Northern Ireland Protocol Bill

Lord Pannick Excerpts

Committee stage
Tuesday 25th October 2022 Lords Chamber

I also want to know why we are not seeing the legal opinion which says what our position is with regard to international law. There is not a lawyer in this House who does not agree that this is an affront to international law, as I mentioned last time. On Monday of this week there was a meeting in this House about the treatment of Jimmy Lai in Hong Kong. He is a media owner being put on trial under the new national security law because of the erosion of the rule of law in Hong Kong. We want to say that that is an affront to international law because of the agreement made with China over Hong Kong’s future, but how can we say that with any kind of respect in the world when we are doing this to another international treaty because it has become inconvenient to us? That really is wrong, and I would like an impact assessment on the human rights implications of this piece of legislation.

[Lord Pannick (CB)]

My Lords, I pay tribute to the noble Lord, Lord Bew, because he has at least made the effort to present an argument as to why the Bill is not a breach of international law—something that the noble and learned Lord, Lord Stewart, the Advocate-General for Scotland, for whom I have great admiration in other circumstances, expressly declined to do at the end of Second Reading. As I understand it, the argument from the noble Lord, Lord Bew, is that international law includes the Good Friday agreement, which recognises the need to pay close attention to the views, interests and aspirations of all sections of the community—and here, most relevantly, the views of the unionist community, and in particular the DUP.

That argument deserves an answer so I will attempt briefly to explain why, in my respectful view, it is hopeless as a matter of international law. The reason why the argument is hopeless is that international law states that the doctrine of necessity simply cannot apply where the Government have caused or contributed to the problem that they now perceive and are seeking to address. The noble Lord, Lord Bew, cannot get away from the basic facts that the Government negotiated and signed the protocol. In international law, it is simply elementary that a state cannot sign a specific agreement and then seek to resile from it because it takes the view that it is neither convenient nor in the interests of particular sections of the community. Indeed, the Government signed the protocol—and said they did so—because they took the view that it was the best way of protecting the views of all sections of the community, including the DUP. It therefore follows that, if the Government take the view that this is unacceptable, inconvenient and does not meet the DUP’s aspirations, international law demands that the Government negotiate with the EU and attempt to arrive at another solution. It is as simple as that.

[Lord Bew (CB)]

It is a little more than just “a need to”, which is definitely there. I can see perfectly clearly that the noble Lord is not familiar with Article 1(5), to which I referred, which is an international agreement held in the United States. The crucial thing is that this is also about the commitment to support the Good Friday agreement in all its parts. I am saying something slightly more complicated. We have both agreed to do this. The EU does not understand, for example, that “in all its parts” includes east-west, the totality of relations, a benign relationship and so on. It is impossible to fit the description of the east-west trading relations we now have from the protocol. This is very much a matter of decisions made by the EU, such as on how much intervention was required—or not. This is very much about its regulatory interventions going beyond what is necessary in anything that is actually in the protocol because the protocol itself says that the integrity of the UK single market will be upheld. Those are the words of the protocol—the important bit is in paragraph 25—but that is not what has happened.

My point is this: it is not just a question of the EU and the responsibility of one community, which is definitely there in paragraph 1 of the international agreement. This is about strand 3. At this point in the negotiation, we are simply saying, “We have both agreed to this. Your regulations most certainly break strand 3 at the moment”. I cannot understand why that is such a terribly complicated point in international law. We have all signed up to this; it is an argument about the interpretation of it.

[Lord Pannick (CB)]

I bow to the noble Lord, who has immeasurably more knowledge and experience of Northern Ireland than I could possibly have, but of course I have read the Northern Ireland agreement and understand that there are two documents in international law. The simple point is that, in the protocol, we agreed the means by which we take the view that the Good Friday agreement should be implemented in the context of the United Kingdom leaving the EU. That is what we agreed; we cannot now say that we are going to resile from it unilaterally. It is as simple as that.

[Lord Dodds of Duncairn (DUP)]

My Lords, I had not intended to take part in this debate because I had not realised that it would range so far and wide and across so many general issues. We had a lengthy debate at Second Reading in which a number of these topics were discussed; nevertheless, I think it is worth addressing some of the points that have been made and putting some of the issues on record as far as we are concerned.

I begin by joining noble Lords and noble Baronesses in their tributes to the late Baroness May Blood, who passed away recently. She lived and was brought up in the same part of Northern Ireland that I had the honour of representing in another place for almost 20 years, so I knew her very well indeed. I pay tribute to her great resilience, hard work, dedication and tenacity in her pursuit of the issues in which she believed strongly, as well as her dedication to young people in the Shankill and integrated education, as has been mentioned.

It is not incompatible to support this Bill and seek a negotiated outcome. On the negotiated outcome, although there is not a great history of flourishing talks with the EU and the United Kingdom on the protocol issues thus far, we hope that any negotiations lead to an outcome that is compatible with the aims and objectives contained in this Bill. This is not a matter of just tinkering around the edges and finding practical solutions, as has been said; some of the issues are fundamentally contained in the protocol. You cannot address the democratic deficit issue satisfactorily unless you address some of the content of the protocol.

No matter how much consultation, prior notice, discussion or involvement you agree to give Northern Ireland politicians in relation to EU laws covering 300 areas such as the economy—as well as further issues such as state aid, VAT and so on—the fundamental fact is that no elected representative of Northern Ireland either here at Westminster or in the Northern Ireland Assembly has any vote or decision-making capacity on vast swathes of laws that apply in Northern Ireland. How will that be addressed? This Bill goes some way to addressing that, but nothing I have heard being suggested by the proponents of delay, who are against the Bill, has offered any solution to that point. The noble Lord, Lord Hain, acknowledged the problem.

Our Sub-Committee on the Protocol, of which I have the honour of being a member, has looked at this issue in considerable detail; I recommend that noble Lords and noble Baronesses read the report that we commissioned on the scrutiny of legislation now applicable to Northern Ireland. They will see the extent to which Northern Ireland has been removed from the normal processes of democratic lawmaking, which people in this House have spoken about with great eloquence but which does not apply anymore to United Kingdom citizens in the 21st century. That is entirely unacceptable and is contrary to all the traditions of democracy that this mother of Parliaments has sought to uphold both here and abroad.

It has been asked what the problem is with delay. The noble Lord, Lord Bew, has dealt with one issue—

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[Lord Ahmad of Wimbledon (Con)]

What I said, and I have said it before, and without prejudice to our position on other mechanisms available under the withdrawal agreement and protocol, is that the Government reserve their position on Article 16. Article 16 remains an option—the Government have not taken it off the table—and it remains an option for the EU has well.

[Lord Pannick (CB)]

Can the Minister explain how the doctrine of necessity can be satisfied when the Government themselves reserve their position to use a power that is contained in the protocol?

[Lord Ahmad of Wimbledon (Con)]

I am sure we will return to the principle of the doctrine of necessity in later amendments. The use of Article 16 was debated during Second Reading, when a number of noble Lords, including my noble friend Lord Howard, suggested its use—indeed, that has been cause for debate. The noble Lord will be aware that that remains very much at the Government’s disposal, as it does at the disposal of the EU, because that was an agreement that was signed. On the principle of necessity, as I said, I will defer to my noble and learned friend Lord Stewart, who I am sure will discuss this with the noble Lord in other amendments that we are scheduled to discuss.

The noble Baroness, Lady Ludford, talked about Article 13(8) of the protocol, which deals with how subsequent agreement interact with the NIP. The EU, from our perspective when this has been raised, continues to reject any changes to the NIP itself. However, in saying that—and I am going by the discussions we are having with the European Union at this time—my experience is that it is not just the substance of what is being discussed with the EU at the moment but the tone of the engagement as well. While there are differing opinions—I accept fully that some are saying that a delay, which has been proposed, would strengthen the Government’s position—our view remains that the EU is very clear on our position on what we are seeking to do with the Bill, but that has not prejudiced the tone or substance of our engagement with the EU.

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[Lord Campbell of Pittenweem (LD)]

My Lords, I thought my days of trying to beat the gun had left me behind a long time ago. I apologise.

I wish to speak in support of Amendment 3 and am glad to see that the noble Lord, Lord Ahmad, is back in his place. I have a recollection, and no doubt he will correct me if I am wrong, that on one previous occasion when this issue was raised, he expressed some sympathy for the idea that the legal advice should be made available. We have heard already in these proceedings that there is not a lawyer in the House who does not think that the Government are acting illegally and that, I suppose, is a pretty unusual state of affairs.

We have also seen that the Delegated Powers and Regulatory Reform Committee observed at paragraph 4 of its report:

“The Bill represents as stark a transfer of power from Parliament to the Executive as we have seen throughout the Brexit process. The Bill is unprecedented in its cavalier treatment of Parliament, the EU and the Government’s international obligations.”


Given that the chorus of legal responses in the House is against the Government, perhaps the most notable being that of the noble Lord, Lord Howard of Lympne, and given the extreme criticism of the Government contained in paragraph 4, I respectfully suggest that the convention that legal advice is not made public should be set aside on this occasion. It is a convention; it is not a rule of law. If I may put it so, this is a case of such novelty and importance that it justifies the setting aside of the convention.

I also understood my noble friend Lady Ludford to be raising some questions about the issue of necessity. The Advocate-General will recall that in the course of his long response at Second Reading, he referred to the case of Slovakia against Hungary. I took the opportunity to read that case, and what we discover is that it is not in point at all. It was a case where both states were in breach of legal obligations and the international court called on them both to carry out their relevant treaty obligations. That is nothing to do with the issues which we have before us. But the noble and learned Lord was not satisfied with Slovakia; he went to Canada in 1995. He prayed in aid decisions taken then by the Canadian Government in relation to the Grand Banks and their overfishing, but there was no question of a treaty on that occasion.

If these two cases are offered as support for the notion that this case is one where necessity is justified, I would respectfully suggest that they do not support that thesis. The Government will have to do something rather more if they are to establish any question that necessity arises in this matter.

