Northern Ireland Protocol Bill

Lord Stewart of Dirleton Excerpts

2nd reading
Tuesday 11th October 2022 Lords Chamber

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

My Lords, I begin by expressing my appreciation for the very large number of thoughtful and informed contributions we have heard during this debate. It has been an honour to have heard it and now to become a part of it. It has grappled with not only the grave political and constitutional matters before us but has cited the Marquess of Salisbury, by my noble friend Lady Nicholson, Montesquieu and The Spirit of the Laws by the noble Lord, Lord Morrow, Shakespeare’s “The Merchant of Venice” by my noble friend Lord Moylan and that peerless advocate and exemplary parliamentarian Sir Edward Carson by the noble Baroness, Lady Hoey. The debate also heard the expression “Piss off” used by the noble Lord, Lord Russell of Liverpool, which I had perhaps not anticipated hearing in a debate in your Lordships’ House.

On behalf of the whole House, I am sure, I echo the words of the noble Lord, Lord Rogan, and others on the loss to our counsels constituted by the death of Lord Trimble. I also echo his comments on the loss to Lord Trimble’s community, the whole of Northern Ireland and his family.

Before I turn to the points raised by various noble Lords, I will briefly restate the reasons for introducing the Bill. The Northern Ireland protocol was agreed with the best of intentions, to ensure that the Belfast/Good Friday agreement was protected in all its dimensions as the United Kingdom left the European Union. The departure of the United Kingdom from the European Union is, as the noble Baroness, Lady Fox of Buckley, put it so trenchantly, a UK matter. It is not to be balkanised in terms of how it played out in London, Northern Ireland, Scotland or Wales. It is a United Kingdom matter.

But in its practical operation, the protocol is causing practical problems for people and businesses in Northern Ireland, including disruption and diversion to east-west trade. That disruption is present in the rest of the United Kingdom and it is causing significant costs and bureaucracy for businesses and traders.

Moreover, political life in Northern Ireland is, as your Lordships have heard on numerous occasions, built on compromise and power sharing across communities. However, as noble Lords have also heard, the protocol does not have the support of all communities in Northern Ireland. The noble Lord, Lord Dodds of Duncairn, was but the first to explore this point. As a result, we are seeing political and social stress in Northern Ireland, including the non-functioning of the Northern Ireland Executive and Assembly. It is clear that the protocol is putting strain on the delicate balance inherent in the Belfast/Good Friday agreement.

It remains the Government’s preference to reach a negotiated agreement on the protocol. I could not associate myself more with the comments from all sides of your Lordships’ House—the noble Lords, Lord Triesman and Lord Bach, on the Benches opposite, the noble Baroness, Lady Wheatcroft, and my noble friend Lord Tugendhat—on the importance of negotiation and the hopes the Government have that it will ultimately bear fruit. My right honourable friend the Foreign Secretary has reiterated this. He and Vice-President Maroš Šefčovič have agreed that officials should meet to discuss technical solutions. The Bill contains provisions to implement any future negotiated agreement with the European Union. I can give an assurance at this stage to my noble friend Lord Frost that we are clear that negotiations must be able to address the full range of serious issues caused by the protocol. The Bill is set up to enable us to do precisely that.

In answer to a point raised quite early in the debate by the noble Lord, Lord Ricketts, our EU partners and friends are aware of this Bill. They are aware that negotiations continue and recognise that there are problems to resolve.

My noble friend Lord Forsyth of Drumlean spoke early in the debate about the manner in which the protocol has been operated. I will revert to that point when I discuss, at a level I think appropriate to Second Reading, the implications of the Government’s stance for international law. However, I must stress to your Lordships’ House that the problems created by the protocol are urgent and require swift action. The Taoiseach, the Irish Premier, said publicly last week that the protocol as it was originally designed was a little too strict. These problems are of long standing and we now seek to address them. But while we engage in dialogue with the European Union, we must also ensure that we have covered all bases and that the United Kingdom Government have the ability to implement durable solutions in any scenario.

I now propose to turn to some of the specific themes and questions raised in this evening’s debate. I do that against the undertaking that if I should fail to refer specifically to the contributions of any of your Lordships or fail to give consideration to any of your Lordships’ arguments proper to this stage of Second Reading, I am happy to engage with your Lordships in writing or in person in the corridors of this place, or for that matter, elsewhere.

