Parliamentary Voting System and Constituencies Bill
Lord Pannick Excerpts(14 years, 5 months ago)
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Lord Pannick
“Exceptional circumstances5A If, but only if, a Boundary Commission is satisfied that—
(a) it is necessary to do so in order to achieve a viable constituency, and(b) such necessity arises from special geographical considerations or local ties, as defined in rule 5(1)(a) or (d) above, of an exceptionally compelling nature,the Boundary Commission may decide that the electorate of the constituency shall be—
(c) no less than 92.5% of the United Kingdom electoral quota; and(d) no more than 107.5% of that quota.”
Lord Pannick
Amendment 22D stands in my name and those of the noble Lords, Lord Williamson of Horton and Lord Armstrong of Ilminster, and the noble Baroness, Lady O’Neill of Bengarve.
The purpose of the amendment is to recognise and address the competing strength of the arguments advanced from each of the Front Benches on a matter of considerable significance: namely, the extent to which the Boundary Commission should have flexibility to depart from the electoral quota for each constituency laid down in the Bill. The Government contend—this is a very forceful argument—that equality in this area is of enormous significance. They have already recognised a 5 per cent margin either way. One must be very careful about giving any further flexibility lest one undermines the important goal of equality. Those arguments are very forceful, but equally forceful are the arguments advanced by noble Lords on the opposition Front Bench. They point out that equality is not the only goal: geographical considerations, local ties and community cohesion are also important in this sensitive area and there may be constituencies where the Boundary Commission would wish to depart from the electoral norm further than the 5 per cent margin.
The amendment recognises the force of each of those arguments and it suggests that the solution is to confer on the Boundary Commission in its discretion a very narrow—I emphasise very narrow—additional discretion to allow for a departure from the electoral norm of up to another 2.5 per cent either way. That would apply only if the Boundary Commission believes, in its judgment, that two criteria are satisfied. The first criterion is that a further departure must be necessary—not reasonable nor desirable, but necessary. The second criterion is that it must be necessary in order to address special geographical considerations or local ties—already the criteria in Rule 5—of an exceptionally compelling nature. On a matter as important as this, it is appropriate to include in the Bill that limited additional flexibility outside the 5 per cent norm, but I accept that it is absolutely vital that any such flexibility is defined in a way that ensures that the exception does not swallow the rule.
Amendment 22D has been drafted with the assistance and encouragement of noble Lords from all parts of the House. It has been drafted in a manner that I am confident achieves this narrow objective. I thank the noble Lord the Leader of the House, the noble and learned Lord, Lord Wallace of Tankerness, Mr Mark Harper, the Minister in the other place and the Bill team for the time and trouble that they have taken in discussing with me very patiently and courteously the Government’s concerns about this issue. I really have tried my best to accommodate those understandable concerns in this amendment in a constructive manner. There remain, I understand, four main concerns that Ministers still have. I will briefly identify and seek to address them.
The first concern is that the criteria, particularly the term “exceptional” are subjective. The Boundary Commission will, Ministers fear, be under pressure from people in many constituencies to recognise that their cases satisfy these criteria. The answer is that the criteria are very narrowly defined and the Boundary Commission will, I am sure, respect the clear limits in both the language and purpose of the amendment. I refer noble Lords to a 1998 judgment by the late and much lamented Lord Bingham of Cornhill, where he explained in another statutory context what “exceptional” means. He was, incidentally, rejecting arguments from counsel, Mr Clegg QC—no relation. Lord Bingham said that exceptional means something,
“which is out of the ordinary course, or unusual, or special, or uncommon”.
There are many contexts in which Parliament has used the term “exceptional”, and public bodies are used to exercising narrow discretions accordingly.
Lord King of Bridgwater
I am sure that that is not true because I know that I can talk to the Cross-Benchers, many of whom—
Lord King of Bridgwater
Perhaps I may just finish my sentence. I have had the pleasure of working with many Cross-Benchers over the years who will bring their independence of mind to this House.
Lord Pannick
I reassure the noble Lord that there is no Cross-Bench position on this. Each Cross-Bencher who has considered this issue has a position. Many of them agree with the views that I explained to the House, but some of them no doubt will not agree. There is no official Cross-Bench position.
Lord Pannick
I thank all noble Lords who have spoken in this important debate. I particularly thank the noble and learned Lord, Lord Wallace of Tankerness, for the reasoned way in which he addressed the points that I have made at all stages. I hope that this House is performing its vital function in relation to constitutional matters.
The noble Lord, Lord King, said that his concern was whether the amendment would promote equality, but equality is not the only value recognised by the Bill. The Bill accepts that there should be a 5 per cent variation either way. It accepts that there should be exceptions for Orkney and Shetland, the Western Isles and, as a result of the amendment moved by the noble Lord, Lord Fowler, the Isle of Wight. Equality is not the only value; there are other considerations that noble Lords will wish to take into account. The noble Lord, Lord Maples, said that he would not accept any of those exceptions. That is a logical position that I respect, but it is not the position taken by the Bill. It recognises that there are and there have to be exceptions to equality.
The second concern of the noble Lord, Lord King, which was shared by some noble Lords, was about delay. The noble Lord, Lord Maples, asked me specifically whether I would advise a client that a judicial review is hopeless. My short answer—indeed, it is also the long answer—is yes; in the context of a statutory provision that confers discretion, by reference to the criteria of necessity and exceptionally compelling circumstances, I would advise that it is hopeless.
