lord Pannick]

My Lords, can the Minister confirm that a very large proportion of success fees are paid in defamation cases brought by claimants who are sufficiently wealthy themselves to pay a proper professional fee for their action? Therefore, success fees make no contribution whatsoever to proper access to justice. In asking that question, I declare an interest as I act for Mirror Group Newspapers, which is bringing proceedings in the European Court of Human Rights relating to success fees in the case of Naomi Campbell and her privacy complaint.

[Lord McNally]

Having spent some years treading the line between public relations clients and what I could say in the House, I am always very envious of how my learned friends manage to tread that line so well. This defamation area produces great scandals, and I think that the balance of Lord Justice Jackson’s report will point us in the direction of urgent action. I pay tribute to the noble Lord, Lord Lester, who has made available to my department his not inconsiderable research and preparation for a Defamation Bill, which will, I hope, enable us to move forward very quickly on this. I do not think I will say any more about the Mirror Group case.