The matter that featured most strongly in your Lordships’ deliberations today arose out of the matter of international law and the argument from necessity. The Government have already published a statement of their legal position on the Bill and their position is that it is lawful and necessary. The noble Lord, Lord Birt, from the Cross Benches and my noble friend Lord Kirkhope of Harrogate seemed to suggest to your Lordships that the voice of the legal profession was as one in saying that this was not the case. That is not so. The Government have a worked-out position in international law and there is no reason why we should not take it forward.

The United Kingdom exercised its sovereign choice to leave the European Union single market and customs union. I discern that that course was not universally approved by your Lordships’ House. But the peril that has emerged was not inherent in the protocol’s provision. As to the universal opposition, which some of the contributors to this debate seemed to throw up, it is in the nature of law that it is often adversarial. It is in the nature of law that parties will have different approaches, just as it is in the nature of sincere friendship that sincere friends will often disagree, even on the most fundamental matters.

The strain that the arrangements under the protocol are placing on political institutions in Northern Ireland, and more generally on socio-political conditions, will leave the Government with no option but to take action if they cannot reach a negotiated solution with the European Union.

I listened with great interest to the comments as to law made not only by the many distinguished lawyers on the Benches of this place but from lay people concerned about the implications of the step that the Government were proposing to take. Opening for the Opposition from the Front Bench, the noble Baroness, Lady Chapman, began more correctly—or less wrongly—by saying that it was “likely” that this would amount to a breach of international law. Then she recovered the party line and said that it did breach international law. The curiosity was that I think that the lay people contributing to this debate about international law were, in fact, nearer to the truth than distinguished commentators such as the noble Lord, Lord Pannick, or my noble friend Lord Howard of Lympne, because the fact of the matter is that it is not possible—

[Lord Purvis of Tweed (LD)]

I do not want that honour.

[Lord Stewart of Dirleton (Con)]

I hear the noble Lord and will revert to him in due course. It is not possible to equiparate international law with domestic law. There is simply not enough of it and it is too dependent on facts and circumstances which will not apply from case to case to come up with a precedent which would allow noble Lords who have spoken in these terms to speak with such certainty.

Should I address the noble Lord, Lord Purvis of Tweed, at this stage? At an early stage in these proceedings, he spoke about the nature of the plea to necessity. I say again that it is very different from the interpretation of a domestic statute. Of course in international law there are similarities with domestic legislation, and of course in international law, often being a matter of paction, there are similarities with the law of contract. But it cannot be equiparated with, to use a metaphor that emerged from the Cross Benches, a contract for the sale of sausages. It is too complex and too fact-specific. That point was continued by the noble Baroness, Lady Suttie, my noble friends Lady McIntosh of Pickering, Lady Altmann and Lord Kirkhope of Harrogate, my noble and learned friend Lord Garnier—I am sure that I have missed others out; as I said, my undertaking is to engage with your Lordships to assist them in moving this forward—and, I decipher from my scrawl, the noble Lord, Lord McDonald of Salford, speaking from the Cross Benches. The assertion that the Government’s position breaches international law is too bold and lacking in nuance. I submit that we are entitled to proceed on the basis that we anticipate that the protocol will be operated in a manner that reflects the unique and serious circumstances against which it was drawn up.

The doctrine of necessity was approached by the noble Baroness, Lady Crawley, and my noble friend Lord Hannay of Chiswick in particular, who equiparated—if I misattribute this to my noble friend, I apologise to him and will happily correct it—invocation of the doctrine of necessity with the law of President Putin. Far from it: there is authority for the existence of a defence of necessity dating back at least to the early 19th century. It was recognised by the International Court of Justice in 1997 in a case between Slovakia and Hungary regarding a dam on the Danube. It formed part of the International Law Commission’s articles on state responsibility, drawn up in 2001, as the Government’s statement on their legal position notes. In 1995, the Government of Canada justified steps taken to protect the Grand Banks fisheries on the basis that it was necessary to do so. If fisheries in the Atlantic are important, how much more so is the extension of democratic rights across the whole of this United Kingdom?