[Lord Pannick (CB)]

My Lords, I very much agree with what the noble Lord, Lord Campbell, said about this being a context where it would be enormously helpful to this House, and to Parliament generally, for the Government to publish legal advice so that we can understand why they assert, contrary to the views of most—if not all—lawyers, that what they propose to do is not a breach of international law. I anticipate, however, that the Advocate-General for Scotland will tell us that there is a convention that the Government are not prepared to publish legal advice. If that is his position, it would be enormously helpful to the House if he could at least address the substance of the criticisms that have been made of the Government’s position in international law. The noble and learned Lord told us at Second Reading that that was not the time or the place for him to address these arguments. I very much hope that today is the time and that he will tell the House, if he is not prepared to publish the legal advice, at least the substance of the Government’s argument.

First, why do they say that the test of necessity is satisfied, even though the protocol contains a mechanism for addressing disputes and even though, as the noble Lord, Lord Ahmad, told us a few moments ago, the Government are reserving the right to use Article 16? How can it be necessary to set aside the protocol when the Government themselves reserve the right to use a provision in the protocol which is designed to address the very problems that they are concerned about?

Secondly—I dealt with these points at Second Reading, but we had no answer—how can there be an “imminent peril”, when this dispute has been going on for three years, since the protocol was agreed? Why is it imminent, which is the requirement in international law?

Thirdly, since they have not told us this, what is the Government’s case as to how the doctrine of necessity can be satisfied when the International Law Commission, the academic analysis and the case law all say, “You cannot rely on the doctrine of necessity when you, the state relying on it, have contributed to the problems which you are complaining about”? How can it not be the case that the Government have at least contributed to the perceived problem when they signed the protocol after negotiations? If we are not to have the legal advice, can we please have at least some indication or hint as to what the Government’s case is?

While we are dealing with that, could we also please be told whether the Government’s legal advice associates itself with the argument of the noble Lord, Lord Bew? They have never said this, but is their argument that the Good Friday agreement establishes the test of necessity? I would like to know, please, the answers to those basic questions so that when we proceed with Committee we are at least informed as to what the Government’s position actually is.

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[Lord Dodds of Duncairn (DUP)]

I am grateful to the noble Baroness, and I understand what she is saying, but the issues that were being discussed at the time by Her Majesty’s Government, as it then was, and which the Labour Party was responding to, are the same issues that are before us today, which are affecting the political process in Northern Ireland and leading to problems with the supply of goods from Great Britain. They are exactly the same but when the solution, “Let’s trigger Article 16; let’s go into negotiations”, was suggested, the Labour Party derided that as being toxic. The Labour Party gave support and succour to those who have allowed this position of instability and economic and constitutional harm to continue. A lot of lies have been told around the place, but it is no good, if I may say so, the noble Baroness putting all the blame on to the Government when everybody in Parliament and all political parties have to accept that the goalposts have been shifted, often by consensus, in a way that has done damage to the Belfast agreement, as amended by St Andrews, in a way that has undermined the trust of the people in Northern Ireland in the institutions.

[Lord Pannick (CB)]

I entirely understand the noble Lord’s political grievance, but the fact is that Article 16 is part of the protocol and the political grievance cannot itself provide the basis for necessity in international law. This group of amendments is seeking to understand what the legal advice of the Government is.

[Lord Purvis of Tweed (LD)]

I always find it very interesting to follow the noble Lord. As I said before, I have been trying to understand his dilemma. For all the accusations against these Benches, suggesting that we may have been party to shifting goalposts to the Government is a stretch too far in any sport, whether it is rugby or football. We have been fairly consistent with our warnings, and I refer the noble Lord to Hansard when we debated the protocol and I raised these issues in 2019. We knew there were going to be the difficulties, because what the noble Lord wanted, we knew the Government were not going to satisfy. We have had three years of government gymnastics—I am mixing my sporting metaphors all over the place—trying to present a political argument which we knew was fundamentally flawed.

The only way that this will be sustainably resolved, if one part of the UK, Northern Ireland, is to remain part of the single market, is for there to be agreement. Unilateral actions against treaty obligations is not a sustainable solution to any of these problems. I understand when the noble Lord talks about a lack of trust. It is a stretch for him to make an impassioned contribution such as that and then say, “But I am going to argue passionately in favour of a Bill that gives unprecedented Henry VIII powers” to the exact same people he has said he had lost entire trust in.

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[Lord Bew (CB)]

My Lords, very briefly, I have been trying to say that the legal advice is a little more complicated and nuanced. I am not claiming, for example, that any prominent international lawyers such as Professor Boyle support this Bill. In fact, I do not think he does; he is one of the many who believe in Article 16.

I am quite astounded. Only a few weeks ago, every civilised person knew that Article 16 was the most brutish thing they had ever heard of. All civilised Peers across all parties and all civilised people knew it was the most brutish thing they had ever heard of, just as they are sure of this tonight. However, at this point we have a serious negotiation with the EU. Why do they think that, to improve the atmosphere of these talks, it would be a smart idea for the British Government to come in on Monday morning and say, “Well, you know, civilised opinion has changed. A few months ago, we thought it was brutish; we now think this Bill is so brutish that we want you now to declare Article 16”. This is not serious. There is a serious negotiation going on. You cannot seriously ask the Government to do this. I sympathise and fully accept that the legal arguments are more complex than has been acknowledged in this Chamber this afternoon—they are difficult and I have no firm, final view—but it would be absurd for the Government to say at this point, “Oh, we were having this negotiation but, by the way, here is Article 16”. I am sorry, it just would not work.

[Lord Pannick (CB)]

For my part, and I am sure it is true of others who have spoken in this debate, I am not asking the Government to exercise Article 16 tomorrow. The point is that the availability of Article 16 at a later stage is the reason why the test of necessity cannot be satisfied.

[The Advocate-General for Scotland (Lord Stewart of Dirleton) (Con)]

My Lords, I turn to Amendments 3 and 67 in the names of the noble Baroness, Lady Ludford, and the noble Lord, Lord Purvis of Tweed. The Government acknowledge that the noble Lord and the noble Baroness are right to raise the important issue of the relationship of this Bill to the United Kingdom’s international legal obligations.

On the point raised by the noble Lord, Lord Kerr of Kinlochard, I consider that the amendments proposed are not necessary. The Government have published a statement setting out their legal position. I will expand on that position during my submission, in particular to answer the points raised by the noble Lords, Lord Pannick and Lord Kerr of Kinlochard, and others. None the less, a statement has been published, to which the noble Lord referred, setting out the Government’s legal position that the Bill is consistent with the United Kingdom’s international obligations.

Noble Lords chided me gently for perhaps going on a bit long at Second Reading—

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[Lord Stewart of Dirleton (Con)]

My Lords, the Government set out their position at the outset to assuage, hopefully, the concerns of Peers and Parliament generally about the steps which they intended to take. I do not intend to go beyond that on the Government’s legal advice.

I was going on to address the point raised by the noble Lord, Lord Pannick, and others—the noble Lord, Lord Purvis of Tweed, and the noble Baroness, Lady Ludford—about the matter of necessity. The noble Lord, Lord Pannick, paid me a restricted compliment earlier. May I respond in kind by saying that I am grateful to him for the wise, kindly, and friendly manner in which he has always engaged with me since I started in this House? I look forward to further engagements with him and the noble Lord, Lord Kerr of Kinlochard, and others on these points.

The noble Lord I think was the first to pose the question, how would it be possible for the Government to depend on the doctrine of necessity when the Government have put their signature, have become a party, to the protocol, having negotiated it? Do those facts, of themselves, prevent the Government from relying on this? Because, as the noble Lord said, the doctrine of necessity cannot be relied on by a party which by its conduct has caused the problem. The noble Lord, Lord Bew, nods his head.

[Lord Pannick (CB)]

Or contributed.

[Lord Stewart of Dirleton (Con)]

Or contributed. Where I and the Government differ from the noble Lord is in this regard: we signed the protocol in good faith, we negotiated in good faith, but we are entitled also to look beyond the terms to the manner in which the protocol has been implemented and interpreted by the other side. In relation to that point, it is not a—

[Lord Pannick (CB)]

I am very grateful and I apologise for speaking so often, but this is Committee. If the Government’s belief is that the other side has not faithfully performed its obligations on the protocol, the protocol itself provides a mechanism by which that dispute can be resolved. The means provided is through the Court of Justice. I entirely understand why politically the Government do not like that remedy, but that is what we agreed.

[Lord Stewart of Dirleton (Con)]

To pick up the noble Lord’s point about the CJEU, the Belfast/Good Friday agreement is based, as we have heard, on the consent of both communities. It is part of a package, along with VAT and state aid rules, that causes unionists to feel less connected and less part of the United Kingdom. As your Lordships have heard in the course of the debate today, all unionist parties cited the CJEU as a key driver of a major democratic deficit. This is not a hypothetical issue; there have been seven separate infraction proceedings brought against the United Kingdom by the EU, covering issues such as value-added tax, excise, pet passports and parcels. We consider it inappropriate for the CJEU to be the final arbiter.

Northern Ireland Protocol Bill

Lord Pannick Excerpts

2nd reading
Tuesday 11th October 2022 Lords Chamber

[Lord Pannick (CB)]

My Lords, I want to focus on why this Bill would, if implemented, be a manifest breach of international law. Let me identify first what is not in dispute. The Government are not suggesting that it would be proper to bring forward a Bill which, if implemented, would breach international law—and quite rightly so. The Government also do not dispute that the Bill would resile from important aspects of the protocol and that this would be a breach of international law, unless they can rely on the doctrine of necessity. There is also no dispute about the criteria for invoking the doctrine of necessity. Your Lordships have heard that the Government must show that their action

“is the only way for the State to safeguard an essential interest against a grave and imminent peril”,

and the Government accept that necessity cannot apply if

“the State has contributed to the situation of necessity.”

The Government cannot dispute these criteria, because they are set out in Article 25 of the International Law Commission’s Draft Articles on state responsibility 2001, a codification of the basic rules of international law.

It seems to me that there are three reasons why the Bill, if implemented, would plainly breach international law. The first has already been addressed by the noble Lord, Lord Howard. The Bill is not the only way to deal with the perceived problem. The noble Lord rightly drew attention to Article 16, a mechanism in the protocol for addressing

“serious economic, societal or environmental difficulties”.

