Fisheries Bill [HL]

Debate between Lord Pannick and Lord Northbrook

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

[Lord Northbrook (Con)]

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

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

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

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

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

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

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

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


At paragraph 7, it states:

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


Finally, paragraph 9 of the report states that:

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


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

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

[Lord Pannick (CB)]

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

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

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

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


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

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

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

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


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

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

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

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

“‘break glass in emergency’ clause”,

and simply not good enough to justify what he described as

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

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

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