Invoking the doctrine of necessity does not repudiate international law or the international rules-based order. It is part of the international rules-based order. The noble Baroness, Lady Kennedy of The Shaws, my noble and learned friend Lord Clarke of Nottingham, the noble Lord, Lord Bach, and my noble friend Lord Tugendhat stated that the Government were undermining the rule of law and that this constituted a flagrant breach of the rule of law. Again, by invoking the doctrine of necessity, we operate within the framework of international law and—

[Lord Howard of Lympne (Con)]

Is not my noble and learned friend rather missing the point? None of us has suggested that the doctrine of necessity plays no part in international law. What we are saying is that it is not justified by the Government’s approach in this particular instance.

[Lord Stewart of Dirleton (Con)]

I respond to my noble friend by saying that the assertions that it breaches international law simply cannot be determined at this point because it is a matter of exploring the complex background of facts and circumstances, including the manner in which the protocol has been operated.

[Lord Thomas of Gresford (LD)]

Can the Minister define in a few words what the necessity is in this particular instance?

[Lord Stewart of Dirleton (Con)]

My Lords, I think it would be wrong of me at this stage in the Second Reading to engage in a deeper debate. I refer the noble Lord to the terms of the legal statement issued by the Government.

On the diminution of rights which were raised among your Lordships, I return to the point raised by my noble friend Lord Moylan and indeed by other Members of your Lordships’ House from Northern Ireland: what are we to say of the diminution of rights which strips from citizens of this country the right to make laws? Must we not look to that? At present, the circumstances of Northern Ireland strip our fellow countrymen of that right.

[Baroness Altmann (Con)]

My Lords—

[Lord Stewart of Dirleton (Con)]

I will not give way at this stage.

An argument which was deployed by some of your Lordships, beginning with the noble Lord, Lord Ricketts, and continued by my noble friend Lord Northbrook, was that by these steps the Government are damaging the trust in the United Kingdom among its international partners. There is no reason why this legislation should damage trust among our international partners. The Government want to move past issues with the protocol and focus on the key global challenges, such as those emanating from the current Government of Russia. As regards this country’s standing in the world at large, people furth of this country will look to the unhesitating support offered by this country to a democratic state imperilled by an aggressive neighbour and take that as the badge and measure of this country’s approach.

[Baroness O’Loan (CB)]

My Lords—

[Lord Stewart of Dirleton (Con)]

My Lords, again, with the utmost respect, I decline to give way to the noble Baroness. She has my assurance that I will engage with her.

[Lord Purvis of Tweed (LD)]

The point is to answer noble Lords.

[Lord Stewart of Dirleton (Con)]

I hear the noble Lord; I will not give way.

It remains the Government’s preference to reach a negotiated agreement on the protocol, and further discussions are now under way with our European Union counterparts with the aim of identifying shared solutions. I can give my noble friend Lady McIntosh of Pickering repeated assurance of the importance of negotiation. We will continue to work closely with the European Union on the crisis of Ukraine, as we will with the United States and with all friendly powers and democracies throughout the world. We have always said that we want to fix the problems created by the protocol, in part so that we can focus our full collective energy on global challenges such as these.

The point was taken up at various points during the debate that the Bill threatens Northern Ireland access to Ireland and to the wider European Union single market. I stand before your Lordships in place of my noble friend Lord Caine, who I feel is far better equipped to answer these questions, drawing on his extensive experience of affairs in Northern Ireland. Again, he will undertake to engage with noble Lords on that point. Any perception of risk posed to the EU single market can be managed through market surveillance activities delivered by relevant United Kingdom bodies which will continue to prevent, deter and remove non-compliant and unsafe activity to protect the consumers of both the United Kingdom and EU markets. Market surveillance will follow the risk-based and intelligence-led approach as it does at present. As we have said all long, our preference is for a negotiated solution, and we stand ready to discuss appropriate assurances with the European Union.

The noble Baronesses, Lady Ritchie of Downpatrick, Lady Doocey and Lady Ludford, and the noble Lord, Lord Browne of Belmont, raised matters specific to agribusiness and dairy farming in particular. Again, I offer the House assurance that negotiations continue.

I am grateful to my noble friend Lord Frost for his account of the current economic situation and his summary of the historical situation in 2009 which my noble friend Lord Hannan of Kingsclere joined with his customary brio and, in the process, released a cat among the Liberal Democrat pigeons. I am also grateful to the noble Baroness, Lady Fox, whom I took to adopt the historical summary which my noble friend Lord Frost advanced.