I entirely agree with what he said. But there are other problems. The second problem is that there is no “imminent peril”. The Government have been complaining about the protocol for many months—indeed, since soon after we signed it. And even if these fundamental difficulties were somehow to be overcome, there is a third fundamental difficulty: the Government have themselves caused the perceived problem, or at least substantially contributed to it. We signed the protocol in order, as then Prime Minister Boris Johnson said, to “get Brexit done”.

The Minister, the noble Lord, Lord Ahmad, in opening this debate, and the noble Lord, Lord Dodds, listed the difficulties that are caused, they say, by the protocol. Well, the Government should have thought about that before signing it. The International Law Commission’s notes to Article 25 point out, at paragraph 20, that the International Court of Justice has held that a state cannot rely on necessity when it has,

“‘helped, by act or omission’”

to bring about the situation of which it now complains. It is elementary that a state cannot sign a treaty and then seek to resile from it on the basis that the terms it has agreed damage the interests of the signing state.

The Government then say, “Yes, but the EU is not applying the protocol in good faith”—the noble Lord, Lord Forsyth, referred to bloody-mindedness, as he put it, by the EU. But there are mechanisms for resolving a dispute about the obligations of the parties to the protocol. We agreed, by Article 12, to the jurisdiction of the Court of Justice in Luxembourg to resolve disputes. The Government and the noble Lord, Lord Forsyth, may not like it, but that is what we agreed to in the protocol.

[Lord Howell of Guildford (Con)]

The noble Lord speaks with great authority and expertise—I have heard it often before and it is very good indeed—but does he think Articles 49, 50, 51 and 52 of the Vienna Convention on the Law of Treaties also have relevance and allow some scope to move away from the narrow confines of the treaty as it stands now, when the other parties may be breaking it in some way?

[Lord Pannick (CB)]

I think the noble Lord refers to obligations of good faith. The answer is that the protocol sets out a mechanism, as I said, for resolving the dispute between the parties—the UK and the EU—as to whether each is complying with its obligations. The United Kingdom cannot say that the test of necessity is satisfied when the protocol sets out a dispute-resolving mechanism.

I agree with the excellent speeches by the noble Baroness, Lady Chapman, and the noble Lord, Lord Purvis: this is a manifest breach of international law and I very much hope that the noble and learned Lord, Lord Stewart, the Advocate-General for Scotland, will address these points when he answers this debate.

Judicial Review and Courts Bill

Lord Pannick Excerpts

Consideration of Commons amendments
Wednesday 27th April 2022 Lords Chamber

[Lord Anderson of Ipswich (CB)]

My Lords, the presumption in Clause 1 was a curious and misshapen thing—so much so that I did wonder when moving against it whether it was always intended to be the hunk of meat that would be thrown off the back of a sledge to distract the ravening wolves. But these things do not dispose of themselves and I am grateful to the noble and learned Lord, Lord Stewart of Dirleton, to the Justice Minister, James Cartlidge, who is also my MP, and, before them, to the noble Lord, Lord Wolfson, for the good grace, courtesy and good sense with which they agreed to put it out of its misery.

I do not share the principled objection of the noble Lord, Lord Marks, to prospective-only quashing orders. The noble and learned Lord, Lord Brown, wrote about this in the Times and I respectfully endorse what he had to say. But I am pleased that the noble Lord agrees at least that these prospective-only orders, whose place in our law is confirmed by Clause 1, are at least mitigated by the removal of the presumption.

[Lord Pannick (CB)]

My Lords, may I pay tribute to the noble Lord, Lord Wolfson of Tredegar, on his resignation as Minister of Justice? He played a significant role behind the scenes in ensuring that the Government have made the welcome concession of agreeing to the amendment from the noble Lord, Lord Anderson, to remove the presumption. The noble Lord’s resignation has confirmed, if there were any doubt, his commitment to the rule of law. His resignation will be welcomed only by his senior clerk at One Essex Court Chambers in the Temple as he returns to the commercial Bar, as well as to the Back Benches.

On topics as diverse as the Cart jurisdiction and breastfeeding, the noble Lord’s contribution as a Minister was marked by his hard work, his eloquence, his ability to respond constructively to the concerns of other noble Lords, and his wit. He is an enormous loss to the Front Bench and I very much look forward to his Back-Bench contributions.

As I said in Committee, echoing the words of the noble Baroness, Lady Jones of Moulsecoomb, the only thing to be said in favour of Part 1 of this Bill, on judicial review, is that it could have been a great deal worse. I cannot work up any greater enthusiasm at this stage for these provisions. The Bill, in Part 1 on judicial review, is not quite as much of a damp squib as the efforts of a former Lord Chancellor, Chris Grayling, in his infamous Social Action, Responsibility and Heroism Act 2015—but it is a close call.

[Lord Brown of Eaton-under-Heywood (CB)]

My Lords, I rise diffidently to agree wholeheartedly with the approach of the noble Lord, Lord Anderson, to this legislation. I strongly support Motion A; I cannot, I am afraid, support Motion A1 from the noble Lord, Lord Marks. I suggest that it would in fact compromise and complicate what is a valuable, new, flexible, broad power that gives a judge the ability to make whatever order he or she thinks is best calculated to do justice in the individual case, and to meet the problem that we have encountered over many years of not having any power to validate retrospectively anything that has happened in the past. I do not know whether anyone noticed the piece I wrote in the Times about my noble and learned friend Lord Hope’s Ahmed case, but that was a classic case in point which shrieked out for this new power.

So there it is: orders can now be made subject to whatever limitations or conditions the judge thinks right and appropriate, and I respectfully suggest that this is so much better than the approach of the noble Lord, Lord Marks, with whom I am almost always in agreement—but surely not on this. He prefers retrospective legislation, but how unwieldy, inflexible and incapable of being adapted to the individual case that is, and how unwelcome as a whole we consider retrospective legislation—so I support Motion A.

Police, Crime, Sentencing and Courts Bill

Lord Pannick Excerpts

Lords Hansard - part one & Committee stage
Monday 22nd November 2021 Lords Chamber

[Lord Falconer of Thoroton (Lab)]

The reason I did not tell noble Lords why I strongly supported all these amendments was because I made a mistake and did not realise that they were in the same group until the noble Lord, Lord Thomas, mentioned it. I apologise to the Committee for that error.

May I just go through them? I have done Amendment 268, which concerns Section 28 of the Youth Justice and Criminal Evidence Act. The next is Amendment 286, which proposes to insert a new clause into the Youth Justice and Criminal Evidence Act 1999 and would exclude the admission in evidence, whether by the prosecution or the defence, of any sexual behaviour of the complainant with a third party, for the purpose of showing consent or lack of consent, while leaving evidence of sexual behaviour with a third party admissible if it is relevant to any other issue in the case.

In addition, it sets out a further requirement that, where such evidence is sought to be introduced in relation to an issue other than consent, that material must be more probative than prejudicial, and it sets out the considerations the judge must have regard to in considering that extra requirement. The purpose of this amendment is to give the clearest possible signal that evidence of any sexual behaviour of the complainant with a third party—that is, not the defendant—should be regarded as completely inadmissible on the issue of consent. This is important because it is intended to mark a change from the past, where all too often such evidence is admissible in circumstances where it is of very limited probative value, and the ability of that evidence to be admitted makes people—complainants—incredibly wary of coming forward and making complaints. This is the legislature giving a clear signal that it wants a change in relation to that. That is why it is there.

[Lord Pannick (CB)]

I am sorry to interrupt the noble and learned Lord, but would his amendment mean that if the complainant says, “I would never, ever consent to sexual behaviour” of a particular description, it would not be open to the defence to adduce evidence that that was precisely what the complainant had done with a third party?

[Lord Falconer of Thoroton (Lab)]

It would exclude such evidence; there is no doubt about that, and rightly so, because what the noble Lord is referring to is evidence where the defence says, “Well, you say this in relation to this case, but what about this?” and then refers to another instance of sexual connection and says, “Look what you did there.” The purpose of the provision is to do exactly what the noble Lord, Lord Pannick, says.

[Lord Pannick (CB)]

I would like to test this proposition, because it strikes me as rather surprising. If a complainant says to the court, “Not in relation to this particular person, but I would never ever contemplate” doing something, and there is evidence, otherwise admissible, that she has done so in the past, that seems to be highly relevant to the jury’s assessment.

[Lord Falconer of Thoroton (Lab)]

What I am saying in putting forward this provision is that you want to send a clear signal that a certain sort of evidence is not admissible. In order to make it easier for people to come forward, you need to have much clearer lines than we have had previously. There has been a whole variety of evidence that English law has said is not admissible, even though many people would think it was probative, because it is the safest way overall to deal with trials—it is the safest way to ensure that an appropriate balance is struck between complainant and defendant.

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[Lord Pannick (CB)]

My Lords, I intervened earlier on Amendment 286 because of my concern about an absolute rule in this area. My concern is increased by the practical experience of the noble and learned Lord, Lord Judge, in this matter. I am also concerned about Amendment 289 regarding the complainant’s right of representation in relation to an application and whether there should be evidence concerning sexual conduct, not merely for the reason the noble and learned Lord gave, with which I agree: that the prosecution are ministers of justice and are there to deal with such matters. I am also concerned that this is a recipe for delay. If it is really to be said that the victim is to be separately represented and able to make an application, presumably after notice has been given, and there is to be a right of appeal to the Court of Appeal, that is inevitably going to delay further trials that are already far too long delayed.

[Lord Falconer of Thoroton (Lab)]

On the points made by the noble and learned Lord, Lord Judge, about the criminal procedure rules, I agree with him. There is no need for the Secretary of State to intervene, and I accept that completely. Secondly, I also completely accept his point that the Secretary of State should not be making that determination; that is my drafting error.

I utterly repudiate the point made by the noble Lord, Lord Pannick, about delay and non-representation, a position which the noble and learned Lord, Lord Judge, also adopted to some extent. It is really important that the complainant have, and feel that they have, a voice in the process of what is going to happen to them at the trial. The point about delay could be dealt with by ensuring that these applications are all dealt with before the trial. If there is to be an appeal and the complainant says, “It is unfair that my past is being raked over in this way, I want to appeal”, then there may be occasional cases where there are delays, but their rights should be recognised. The fact that they have a voice is really important.