The noble and learned Lord, Lord Scott of Foscote, expressed—if I may say so—a more nuanced view. I hope that that might demonstrate to the noble Lord, Lord King, if nothing else does, that the Cross-Benchers do not think and act as a group. If the noble Lord still has any suspicions in that respect, he may wish to look at yesterday’s Division lists, which will confirm that we do not think and act as a group on these vital issues.
My point is not that judicial review can never be used to delay action in any context. My point—which, with respect, was not addressed by noble Lords who are understandably concerned about this—is that in this context, where the criteria are so narrow, subjective and political, judicial review is simply not realistic; it is not an appeal to the merits. The key point was made by the noble Lord, Lord Butler of Brockwell, who rightly pointed out that if noble Lords are concerned about judicial reviews holding up the process, the real concern—which I do not share—should be about judicial reviews of the exercise by the Boundary Commission of the subjective functions that it has been given already under Clause 11. Those functions are not circumscribed in the way that the amendment circumscribes this discretion.
The noble Lord, Lord Rennard, expressed great concern about the term “viable”. The Oxford English Dictionary defines it as “workable” and “practicable”. It is not simply that “viable” is in the amendment; it is linked to a concept of necessity and a judgment by the Boundary Commission of what is necessary. That is the answer to the intervention of the noble Lord, Lord Phillips of Sudbury.
The noble and learned Lord, Lord Wallace of Tankerness, expressed concern that, under the amendment, Boundary Commissions would set different standards for different constituencies. They would not; the same criteria would apply to all constituencies. Of course, their application would differ according to the circumstances, just as the application of the existing Clause 11 criteria—the same criteria for all—will differ according to the circumstances of the constituency, and rightly so, in the judgment of the Boundary Commission.
Finally, the noble Lord, Lord King, pointed out that noble Lords should not accept an amendment simply in order to secure a compromise. He is right. I commend this amendment to the House not because it is a compromise but on its merits. It is fair, reasonable and workable. I say to all noble Lords that in the context of a Bill that makes fundamental changes to our constitutional arrangements—a context where consensus is vital if it can be achieved—it would be desirable, if possible, to give the Boundary Commission a carefully controlled discretion outside 5 per cent, which will undoubtedly give a large degree of reassurance to those who are concerned about the fundamental changes that we are making to an important aspect of our constitution. That would be a wise step for Parliament to take. My central point is that the amendment is right on its merits and I wish to test the opinion of the House.
Parliamentary Voting System and Constituencies Bill
Lord Pannick Excerpts(14 years, 7 months ago)
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Lord McNally
My Lords, that is not a question for today. We should wait to hear the Government’s decision and then go through the normal parliamentary processes and consultations. That will take place all in good time. It would not be appropriate for me to make commitments at this Dispatch Box about either the timing of, or consultation around, another Bill altogether. I say to the noble Lord, Lord Foulkes, that his best support has come from the noble and learned Lord, Lord Lloyd, who thinks that this is half a loaf, and from the noble Lord, Lord Bach, who thinks that it is going too far. I suggest that this is not the basis for pressing an amendment. The Government accept that they are legally obliged to lift the blanket ban on prisoner voting in UK parliamentary elections. However, accepting this amendment and allowing a category of prisoners to vote in the referendum would pre-empt Parliament and prevent it following the proper course of debating prisoner voting in both Houses when the Government have come forward when their proposal. I therefore ask the noble Lord to withdraw the amendment.
Lord Pannick
Will the Minister at least give the Committee an assurance that when the Government come forward with their proposals for reform in this area, they will bring forward an amendment to the Bill that is consistent with the general approach that they propose, so that we do not find, when this referendum takes place—next May or whenever—that prisoners whom the Government accept should have the right to vote are denied it?
Lord McNally
No, my Lords, I cannot make that commitment. The legislation is specific to this referendum. When the Government have a Statement to make on prisoner voting, there will be time to discuss this and many other matters.
Coroners and Justice Act 2009
Lord Pannick Excerpts(14 years, 7 months ago)
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Lord McNally
Believe it or not, a national coroner for treasure is not in this brief, so I promise to write to the noble Lord. As a former member of the All-Party Archaeology Group, I hope that progress is being made, subject of course to the financial constraints that we found ourselves in when we took office.
Lord Pannick
Does the Minister accept that one of the reasons for creating the post of chief coroner was to reduce the costs, both legal and administrative, of defective decision-making? Does he therefore not accept that to fail to proceed with the appointment of a chief coroner is a false economy?
Lord McNally
I disagree. The savings are £10 million in set-up costs and £6 million a year in running costs. Although I freely accept that it is a big challenge for the Ministry of Justice, we believe that we can deliver the core measures in the Coroners and Justice Act through the ministry. We have put a great deal of effort into consulting on and then bringing forward a charter for the bereaved, which we hope will deal with many of the problems to which the noble Lord has referred.
Referendums: Constitution Committee Report
Lord Pannick Excerpts(14 years, 9 months ago)
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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(15 years ago)
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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(15 years ago)
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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(15 years ago)
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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.
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(15 years ago)
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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(15 years ago)
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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.