I come next to the noble Lord, Lord Purvis of Tweed, who again very early in the debate raised the important point of an impact assessment. As the noble Lord pointed out, the Bill does not have an impact assessment. The full details of the new regime will be set out in regulations alongside and under the Bill, including economic impacts where appropriate.

Since the Bill was introduced, we have consulted extensively with businesses and other key shareholders on the underlying details of the regime to ensure that it is as smooth and as operable as possible. The Government are getting on with that task now.

The noble Lord, Lord Russell of Liverpool, seemed to invoke the concept of historical inevitability in his contribution towards the end of the debate. I am no Marxist but I am by no means clear that his exercise in foresight in relation to society in Northern Ireland will prove to be accurate.

A matter of grave and, if I may say, fully appropriate interest to your Lordships is that of the breadth of the Henry VIII powers. The noble Lord, Lord Bruce of Bennachie, my noble friend Lord Northbrook, the noble Baroness, Lady Ritchie of Downpatrick, once again, my noble and learned friend Lord Garnier, and the noble Baroness, Lady Meacher, in particular, raised these matters, and I apologise to other noble Lords whom I have not mentioned by name.

The Bill provides specific powers to make new law where we are disapplying the EU regime and where such law is appropriate to make the Bill’s regime work. These powers are restricted. They can be used only in connection with certain provisions and subject matter of the protocol, for example changing valued added tax rules in Northern Ireland.

It is important to emphasise that we are engaged in negotiations. We are not, as the noble Lord, Lord Kerr of Kinlochard, said, engaging in blackmail; nor are negotiations, as the noble Lord, Lord Thomas of Gresford, said, engaged in attempting to bully the European Union; and nor, as my noble friend Lady Altmann suggested, have we by this proposal become an elected dictatorship.

These provisions are necessary. They allow the Government to act as quickly as possible to deliver new policy arrangements, for example to introduce the green and red lane for traders. Since the Bill was introduced in June this year, the Government have consulted extensively. There have been over 100 bespoke sessions with over 250 businesses, business representative organisations and regulators.

I am being warned once again: noble Lords will doubtless be glad to see the back of me. The steps which we are taking are necessary to reflect the unique and dynamic situation in which the Bill passed in the other place.

In conclusion—

[Noble Lords]

Hear hear.

[Lord Stewart of Dirleton (Con)]

The Government have not triggered Article 16—from early in the debate, I note my noble friend Lord Howard of Lympne. The position is that it would not solve the radical, fundamental problems with the protocol. It would treat only some symptoms without fixing those root causes. As my noble friend Lord Moylan explained to your Lordships, the problem lies in the protocol and not in its application.

[Noble Lords]

Well done.

[Lord Stewart of Dirleton (Con)]

It would appear that I am losing the House’s patience.

The Bill allows the Government to implement lasting and durable solutions to the existing problems with the Northern Ireland protocol. While we remain committed to exploring shared solutions with the European Union, it is critical that we retain the ability to take action on the very real and urgent problems inherent in the protocol. I hope that noble Lords will recognise this and act in the best interests of the people of Northern Ireland by voting with the Government for the Bill. I am obliged to your Lordships.

Covid-19 Lockdown: Fixed Penalty Notices

Lord Stewart of Dirleton Excerpts

Thursday 14th July 2022 Lords Chamber

[Lord Strathcarron]

To ask Her Majesty’s Government what consideration they have given (1) to granting an amnesty to the 43 per cent of people who were issued with Fixed Penalty Notices (FPNs) during the COVID-19 lockdowns and who have not paid them, and (2) to refunding the remaining 57 per cent of people issued with FPNs who did pay them.

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

My Lords, the Government recognise that a proportionate law enforcement response was needed to get Covid-19 under control and get lives back to normal. Parliament agreed, and the Health Protection (Coronavirus, Restrictions) Regulations 2020 passed into law. While the majority followed the rules, it is right that those who put us most at risk by ignoring the rules faced appropriate penalties.

[Lord Strathcarron (Con)]

I thank the Minister for that reply. The police in England and Wales issued just under 119,000 Covid restriction lockdown fines. Most are well over a year old and 43% of them have not been paid and, let us face it, by now never will be paid. Part of the lockdowns’ collateral damage to all sectors has been the enormous courts backlog so, in the spirit of peace and reconciliation, will the Minister consider an amnesty for those who have not paid the fines and never will, and, in all fairness, a refund for those who have?