The noble and learned Lord, Lord Judge, said that the prosecution is there to look after them. My experience is that the prosecution will try as much as possible to look after them but that they should have a separate voice. They will frequently feel—not because the prosecution is in any sense not doing his or her duty, but because they feel their voice is not adequately represented—that they should have a separate voice because they have separate concerns from those of the prosecution, which has to look at the situation not just from the point of view of the complainant but in a wider context. So I accept two out of the three points made by the noble and learned Lord, Lord Judge, but none of those made by the noble Lord, Lord Pannick.

On the first point made by the noble and learned Lord, Lord Judge, regarding cases where it is vital to know what the position is—he gave the example of a trial he had heard—I am keen to draw a line so that people know where they stand, just as, in relation to the rules of evidence over many centuries, English law has said that some evidence is admissible and some is not, even though from time to time, it has been obvious that the inadmissible evidence might have been very compelling, but for reasons of bigger policy it was inadmissible.

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There is another kind of case I should mention, and which will stay in people’s minds, particularly if they remember Hillsborough, and that is the circumstance in which the process, or activity outside the process by the media, has cast a slur upon the victims—on those who have died. When confronted by that, people despair. In Liverpool, their answer was not to take the Sun newspaper anymore, but that is a pretty limited response to a slur being cast which suggests that the family which has suffered death has done so because of some non-existent failing on the part of the victim. These are very desperate situations in which people find themselves, and I am not sure that we are doing enough to help them.

[Lord Pannick (CB)]

My Lords, I too support the principle behind Amendment 269. We regularly see the disturbing prospect of bereaved families being unrepresented when public bodies have very competent representation. This undermines public confidence in justice, and it sometimes impedes the ability of the coroner or the public inquiry to get to the truth of matters of enormous public importance.

However, I am not persuaded that the mechanism contained in Amendment 269, in proposed new subsection (1), is the correct one. It provides that the representation for bereaved families must be

“at the same level or in proportion to the resources provided to the public authority or private entity”.

I would be content if competent representation were provided.

I draw to the attention of the Committee that there are cases in the Court of Appeal where it has been argued, under the Human Rights Act, that a defendant in a criminal case was entitled to representation under legal aid by Queen’s Counsel because the prosecution was represented by Queen’s Counsel. The Court of Appeal said no, and that what they are entitled to—and rightly so—is competent representation. So I think this is going too far.

The noble and Learned Lord, Lord Mackay of Clashfern, suggested one way forward: that the public body should make provision. Another way of dealing with it would be for the chairman of the inquiry, or the coroner, to have a statutory discretion to order that specific persons be provided with public funding, whether by legal aid or otherwise. There are a variety of mechanisms, but I entirely agree with the noble and learned Lord, Lord Falconer of Thoroton, that the principle now needs to be enacted.

[Lord Sandhurst (Con)]

My Lords, I shall speak shortly. I have always had a long interest in legal aid and its proper provision. My concern is that this amendment is aimed at the right target but goes too far. Look, for example, at the wording; as I understand it, it would apply every time there is an inquest involving someone who has died in a hospital. If that has been the result of possible negligence on the part of the hospital—I am talking about an NHS hospital here—then there is a potential claim against the hospital. If that potential claim has any reasonable merit, it is likely that solicitors experienced in medical and legal work will undertake the inquest because, in due course, if the claim is brought and damages are recovered and costs awarded, the cost of representation at the inquest will be recoverable in the personal injury action. That has been the case ever since the “Marchioness” disaster and the costs thereafter.

All I say is this: there should be representation in appropriate cases involving state institutions. We can all think of examples—not just Hillsborough; it could be a hospital or something else—where the state and a public authority are involved, and it is unfair to the family to have to scrabble around to get funds if they can. I would like to see careful consideration given by the Government to how this can be properly designed to find a balance. There is a strain on public resources; there are many other areas where legal aid is not provided, particularly in the family courts, and we know that funds are short. Equally, they should consider whether, in appropriate cases, it should be at the coroner’s discretion to direct the Legal Aid Agency to look at this. I argue that the Government should think very carefully about this and about what would be a fair balance, given the strain on public resources, to ensure that people who need and deserve it get resources provided to them.

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[Lord Hunt of Kings Heath (Lab)]

My Lords, I have added my name to the amendment in the name of the noble Baroness, Lady Newlove; I also support my noble friend in her powerful advocacy for her own amendment.

I want to emphasise a couple of points made by the noble Baroness. She referred to HMIC report, Police Response to Violence Against Women and Girls. I must say it makes for very sober reading about the inadequate response of many police forces to these issues. We know from the report and from the statistics referred to by the noble Lord, Lord Russell, that many cases do not proceed through the criminal justice system and, of the offences that do come to the attention of the police, many do not proceed any further. I would not argue that time limits are the sole reason, but they are a factor. I am indebted to Refuge, which does fantastic work in this area, for setting out some of the challenges that particularly women experiencing domestic abuse face and why they delay reporting incidents of common assault. They may feel understandably traumatised or physically unsafe immediately after the incident. They may still be in a relationship with the perpetrator. They may be dealing with the traumatic and logistical challenges of fleeing the scene.

Due to the six-month time limit on charging summary common assault offences, by the time many women are ready to speak to the police, they are told that the charging time limit has passed and there are no further opportunities for them to seek justice against their perpetrator or access protection through criminal restraining orders. There are so many reasons why, quite legitimately, women in particular are not able to come forward and meet the time limit. I appeal to the Minister not to respond with a typical ministerial response but to say that he will take this away and look at it. I echo the point made by the noble Lord, Lord Russell. I have noticed the practice of announcements being made in the media about what the Home Secretary is going to do but then often dying a death. We realise that sometimes they are flying a kite to see how it lands, but this is not the way to do business on such sensitive and important issues. I hope that the Minister will bring us comfort.

[Lord Pannick (CB)]

My Lords, I, too, support these amendments. I shall add two very brief points in relation to Amendment 277, which was moved by the noble Baroness, Lady Kennedy. First, the noble Baroness referred in her speech to the Appellate Committee decision in R v J. The Committee may be interested to know that in that decision Lord Bingham of Cornhill, the senior Law Lord, said at paragraph 15 that the history of the 1956 Act

“has been shown to result in much internal inconsistency and lack of coherence”.

His Lordship added that the fact that an unambiguous statutory provision—and it is unambiguous—is

“anachronistic, or discredited, or unconvincing”

does not enable a court to do anything about it. This Committee and Parliament are, of course, under no such inhibition, and for the reasons that have been given, I hope we will do something about it.

The only other point I want to make is that any defendant in any criminal case who believes that the passage of time results in unfairness to them is perfectly entitled to submit to the court that it would be an abuse of process for the trial to continue. They are perfectly entitled so to argue, but that is not a reason why we should not amend the law in the way suggested.

Private International Law (Implementation of Agreements) Bill [HL]

Lord Pannick Excerpts

Consideration of Commons amendments & Ping Pong (Hansard) & Ping Pong (Hansard): House of Lords
Thursday 19th November 2020 Lords Chamber

[The Deputy Speaker (The Earl of Kinnoull) (Non-Afl)]

The following Members in the Chamber have indicated that they wish to speak: the noble Lords, Lord Pannick and Lord Berkeley. I therefore call the noble Lord, Lord Pannick.

[Lord Pannick (CB)]

My Lords, I echo the words of the noble and learned Lord, Lord Falconer, and the noble Lord, Lord Marks, in welcoming the Advocate-General for Scotland, the noble and learned Lord, Lord Stewart, to his post. I thank him and the Minister in the Commons, Alex Chalk, and their officials for taking the time to discuss with me and many other Members of this House our concerns, the House’s concerns and the concerns of the Constitution Committee about the delegated powers in the Bill and how those concerns can be accommodated by amendments. The noble and learned Lord has taken a very welcome constructive approach to these issues and I thank him sincerely for that. He has tabled amendments that go a significant way, in my view, to meeting those concerns.

Like the noble and learned Lord, Lord Falconer, and the noble Lord, Lord Marks, I would have liked, ideally, to see greater restrictions on the use of delegated powers in this context, but the theme tune that often—not always, but often—accompanies Lords’ consideration of Commons amendments is the Rolling Stones song “You Can’t Always Get What You Want”, and since we will not get exactly what we want today, the next best thing is for the Minister to assure noble Lords of the Government’s intentions in this context. Again, he has very helpfully gone a long way to do that this afternoon. I ask him to confirm my understanding on three topics that are raised by paragraph 1A, on consultation, as introduced by government Amendment 4B.

The first of these topics is the purpose of the consultation. There is a mandatory obligation to consult. It is not a discretion; there is a duty to consult. The amendment does not expressly say what the purpose is, but does the Minister agree that it is implicit that one of the purposes of the consultation will be to assist the Secretary of State in deciding whether it is appropriate to implement a particular international agreement by regulations, or whether primary legislation is needed?

Can the Minister confirm that the Government recognise that some international agreements, even when they are in the scope of this Bill, as explained by the Minister, may require changes that are so significant that it would not be appropriate to implement the international agreement other than by primary legislation? I suppose, also, the consultation might assist on whether the international agreement would alter substantive law, albeit incidentally, which I understood the Minister to accept would not be an appropriate subject for delegated legislation. That is the first matter: the purpose of consultation.

Private International Law (Implementation of Agreements) Bill [HL]

Lord Pannick Excerpts

Report stage & Report stage (Hansard) & Report stage (Hansard): House of Lords
Wednesday 17th June 2020 Lords Chamber

In our respectful submission, we should not allow Clause 2 and it should be removed. The only argument the Minister advanced was in relation not to the overall power but to the Lugano convention. I had a conversation with him recently in which I asked whether he would be restricting the power to Lugano. If he had said that he was going to restrict the Clause 2 power to Lugano and otherwise ditch it, the House should have considered that. However, he made it absolutely clear to me that he wanted the full power. In those circumstances, we had no option but to table an amendment deleting Clause 2 altogether. It is constitutionally inappropriate and unnecessary, and it leads to legal uncertainty. It has nothing whatever to recommend it. I beg to move Amendment 2.

[Lord Pannick (CB) [V]]

My Lords, I agree with the points made so forcefully by the noble and learned Lord, Lord Falconer of Thoroton. My concern about the width of Clause 2 arises from the discussions and conclusions on this Bill in your Lordships’ Constitution Committee, of which I am a member. The noble and learned Lord has already mentioned the relevant paragraphs of our report, HL Paper 55, which we published on 4 May, and perhaps I may add very briefly to what he has said.

The Constitution Committee recognised that many of the international agreements to which Clause 2 would apply are technical in nature, and it recognised that the text of an international agreement cannot easily be changed, or be changed at all, after negotiations have concluded—points emphasised at various stages by the Minister. However, we take the view that that is no justification for allowing the law of this country to be changed by statutory instrument in this context without full parliamentary debate. That is because important policy decisions might arise in this context both on whether to implement an international agreement in domestic law and on the manner in which such an agreement is to be implemented.

International agreements often recognise a discretion for signatory states on a variety of matters, some of them of considerable policy interest and concern. Those policy decisions should be the subject of detailed debate and possible amendment of a Bill on the Floor of the House—or whatever the remote equivalent of the Floor of the House is. Those policy decisions should not be for Ministers to decide by unamendable regulations in relation to which there can be only limited debate.

I emphasise that this is not emergency legislation; it is a proposal from the Government for a permanent shift in power to the Executive. In Committee, the Minister did not make out any case for such a change in the law. If the noble and learned Lord, Lord Falconer, divides the House, he will have my support.

[Lord Hope of Craighead (CB) [V]]

My Lords, the matter has been so fully covered by the speeches already made that I have little to add, other than my full support for what has been said. However, I wish to emphasise three points.

First, the devolution arrangements in this clause have always troubled me. I refer to what I see as a lack of clarity about whether it is the Scottish Ministers or the Secretary of State who will exercise the powers referred to in Clause 2(1) in relation to “implementing” the international agreement on the one hand and “applying” it on the other. This is an indication, surely, that the Bill is seeking to crowd too much into this clause. It would be far better to leave these matters to primary legislation according to the ordinary and well-understood rules as to which legislature is to deal with what, according to what is reserved and what is not.

Secondly, the umbrella phrase “any international agreement”—I stress the word “any”—indicates that it is intended to catch a wide variety of international transactions relating to private international law. At present, leaving aside Lugano, we have no idea of what they might be. It seems likely, however, that they will not be many, but any one of them could be very important and raise issues which should not be left to the exercise of Executive power. The pressure on Parliament if we were to proceed by way of a Public Bill in the ordinary way and not by way of statutory instrument would be quite limited. Therefore, it is hard to see why we have to go down this road at all.

Thirdly, there is no sunset clause in the Bill. I could understand it if it had been intended to deal only with measures that needed to be in force before the end of the implementation period or measures that were otherwise urgent and short term, but, without such a clause, this Bill is entirely open ended. Committing all international agreements to the statutory instrument procedure at Westminster and in the devolved legislatures as a permanent feature of our law, whatever the political situation might be, seems to be highly undesirable.

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[Lord Falconer of Thoroton]

My Lords, I will speak very briefly because this amendment has little significance now that the House has decided to remove Clause 2.

Schedule 6 deals with detailed regulation-making power under Clause 2. We will put down an amendment at Third Reading to get rid of Schedule 6, so this does not matter. I tabled Amendment 10 simply to illustrate the width of the power that was being given under Clause 2 and, had we lost the argument on Clause 2, to indicate that we would seek to remove this power. The power in Clause 2(1)(b) allows the Executive by statutory instrument to create offences in connection with the introduction of a private international law treaty with a punishment of up to two years. That is wholly inappropriate, and it illustrates the danger of what was being proposed. But I will not press this amendment to a Division because Schedule 6 will go in any event.

[Lord Pannick [V]]

As the noble and learned Lord, Lord Falconer, said, Amendment 10 is now academic, but it provides an opportunity to mention that one of the concerns of your Lordships’ Constitution Committee is that Bills regularly seek to confer on Ministers the power to create criminal offences.

Paragraph 21 of the committee’s report on this Bill— HL Paper 55—said that the conferral of delegated powers to create criminal offences, particularly those that are subject to imprisonment, is “constitutionally unacceptable”. We made the same point in paragraph 30 of our report of 9 June—HL Paper 71—on the constitutional issues raised by Brexit legislation. There needs to be a strong justification for departing from that general principle. I hope, as I know do the other members of your Lordships’ Constitution Committee, that Ministers will take account of these important principles. If they do not and they bring forward similar clauses in other Bills, we will report on them accordingly to the House.

[Lord Thomas of Gresford [V]]

My Lords, as I said in Committee, it is a matter of important principle that criminal offences must be clearly defined. I pointed to the criminal offences created, without consultation or debate, by way of regulations, in connection with the current lockdown. I pointed to the fact that they had caused confusion between the Prime Minister and his cohorts and virtually the rest of the country. Since I spoke on that matter, these offences are being amended, or new offences are being created, on, it seems, almost a weekly basis.

As my noble friend Lord Marks pointed out in the previous debate, there can be no clarity as to even the topic of a future international agreement, so there is no clear context within which this House can consider the power to create criminal offences in the field of private international law.

Last week, when we came to debate the Agriculture Bill, I was interested to note that precisely this point had been made by the Delegated Powers Committee: that it was against principle for sentences of imprisonment to be imposed by way of regulation. That was part of the original agriculture Bill, which fell at the time of the general election. In the new Agriculture Bill, Defra has withdrawn its position and is no longer asking for the provision of power, by regulation, to create criminal offences punishable by imprisonment. To my mind, this is a very good way of proceeding, and I hope that it spreads to other government departments.

Private International Law (Implementation of Agreements) Bill [HL]

Lord Pannick Excerpts

Committee stage & Committee: 1st sitting (Hansard) & Committee: 1st sitting (Hansard): House of Lords
Wednesday 13th May 2020 Lords Chamber

[Lord Falconer of Thoroton (Lab)]

My Lords, the effect of the three amendments in this group—Amendments 1, 4 and 5—is that the power in Clause 2 which allows a Minister by regulations to change the law of the United Kingdom to reflect an international treaty on private international law that the country has entered into would be restricted to the Lugano convention only.

It is perhaps sensible if, in addressing the three amendments in this first group, I set out the context, in effect, of most of my amendments in Committee. Clause 1 introduces into the domestic law of the UK the content of three private international law treaties: one dealing with the abduction of children from one country to another; one dealing with the enforcement of child support and family maintenance orders; and one dealing with commercial agreements where a choice of court clause is specified in the agreement. The effect of bringing these three conventions into UK law is that the terms of those conventions become part of our domestic law and are what our courts then give effect to as part of the law. For example, the Hague abduction treaty means that where a couple bring up a child in one country, where there is custody with one parent, and that child is abducted by the other parent to another country—for example, the UK—then, according to that convention, the UK courts, as a matter of domestic law, should return the child to its normal place of residence and should refuse to do so only if there is fear for the child’s safety.

These private international law agreements change the law of the country as a result of agreements that the Executive have entered into. We on these Benches have no objection to those three treaties being brought into domestic law—this is a piece of primary legislation—but we have very considerable objections to Clause 2, and our primary position is that it should not stand part of the Bill. It allows the Government to change the law of the country by delegated legislation, even by changing primary legislation, to give effect to agreements that they have entered into in private international law.

Our objections are, in effect, threefold. First, as a matter of constitutional propriety, this is wrong. It is wrong that there should be such little accountability by Parliament in respect of potentially very significant changes in the law. In support of that principled constitutional objection, I have the support of the Constitution Committee, which is chaired by my noble friend Lady Taylor, the Delegated Powers Committee, which is chaired by the noble Lord, Lord Blencathra, and the chair of the Treaties Sub-Committee, my noble and learned friend Lord Goldsmith. All see this as a matter of constitutional impropriety.

In the face of that unanimity of view about what is a constitutionally improper thing to do, what is the Government’s justification for doing this? I have scanned carefully the two speeches by the noble and learned Lord the Advocate-General for Scotland, Lord Keen of Elie, at Second Reading about why this move is justifiable. He gave no general explanation in either speech. He acknowledged in his opening speech that there might be an issue about the Lugano convention, which deals with the jurisdiction and enforcement of judgments between, among other things, members of the European Union. He said that we might end up in a situation where we want to join the Lugano convention, that we have to do it before the end of the transition period, and that we would negotiate it only at the very end of the period. He said that because of those exceptional circumstances there should be power to join the Lugano convention by delegated legislation.

For that reason—and that is the only example given —we have tabled, by way of probing amendments, Amendments 1, 4 and 5, which restrict the power to the Lugano Convention because of those special circumstances. There is a live debate about whether the UK should join the Lugano Convention, and in his speech at Second Reading the noble and learned Lord, Lord Mance, set out the shortcomings of the convention.

My preference is that we delete Clause 2 altogether and that, if the Government of the day join an international convention that has effects on our domestic law, that should be approved only by primary legislation. It is said that private international law is a “narrow” and “specialist” topic. The complex rules surrounding it can be both narrow and technical, but they deal with hugely important issues that affect everybody, such as family life, consumer, personal injury and international trade issues. That the law is complex does not mean that the issues covered are not of real significance.

I invite noble Lords to consider whether they wish to restrict Clause 2 only to the Lugano Convention, but that is in the wider context of urging them not to allow the Government this wholly inappropriate power, never used previously and for which no proper justification has been given. I beg to move.

[Lord Pannick (CB)]

My Lords, I support the observations so powerfully made by the noble and learned Lord, Lord Falconer of Thoroton. I too am concerned about the width of Clause 2. My concern arises from the discussions and conclusions of your Lordships’ Constitution Committee, of which I am a member, serving under the distinguished chairmanship of the noble Baroness, Lady Taylor of Bolton.

As the noble and learned Lord, Lord Falconer, said, the committee concluded that Clause 2 raises matters of considerable constitutional concern. The concern is that, with the exception of EU law—from which we are in the process of extracting ourselves—it is a fundamental principle of our constitution that international agreements can change the content of our domestic law only if and when they are given force by an Act of Parliament. The Constitution Committee saw no justification for the change that Clause 2 would introduce—that is, to confer on Ministers a power to achieve such a result by statutory instrument.