[Lord Stewart of Dirleton (Con)]

My Lords, I acknowledge the spirit in which my noble friend poses the Question, drawn perhaps out of his continuing interest in mediation as an alternative dispute resolution, but I make two points in response. First, consideration of an amnesty is not within the gift of the Home Office: police forces are independent of government. Secondly, funds ingathered under this scheme have already begun to be distributed among local authorities, hence the course for which he calls is not a feasible one.

[The Earl of Clancarty (CB)]

My Lords, I agree with an amnesty, but we seem to have gone from one extreme to the other, with a TUC survey that now finds 9% of employees showing Covid symptoms being forced to go to work. Does the Minister agree that anyone who tests positive or displays Covid symptoms should not be forced to go into work, and that no one should have to work alongside colleagues who are testing positive? Employees should, at the very least, be allowed that choice for the sake of their own health and the health of others.

[Lord Stewart of Dirleton (Con)]

My Lords, I am not sure how far it lies within the power of central government to make the orders for which the noble Earl calls. I will, if he wishes, correspond with him on just what the Government can do to prevent people being coerced into going into work against their will.

[The Lord Speaker (Lord McFall of Alcluith)]

The noble Baroness, Lady Brinton, is making a virtual contribution.

[Baroness Brinton (LD) [V]]

My Lords, the data in the National Police Chiefs’ Council report on fixed penalty notices issued in England and Wales shows the different approach to FPNs taken by forces. For example, Wiltshire and Gloucestershire issued less than half the number that Sussex and Norfolk issued. Will the reasons for those different rates be looked at, especially if persuasion was a more successful approach than penalties, so that lessons can be learned for the future?

[Lord Stewart of Dirleton (Con)]

My Lords, the circumstances on which the noble Baroness founds her question seem an inevitable consequence of the independence of police forces, to which I made reference earlier. The Home Office worked closely with the National Police Chiefs’ Council on the Government’s enforcement approach to the health crisis, with engagement at both ministerial and official level. Police forces were guided by instruction and advice from the College of Policing.

[Baroness Jones of Moulsecoomb (GP)]

My Lords, I have so many questions. The Minister talked about appropriate penalties, but there were people who escaped appropriate penalties—for example, at No. 10. Is there going to be any retrospective view of this? The Government gave out some very confusing messages, which may partially explain the difference in police force enforcement.

[Lord Stewart of Dirleton (Con)]

My Lords, I repeat my previous answer: it is the foundation of policing in England and Wales that individual forces are independent of central government and not accountable to central government for decisions they take. On the specific matter to which the noble Baroness refers, in relation to events down the street in Whitehall, I think that that has been investigated thoroughly by the Metropolitan Police.

[Baroness Doocey (LD)]

My Lords, fixed penalty notices were up to seven times more likely to be issued to black, Asian and ethnic-minority individuals, according to data produced by the Guardian. Will the Minister commit to ensuring that this disparity is investigated by the Covid-19 public inquiry?

[Lord Stewart of Dirleton (Con)]

My Lords, the disparities to which the noble Baroness draws my attention are a matter of concern for the Government, as well as for all right-thinking people around this House and beyond. I cannot speak for the independent inquiry that is being set up, but I assure her that the matter will be looked into by the Home Office.

[Baroness Foster of Oxton (Con)]

My Lords, first, I echo the points made by my noble friend Lord Strathcarron and I agree with what he said. I spoke recently in the coronavirus emergency measures debate, and it was clear throughout that a blur between guidance and regulation for lockdown restrictions had clearly come to pass. As has been said, thousands of people were issued with fines in one part of the country, while others never received even a warning for a similar offence. Does the Minister agree that the law of the land must apply across the board and cannot be determined by postcode, as that makes a mockery of the judicial system in this country?

[Lord Stewart of Dirleton (Con)]

My Lords, I regret that I cannot agree with my noble friend, for the reasons I have given. While a degree of support and advice was promulgated by the College of Policing and the Government, individual decisions were matters for individual police services across the country. That is a cornerstone of our policing in England and Wales and I think it merits support.