We recognise that many of the international agreements to which Clause 2 would apply are technical in nature and that their text cannot be changed after negotiations have concluded; nevertheless, we think there is no justification for allowing our law to be changed by statutory instrument without the need for full parliamentary debate. Clause 2 will allow not just for the implementation of the text of the international agreement but for “consequential, supplementary, incidental” provisions. It will allow Ministers to create new criminal offences by statutory instrument. These are matters requiring detailed scrutiny of a Bill through the various stages of the parliamentary process, during which amendments can be debated and, if necessary, divided on. Members of the Constitution Committee are concerned to maintain ministerial accountability to Parliament. This is not emergency legislation; it is a proposal for a permanent shift in power to the Executive.

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[Lord Pannick]

An important part of the Minister’s argument is that an affirmative procedure suffices because all that Parliament is doing is approving, or not approving, an international agreement which cannot be amended. The noble and learned Lord, Lord Mance, has already made the point that this may involve very detailed and important policy questions. Can the Minister comment on a further point that, in any event, Clause 2 confers power on the Minister, not only to make regulations for the purpose of implementing the international agreement but in connection with implementation? He will know that implementing legislation often includes provisions which may be of some importance, which are not mandated by the international agreements but arise from them.

There may be discretionary decisions to be taken—for example, in relation to the creation of criminal offences. Therefore, I put to the Minister that it is not good enough to say that all Parliament is doing is implementing an international agreement which has already been negotiated and agreed. There are policy decisions that the statutory instrument will contain, and primary legislation is required so that Parliament can debate these policy choices in a proper, effective way and, if necessary, seek to amend the provisions, which are distinct from those contained within the agreement itself.

[Lord Keen of Elie]

There may of course be incidental policy issues that arise when we come to draw down into domestic law an obligation, or obligations, undertaken at the level of international law. Clearly, in circumstances where there were policy choices to be made, a Government would consult upon those matters to bring forward policy choices that were acceptable to stakeholders. If they were not acceptable to Parliament, even after consultation, Parliament would not pass the affirmative SI in question. I do not accept that it is necessary in each and every instance to bring forward primary legislation for this purpose. In those exceptional cases where there may be consequential issues to be addressed, clearly they will be addressed at policy level. They will be consulted upon and the matter brought forward. The Government will not bring forward a policy proposal for an incidental measure without realising that Parliament would be prepared to accept it. That would be a pointless exercise.

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[Lord Falconer of Thoroton]

My Lords, I believe that Clause 2 should not stand part of the Bill. We have discussed these matters at considerable length today. I simply make the point that it will be constitutionally unprecedented if we end up in a situation where the Government have complete power in relation to private international law agreements in the future, not only to implement the changes to domestic law that are required by secondary legislation but to make regulations that relate to those agreements or connect with them, which goes very much wider than the terms of the agreement itself.

We have discussed considerably today the justification for this unprecedented power and it has been demonstrated —mainly on the question about timely implementation—not to withstand any degree of examination. I feel strongly that the House should reject Clause 2; we cannot do it in this Committee but, when the time comes, we should vote to remove it from the Bill. I think it is a separate debate as to whether there should be a special power in relation to Lugano, but this provision gives unlimited power for an unlimited time to introduce the consequences of international agreements into our domestic law with no primary legislation.

One final point, which has been made by the Constitution Committee, is that the consequence of doing this by secondary legislation is that it can be challenged in the courts and set aside by the courts on the grounds of judicial review. So not only is it constitutionally inappropriate, not only will it damage the quality of our private international law, but it will lead to legal uncertainty. Actions will be brought in court but set aside. I will invite the House on Report not to allow this provision to stand part. There is unanimity in this Committee with the exception—the plucky exception—of the Minister in that respect.

[Lord Pannick]

My Lords, I agree with the observations of the noble and learned Lord, Lord Falconer of Thoroton. I gave my reasons earlier for thinking that Clause 2 should not stand part and I shall not repeat them. I shall add just one further point. There has been discussion this afternoon, particularly from the noble Lords, Lord Adonis and Lord Foulkes of Cumnock, about the disadvantages of Virtual Proceedings, disadvantages notwithstanding the exceptional efforts made by the clerks and the staff, for which we are all very grateful, to ensure that these Virtual Proceedings can take place. The additional disadvantage that I want to mention—additional to those who have already been identified—arises from the correct observation of the noble and learned Lord that the Minister stands alone on this subject; all other speakers have explained why Clause 2 is objectionable.

The point is that if we were on the Floor of the House, the Minister would not just hear and see those who are speaking; he would see and hear expressions of disapproval from all around the House, including from his own Benches; he would sense the degree of concern that there undoubtedly is about the constitutional implications of Clause 2. This debate has highlighted those concerns, but I hope the Minister will understand that there is a very widespread concern around the House, not just from those who have spoken today but from those who would be present in Committee were normal proceedings to apply. By their presence and their body language, other Members of the Committee would indicate their profound concern. I hope he will take all that into account before Report.

[Baroness Taylor of Bolton (Lab)]

I am in a slightly different position from many noble Lords because I joined this Committee sitting simply because of the strong feeling on the Constitution Committee, which I chair, that Clause 2 should not be part of the Bill. I am not a lawyer, so I have listened to the last nearly four hours with great interest. I knew that this was a complex area; having listened to all that has been said I think it even more incredible that the Government are actually suggesting that issues of this kind should be decided simply on their say-so and by secondary legislation. I cannot comment on the details and complexities of Lugano or anything else, but I have heard qualified senior lawyers talking about this, and anyone who has heard that would be convinced that there should be proper parliamentary consideration of all these issues before the Government are allowed to take any direct action. It is simply wrong, I think, that these matters will be determined by secondary legislation.

The Constitution Committee was unanimous in its view: we do not divide on party lines anyway, but it was not a difficult discussion, because members of the committee thought it was blindingly obvious that Clause 2 should not be part of the Bill. 

We did, of course, have another thought at the back of our minds. That is the fact that we have been increasingly concerned, over many years, by the way in which the Government have used—or maybe abused—secondary legislation. We have seen an increase in the powers taken through secondary legislation. It is a question of not just the number of SIs but their content. The noble Lord, Lord Pannick, referred earlier to some of the consequences that might arise from this situation in the creation of new criminal offences if Clause 2 remains. We have seen new criminal offences created by SIs produced by the Government. I know that the noble and learned Lord, Lord Judge, will speak later; I am sure that he will emphasise this very significantly.

Put simply, the Constitution Committee thinks it wrong that international agreements should be dealt with by the Government through secondary legislation. I certainly hope that either the Government will think again about this or that this clause can be taken out on Report. I share the concerns expressed by my noble and learned friend Lord Falconer, my noble friend Lord Adonis and others about the procedure whereby we cannot vote at this time and express our opinion properly. However, I urge the Government to consider absolutely all that has been said today and realise that it is not good for parliamentary democracy and accountability for Clause 2 to remain part of the Bill.

Terrorist Offenders (Restriction of Early Release) Bill

Lord Pannick Excerpts

2nd reading & 2nd reading (Hansard) & 2nd reading (Hansard): House of Lords
Monday 24th February 2020 Lords Chamber

[Lord Marks of Henley-on-Thames (LD)]

My Lords, I am grateful to the Minister for the careful way in which he has opened this debate. No one who considers the recent attacks at London Bridge and Streatham High Road can fail to understand the Government’s concern to prevent further such events. At Fishmongers’ Hall on 29 November, Usman Khan, released at the end of 2018 after serving eight years of a 16-year sentence, brutally killed two people and injured three others near London Bridge, ironically and cynically while attending an event on prisoner rehabilitation. On 2 February, just over three weeks ago, on Streatham High Road, Sudesh Amman, released less than a fortnight earlier after serving half of his three and one-third year sentence for possessing and disseminating terrorist documents, stabbed two innocent members of the public.

So it is not surprising that public attention has focused on the fact that these two terrorist offenders had been so recently released from prison at the time of their offences and that the Government are clearly committed to preventing a recurrence of such offences by recently released offenders. And there is much in this Bill that we welcome. For example, it is clear to us that the Parole Board should be involved in assessing whether prisoners can be safely released before their early release on licence.

But there are two aspects of the Bill which cause us particular concern. First, the Bill alters release dates and defers release from prison for all offenders to whom it relates but contains or presages no new measures to improve the chances of deradicalising and rehabilitating such offenders. Secondly, the Bill offends against the common-law principle of retrospectivity: new criminal legislation should not have the effect of increasing the length of a prison sentence imposed on an offender who was sentenced before the new legislation was passed. By “length of the prison sentence” I include the time the offender is statutorily bound to spend in prison.

Taking the first point on rehabilitation and deradicalisation, it is worth noting that the Bill affects all offenders within its ambit, not only those who present a particular danger. For all those offenders, it reduces their time on licence when, for many, it is time spent under supervision, on licence after release, that offers the best chance of deradicalisation and rehabilitation.

We know that the probation service is in crisis, underresourced and demoralised, but we should aim to have an improved and well-resourced probation service with more time to work with prisoners following release, not less. Furthermore, there is real concern that spending longer in prison risks further radicalising not only those terrorist offenders but others they meet in prison. Only last Wednesday, the Times devoted its lead article and its first leader to radicalisation in prisons, and in particular a jihadist knife attack on prison staff by a prisoner in HMP Winchester who was there for non-terrorist offences. As the leader writer put it:

“Prisons are not only failing to deradicalise terrorists; in some cases they risk creating them.”


At Second Reading in the House of Commons, Theresa May, with all her experience, pointed out that the Lord Chancellor and the Government were

“absolutely right to be addressing the question of the automatic early release of terrorist offenders, but terrorist offenders will still be released at some point. That is why rehabilitation—the work that is done both in prison and when they are out of prison—is so important. There have been many efforts at this over the years, but, as recent incidents have shown, not always with success.”—[Official Report, Commons, 12/2/20; col. 867.]

In 2015, the Lord Chancellor commissioned former prison governor Ian Acheson to write a review of Islamist extremism in prisons, probation and youth justice. He reported in March 2016, making 69 recommendations, including the appointment of

“an independent adviser on counterterrorism in prisons … responsible for an overarching counterextremism strategy”,

special enlightened separation units, as he called them, for high-risk extremists, greater training for staff in cultural and religious traditions, tighter vetting of prison chaplains, tackling extremist literature, a focus on the safe management of Friday prayers to prevent their abuse, improving the speed of response to serious violence within prisons, and more involvement of specialist police from outside.

On 29 January this year, more than two years after his report, Mr Acheson presented a BBC documentary called “The Crisis Inside”, in which he said that he was appalled that his 69 recommendations had been distilled to 11, of which the Government had recommended the implementation of eight. There would be a new directorate but no new independent adviser.

On separation units, planning at this stage was apparently under way. But just three had been recommended, and of those only one had been opened, at HMP Frankland. In the programme Mr Acheson interviewed Fiyaz Mughal, the founder of Faith Matters, who said that the imams relied on by the Government lacked the strength or the skills to mount a credible challenge to the theological base of extremism that motivated the terrorists. He was also clear that the Government’s Healthy Identity Intervention programme was far too easy for prisoners to game and manipulate.

The probation service feels undervalued and largely ignored. It is significant that Usman Khan’s mentor following his release warned the Government of the danger he presented eight months before the London Bridge attack, but no notice was taken of his warning.

We are not handling this crisis well. In the Netherlands, France and Spain, serious terrorist and Islamic extremist prisoners are separated from others, with improvements in prison safety and order, and more chance of targeted counter-radicalisation interventions working. We have 220-odd terrorists in custody and we must do more to reduce the threat from them, all the way from the period before they are taken into custody to the period following their release.

I turn now more briefly to our second concern with retrospectivity. I shall try not to get bogged down in the detailed legal question of whether altering prisoners’ release dates part way through their sentence is a breach of Article 7 of the European Convention on Human Rights. The noble and learned Lord repeated the view of the Government that it is not such a breach, but there are many who disagree. However, the question cannot be entirely avoided in this debate. On the question of penalties, Article 7.1 provides:

“Nor shall a heavier penalty be imposed than the one that was applicable at the time the criminal offence was committed.”


In the case of Uttley in 2004, the House of Lords considered whether Article 7.1 had been infringed when statutory automatic release at the two-thirds point was changed to release on licence at the same point, because release on licence would involve the imposition of supervision and restrictions on Mr Uttley’s freedom under the terms of the licence. The House decided that the sentence that was “applicable”, to use the terms of the article, was the maximum sentence that could have been passed for the offence for which the defendant was originally convicted. It followed that Article 7.1 would be infringed only if a sentence imposed on a defendant constituted a heavier penalty than that which could have been imposed on him under the law in force when his offence was committed. Since Mr Uttley’s multiple sexual offences included three rapes, for which he could have been sentenced to life imprisonment, and since he was sentenced to only 12 years’ imprisonment, he could not complain that his 12-year sentence was not applicable when his offences were committed. It was also said that altering his release conditions was an act of administration of his sentence, not an increase in that sentence.

However, I would suggest that the decision in Uttley arguably has no application to the changes to the statutory automatic release date proposed in this Bill, because all relevant offenders will spend longer in prison than they were statutorily bound to serve under the terms of the 2003 Act when sentence was passed on them. Furthermore, in a Spanish case in the European Court of Human Rights, Ms Del Río Prada had been sentenced prior to 2000 to a total of more than 3,000 years of imprisonment for serious terrorist offences for the ETA. Under Spanish law, these sentences were subject to a statutory maximum of 30 years. In 2006, the Spanish supreme court decided that remission for work carried out in custody would be deducted not from that 30-year maximum but from the overall sentences, so that her release date was deferred by nine years from 2008 to 2017 and thus she would serve the full 30-year maximum. The Strasbourg court decided that the change in the treatment of remissions had not merely altered the manner of the execution of the penalty but had redefined its scope. Furthermore, when Ms Del Río Prada was sentenced, she was entitled to expect, as a matter of law, that her remissions would be deductible from the 30-year maximum. It followed that there was an infringement of Article 7.1.

For my part, I find it difficult to see how the decision in Uttley could enable this Bill to withstand a challenge under Article 7 on the basis of the Del Río Prada case, where every sentence passed on a relevant offender means that the offender will spend a third longer in prison than he would have done under the 2003 Act. The case of Uttley has been further considered in the UK courts, but I would not wish to predict that the view taken in Uttley could still prevail in Strasbourg.

However, I prefer to rest this regret Motion on the long-held—

[Lord Pannick (CB)]

Is the noble Lord aware of the recent judgment of the European Court of Human Rights in Abedin v the United Kingdom on 12 November 2019? This dealt with the change to the statutory regime and said:

“Nothing in the Court’s judgment in Del Río Prada”—


which the noble Lord is relying upon—

“called into question the central proposition outlined in Uttley that where the nature and purpose of the measure relate exclusively to a change in the regime for early release, this does not fall part of the ‘penalty’ within the meaning of Article 7”.

Therefore, the complaint was dismissed. That case would suggest that there is no basis for a complaint about this Bill.

[Lord Marks of Henley-on-Thames]

My Lords, I am familiar with the case of Abedin. I do not accept, however, that that involves or considers the position here, where the length of time spent in custody is changed by statute from the automatic release that prevailed under the 2003 Act to the prohibition on release before the two-thirds point that would prevail once this Act was passed. Abedin did not answer that point. It concerned the mechanism for release; it did not concern the overall time that was necessary by statute to be spent in custody. That is the answer to the direct point of the noble Lord, Lord Pannick, on the ECHR jurisprudence.

I was saying that I prefer to rest this regret Motion on the traditional common-law principle against retrospectivity. When we debated before the recess the Sentencing (Pre-consolidation Amendments) Bill, the noble and learned Lord rightly described the Bill as ensuring that it did not,

“contravene the general common law presumption against retroactivity.”—[Official Report, 11/2/20; col. 2253.]

The noble and learned Lord, Lord Hope of Craighead, described the principle as being,

“that the convicted person is not dealt with by the imposition of a penalty of any kind that is more onerous than that which applied when the offence was committed.”—[Official Report, 11/2/20; col. 2249.]

The penalty that applied when the 2003 Act was being applied meant automatic release at the one-half point. This Bill requires consideration of—not automatic —release only at the two-thirds point. That is one-third longer, and that is the point that I make. The noble and learned Lord, Lord Falconer of Thoroton, expressed anxieties on this point during the course of that debate, and I share them.

My concern, therefore, is simply that an offender convicted before this Bill is statutorily entitled to release at one half, under an automatic response. If this Bill is passed unamended, his release will be deferred until after the two-thirds point, and then only on a Parole Board assessment.

At Second Reading in the House of Commons, the Lord Chancellor tried to argue that this does not mean that the Bill will change retrospectively the sentence imposed by the court:

“Release arrangements are part of the administration of a sentence, and the overall penalty remains unchanged.”


That is the point made on Abedin by the noble Lord, Lord Pannick. A little later, however, the Lord Chancellor rather gave the game away in abandoning this position when he said:

“The justification for this emergency, retrospective legislation—out of the ordinary though I accept it is—is to prevent the automatic release of terrorist defenders in the coming weeks and months.”—[Official Report, Commons, 12/2/20; col. 872.]


Indeed, the noble and learned Lord today, in opening this debate, accepted that the Bill had retrospective effect but argued that it did not offend against Article 7.1. The Bill is retrospective, whatever the position under Article 7.1, and I do not believe that the Government have made a strong, evidence-based case for retrospection.

I will add only this. To impose apparent injustice on serving prisoners risks their being less amenable to rehabilitation, more resentful of their having their time in custody increased, and so more dangerous on release then they might otherwise have been. Significantly, the impact assessment at page 2 recognises both this risk and the risk to rehabilitation in the Bill, saying:

“A later release date and reduced (or no) licence period could disrupt offenders’ and family relationships and reduce opportunities for rehabilitation in the community, this would be more severe for young offenders and children convicted of terrorist offences. Additionally, there is a risk of prisoner frustration, disengagement or unrest at changing release arrangements, though there is little evidence to support how prisoners will actually react, and reaction is likely to vary from prisoner to prisoner.”


I fear that we abandon long-established principles at our peril. The peril is worse still when we legislate in a rush. We have amendments down in Committee seeking a review after a year of the operation of this legislation. We regard such a review as extremely important to consider its functioning when we have been denied, as we have, proper scrutiny at this stage. It is our intention to press those amendments in Committee. I beg to move.

--- Later in debate ---

[Lord Pannick]

My Lords, I agree with the Government that the changes to the early release provisions which will be introduced by this Bill are not a retrospective increase in the offender’s penalty, in breach of their rights under the European Convention on Human Rights. It is well-established that the penalty imposed on the offender is the term of years which he or she receives when sentenced by the judge: four years, for example. An alteration in the early release provisions within that four years does not affect the penalty, and so such a change may be imposed on serving prisoners. A long line of cases, both in this jurisdiction and in the European Court of Human Rights, establishes that proposition—most recently, as I suggested to the noble Lord, Lord Marks, the decision of the European court on 12 November 2019 in the case of Abedin v the United Kingdom. The noble Lord, Lord Marks, then argued that there is a common law principle against retrospectivity. Well, there is certainly a presumption against retrospectivity, but it is not an absolute rule.

The question in every case is whether there is a justification for acting in a retrospective manner. It seems to me that, in this context, there is such a justification. Offenders are about to be released early without a Parole Board assessment of whether that is safe. No doubt the Government should have acted more speedily to address this problem, as the noble Lord, Lord Harris of Haringey, and others have suggested, but any fault does not alter the situation in which we now find ourselves. My noble friend Lord Carlile is no doubt correct that further measures are needed to disengage terrorist offenders from their perverted ideology, but again that does not remove the urgent need to disapply the right to automatic early release of those who pose a real danger to the community.