[Lord Coaker (Lab)]

My Lords, we should remind ourselves that the vast majority of the public conformed to the rules in the face of a pandemic; only a small minority did not and were issued with fixed penalty notices. Are the 43% who have not paid being actively pursued? What is the Government’s policy or advice to the police on that? It would be interesting to know whether all the people who have been issued with fixed penalty notices get a criminal record and what the consequences will be if people continue to refuse to pay the fines with which they have been issued.

[Lord Stewart of Dirleton (Con)]

The noble Lord asks a series of questions. If I may, I will revert to him on a couple of them. He asked about further enforcement steps by the Government; enforcement is in the hands of another arm’s-length body, the ACRO Criminal Records Office, so it is not a matter directly for the Government. He asked a very important question about whether people will receive criminal records for non-payment. Because the regulations were not marked as recordable, this will generally not be the case. In cases where people were brought on a complaint which specified an offence under these regulations and another offence which is recordable, the Covid offence may be recorded.

[Baroness Altmann (Con)]

My Lords, does my noble friend agree that it is important to uphold the rule of law? Many colleagues across the House will know that I disagreed fundamentally with the extent of the lockdowns and the extent to which they were prolonged—I would have preferred Sweden’s approach—but, given that it is the law and that we need trust in policing, the idea that someone who has broken the law at the time should suddenly be pardoned when others have paid the fine strikes me as strange. If the problem is in the courts, what other crimes will we turn a blind eye to just because the courts are overloaded?

[Lord Stewart of Dirleton (Con)]

My Lords, I respectfully agree with my noble friend. In any event, it is not within the power of the Home Office to grant an amnesty, as I said earlier. The funds ingathered from Covid are being returned to local authorities or the Government of Wales—the areas from which they were gathered—and applied to other purposes.

[Lord Foulkes of Cumnock (Lab Co-op)]

My Lords, the figure of 119,000 was mentioned in relation to England and Wales. Can the Minister give us the equivalent number for Scotland? It would be interesting to compare Darlington and Cannock with Dirleton and Cumnock, to take two random places, and see whether people in one are more law-abiding than those in the other, or whether the police are more diligent in one than the other.

[Lord Stewart of Dirleton (Con)]

I agree with the noble Lord that that question is important and may yield interesting answers. I regret that the facts in relation to Dirleton and Cumnock do not fall within the ambit of the Home Office. He gestures to me; I will indeed write to him on the topic.

Prison Officers: Occupational Pension

Lord Stewart of Dirleton Excerpts

Thursday 16th June 2022 Lords Chamber

[Earl Attlee]

To ask Her Majesty’s Government until what age a newly recruited prison officer must stay in post before they are able to claim their full occupational pension.

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

My Lords, a newly recruited prison officer may draw the full occupational pension on reaching state pension age, which is between 65 and 68, depending on their date of birth, and must have had at least two years’ membership within the scheme to be entitled to receive a pension.

[Earl Attlee (Con)]

My Lords, I am 65. In my time, I have undertaken military operations overseas and international aid operations overseas, but I am no longer fit or strong enough to do so—nor could I undertake the duties of a prison officer, including exercising control and restraint over prisoners. Does the Minister think it morally right to ask a prison officer to serve until he is 68 years of age?

[Lord Stewart of Dirleton (Con)]

My Lords, while the Government acknowledge the challenging environment in which prison officers work, we consider that, by comparison with emergency services such as the police or fire brigade, while the environment is a challenging one, it is to an extent controlled, which those other occupations are not. In that context, we consider that 68 is indeed an appropriate age at which to retire.

[Lord Thomas of Gresford (LD)]

The Minister referred to challenging conditions in prison. Would he accept that it is a violent environment? Are prison officers who are sick or injured by assault, or who—very importantly—fail the fitness test, entitled to their full retirement pension between the ages of 60 or 68, or is it diminished because they have not reached the retirement age?

[Lord Stewart of Dirleton (Con)]

My Lords, the noble Lord and I share a background in the criminal justice system, and I am as aware as he is of the potential for violence to be inflicted on prison officers pursuing their duties. When a prison officer is no longer fit to undertake operational duties, and the operational health practitioner confirms that ill-health retirement is appropriate, the officer would be retired due to ill health and may receive in full the pension benefits due to them, calculated up to the last day of service. I acknowledge with gratitude that the noble Lord alerted me to his question in advance, so I was able to seek further background from officials. If there is other material on which he would like me to expand, I can of course speak to him in person, or I can write.