I agree with the Government on all of that, but I have two concerns about the Bill. The first is why it does not provide for a Parole Board assessment by the time these offenders have served half their sentence—a point made by the noble and learned Lord, Lord Falconer of Thoroton, and my noble friend Lord Anderson of Ipswich. As noble Lords have heard, the Bill confers a right to a Parole Board assessment only after two-thirds of the sentence has been served. Since these offenders were previously entitled to release after half their sentence, the proportionate step to take to meet the mischief that there is currently no safety valve of a Parole Board assessment may be to provide for a Parole Board review after half the sentence has been served. That would mean that only those assessed as safe to be released early would be so released. Indeed, the effect of the Bill will be to keep in prison those who have served half their sentence, who would be assessed by the Parole Board as safe to be released. It is unfortunate that the Minister did not address this issue at all in his opening remarks, despite the fact that there is an amendment down. I very much hope that he will enlighten the House on this matter in his closing remarks.

My second concern is that the Government have not followed the recommendations in the 2009 report of your Lordships’ Constitution Committee on fast-track legislation, a matter which, again, the Minister did not address in his opening remarks. I was a member of that committee in 2009 and, like the noble Lord, Lord Beith, I remain a member. The 2009 report recommended that when fast-track legislation is enacted, there should be a presumption of a sunset clause as a safeguard, because the normal process of parliamentary scrutiny would not have occurred. It seems all the more important that the Constitution Committee recommendation should be applied in this Bill. As your Lordships know, relevant parliamentary committees that would normally scrutinise this Bill have not yet been appointed; I refer to the Joint Committee on Human Rights, the Justice Committee, the Home Affairs Committee and the Intelligence and Security Committee. None of these has been appointed yet—I find that extraordinary—and, therefore, they have not been able to scrutinise this Bill.

We are told that the Government plan to introduce a counterterrorism Bill later in this Session, dealing with sentencing and release, but we all know that such plans do not always come to fruition. Indeed, the noble and learned Lord had that experience in relation to the online courts Bill; we are still waiting for it to come back. Bills that are anticipated do not come forward for a variety of reasons. It seems therefore very unfortunate that we are being asked to enact, on a fast-track basis, a Bill that does not contain a sunset clause. I hope that the Minister, in closing the debate, will address that matter.

Northern Ireland (Executive Formation) Bill

Lord Pannick Excerpts

Committee: 1st sitting (Hansard): House of Lords
Monday 15th July 2019 Lords Chamber

[Lord Pannick (CB)]

My Lords, I very much look forward to serving with the noble Lord, Lord True, on your Lordships’ Constitution Committee, to which he has recently been appointed. He will bring, I think it is fair to say, a fresh perspective to our deliberations.

I am very sorry that the noble Lord does not appear to understand the constitutional impropriety of a Prime Minister advising Her Majesty that Parliament should be prorogued for the express purpose of preventing Parliament expressing its views and taking action to prevent a no-deal Brexit. It is the motive for which such advice would be given that distinguishes such advice, and such Prorogation, from the examples he gave. The point is a very simple one.

I also much regret that the noble Lord sees fit to deprecate citizens of this country taking legal action to challenge the legality of conduct of the Prime Minister—

[Lord True]

Will the noble Lord give way?

[Lord Pannick]

Can I just finish the sentence? The noble Lord referred as a matter of criticism, as he sees it, to unelected judges deciding matters. Judges are deciding the law of the land: that is their job and their responsibility. I think it is shameful, if I may say so, that a Member of this House should deprecate that process and the rule of law on which we pride ourselves.

[Lord True]

My Lords, I will deal with the noble Lord’s condescending condemnations later. I ask him to withdraw the statement that I deprecated the act of any citizen. I ask him what citizen I attacked in any part of my speech.

[Lord Pannick]

I am not referring to particular citizens; I am referring to the very clearly expressed statement, which I heard and I think other noble Lords heard, that it is inappropriate and wrong for “unelected judges”—those were his words—to decide on the law of the land. That is their job. We pride ourselves on the rule of law in this country, and that is a fundamental element of the rule of law. I say that not just because I have an interest in this matter: my noble friend Lord Anderson of Ipswich referred to the fact that I have given advice to one particular citizen, Mrs Gina Miller, and I have given the legal advice that for a Prime Minister to advise Her Majesty to prorogue Parliament for the express purpose of preventing Parliament performing its constitutional responsibilities would be unlawful.

However, we are not here today to debate the law; we are here to address, as my noble friend Lord Anderson rightly said, what would be a constitutional outrage. I strongly support the amendment in the name of my noble friend, which is a means by which this House can prevent such an appalling eventuality.

[Lord Newby]

My Lords, I am extremely grateful to the noble Lord, Lord True, for taking up my invitation to speak before I did. Apart from enlivening proceedings, it has given me the chance to respond to some of the things he said. I congratulate him on having a very acute and astute understanding of the policies of the Liberal Democrats when it comes to Brexit. These are not exactly secret, but he got them to a T.

One thing, however, that I think the noble Lord was wrong about was the suggestion that because we want the people to decide on Brexit, and we would prefer it if they decided they did not want Brexit, we are saying—far from it—that there should be no vote in September in the Commons about a no-deal Brexit. I would welcome such a vote. This amendment, this procedural gambit, is necessary only because we believe it is reasonable to take precautions against the new Prime Minister preventing the Commons having a vote. The only reason for it is that everybody in your Lordships’ House knows that, if the Commons votes on a no-deal Brexit, it will vote it down. The only way you get that outcome is by some kind of chicanery: the chicanery of proroguing Parliament purely for that political purpose. We believe, as does the noble Lord, Lord Anderson, and the other signatories to the amendment, that that would be an improper use of Prorogation.

The noble Lord, Lord True, said that this Session has gone on far too long. Perhaps it has. I should be delighted to have Prorogation on 1 November, but Prorogation requires a Prime Minister with a plan and a Queen’s Speech with some substance. If the incoming Prime Minister has such a plan and such a speech by 1 November, the entire country will be delighted. We fear that there is nothing but vacuity where there should be a programme and that Prorogation will continue far beyond 31 October or 1 November because the Government do not know what to put in a Queen’s Speech.

It is extraordinary that your Lordships’ House is having to resort to a procedural gambit in order to try to prevent a Prime Minister subverting the constitution. That sort of thing happens in tinpot dictatorships. We go around the world saying, “Of course, it does not happen here because we are so much more grounded in constitutional principle. No, it could not happen here”. The truth is that the incoming Prime Minister has not ruled out such a thing. It would have been very easy for him to have said, “Of course, I would never contemplate such a step because I know that it would be a constitutional impropriety and shameful for our democracy”, but he has refused to say that. What are we expected to do? Just sit on our hands and trust in the good sense of the incoming Prime Minister? There may be some people in the Conservative Party prepared to do that, but it does not extend much beyond that.

That is why we have an amendment which is a procedural gambit in a Bill about Northern Ireland: because it is all we have. We have seen no other way to put something on the statute book to prevent the constitutional principles of this country being ripped up. It is of course unsatisfactory to do that, but it is because we are in an extremely unsatisfactory position. That is why we strongly support the amendment.

Courts and Tribunals (Online Procedure) Bill [HL]

Lord Pannick Excerpts

3rd reading (Hansard): House of Lords
Tuesday 2nd July 2019 Lords Chamber

[Lord Marks of Henley-on-Thames (LD)]

My Lords, I wish simply to join in the unanimous praise and gratitude for the Government’s acceptance of those amendments that they have accepted, and their tabling of these amendments today. The Online Procedure Rules are intended to introduce a new and simplified procedure. We were concerned to ensure that litigants who were going to find it difficult to use that procedure, particularly in so far as it was a digital procedure and they would not be using paper means to conduct proceedings, should not be excluded by difficulty from approaching the procedure and should have afforded to them the kind of assistance they would need to handle litigation, without the need for lawyers, under the Online Procedure Rules.

We are particularly grateful for the Government’s acceptance of Amendment 4, which imposes a duty on the Lord Chancellor, as the Minister has explained, to provide assistance or support for digitally excluded people, and these amendments tie in the obligation to have regard to the needs of those people in conducting that litigation. I was particularly concerned about the use of the word “technical” in relation to that assistance, because it seemed to us that that might be unduly restrictive. I am grateful for the excision of that word from the amendments.

[Lord Pannick (CB)]

My Lords, I too thank the Minister very much, even in relation to a Bill which, as the noble Lord, Lord Marks, has just said, seeks to reduce the role and importance of lawyers in litigation. I want to add two points. The first is to remind the House that the concerns which the Minister has so satisfactorily addressed arise from the report of your Lordships’ Constitution Committee, under the distinguished chairmanship of the noble Baroness, Lady Taylor of Bolton. This confirms the value of the committees that serve this House—I am of course a member of that committee—and reinforces the importance of the non-partisan nature of these committees and the value of the work they do.

Secondly, without in any way undermining the sense of unanimity and gratitude to the Minister, I just remind him that there is one contentious issue which goes to the other place. Your Lordships’ House insisted on amendments, against the wishes of the Government, to what are now Clauses 9(4) and 10(3), requiring the concurrence of the Lord Chief Justice. I very much hope that the Minister will be able to use his good efforts to ensure a satisfactory resolution of that issue, as well as all the other issues. The Minister’s role in this Bill has been quite exemplary, and he has done a great deal to ensure that it will leave this House in a much better state than when we started it.

[Lord Keen of Elie]

I am obliged to all noble Lords and all noble and learned Lords for their observations regarding the Bill. As the noble Lord, Lord Beith, observed, it may be difficult to anticipate the speed with which these online procedures are taken up by individuals, but one is reminded of a character in an Ernest Hemingway novel who is asked how he became bankrupt and replies, “Gradually and then suddenly”. It may well be that we will see a similar development with these digitised procedures.

I note what the noble Lord, Lord Pannick, and the noble and learned Lord, Lord Judge, have said. The term “satisfactory resolution” is of course open to interpretation. I observe merely that the extent of permanent constitutional reform anticipated by some of the amendments that passed may not be as great as the noble and learned Lord anticipates. However, we wait to see the reaction in the other place.

Again, I thank all noble Lords for their contributions to the Bill. It leaves this House a better Bill than it came in—I have no doubt at all about that.