[Lord Woodley (Lab)]

My Lords, prison officers get unfair bad press, and they are undoubtedly badly treated by this Government. There is poor pay and a pension age of 68, as has just been said, all while working in often ultraviolent workplaces. Additionally, the Government cynically exploit those emergency front-line workers by depriving them of the most fundamental employment right of all: the right to strike. Second-rate treatment on pay, pensions and the right to strike is immoral and cannot possibly be justified. Can the Minister explain why prison officers in Scotland, who have the right to strike, are legally allowed to withdraw their labour, while those south of the border are not?

[Lord Stewart of Dirleton (Con)]

My Lords, in relation to the final matter that the noble Lord raises, in spite of my Scottish background, I regret to say that I am not at this stage able to answer his question directly. However, with his leave I shall look into the divergence between Scotland and England and Wales and revert to him in writing.

[Lord Bird (CB)]

Does the Minister agree that one of the reasons why prisons have become so dangerous over the years is that we warehouse people? We do not rehabilitate them: people go in bad and often come out worse. Actually, if we want to quieten the damage and the violence, we need to return to rehabilitation. I speak as someone who was blessed by rehabilitation: it was an essential part of the Prison Service, which it is not now.

[Lord Stewart of Dirleton (Con)]

My Lords, I beg to differ. The importance of rehabilitation is known. Indeed, as we are on the topic of retirement of prison officers, one of the things that prison officers can do under legacy schemes is retire from the Prison Service, take their pension and go back in at occupational support grades. In that capacity, they can do a number of functions, including working in approved premises, which is the new name for bail hostels. There, their invaluable experience can assist people released into the community under conditions to meet those conditions and attune themselves to a less regulated environment outwith the prison estate. Their service in that regard is valued immensely by the Government and by prison governors.

[Lord Suri (Con)]

My Lords, I note that I was a member of the board of visitors at HM Prison Pentonville. Why have the Government not placed UK prison officers in line with front-line emergency workers in the police and the fire brigade who can retire at the age of 60 and claim their full occupational pension, instead of having to reach 68 years of age?

[Lord Stewart of Dirleton (Con)]

My Lords, I am sure the House will join me in acknowledging my noble friend’s service as a prison visitor. Although it is the case that police and fire service schemes have a lower retirement age of 60, employees in those professions contribute significantly more of their salary to their pensions—12% for police officers and 14% for firefighters —whereas prison officers pay only 5.4% of their income into their pension schemes. That is significant, because it is that level of contribution which allows actuarial assessment of the impact of retirement of officers.

[Baroness Smith of Basildon (Lab)]

My Lords, the safety and security of prison officers and prisoners is clearly essential if prisons are to be effective, including, as the noble Lord, Lord Bird, pointed out, in terms of rehabilitation. We are losing experienced prison officers, yet the Government’s response, that prison officers work later than many other services, until they are 68, is not the way to address this. I do not think the Minister answered the Question of the noble Earl, Lord Attlee, which was very specific: until what age must a newly recruited prison officer stay in post before they are able to claim their full occupational pension? In effect, how many years must a prison officer be in post to receive their full pension? It is quite clear for the fire service and for the police, but we have not had that information for the Prison Service. Can he provide it?

[Lord Stewart of Dirleton (Con)]

My Lords, it is two years.

[Baroness Smith of Basildon (Lab)]

For the full pension?

[Lord Stewart of Dirleton (Con)]

A prison officer can retire at an age between 65 and 68. That is now in line, according to the alpha scheme under which prison pensions are paid. A person on the scheme must have had at least two years’ membership within the scheme to be able to receive a pension.

[Baroness Fookes (Con)]

My Lords, when answering a previous question, my noble friend said that somebody retired early on grounds of ill health may receive the full pension. There is a degree of difference between “may” and “must”, so what will be the conditions?

[Lord Stewart of Dirleton (Con)]

My Lords, it is dependent on the assessment carried out by occupational health as to the person’s capacity.

[Baroness Smith of Basildon (Lab)]

My Lords, I am sorry to come back to the Minister but I asked him specifically about the full pension and he has answered only for “a pension”. There is a difference between receiving a pension, which will be a reduced pension, and a full pension. Will he tell me, if he has the answer, how long it is for a full pension? If he does not, will he write to me and place a copy of the letter in the Library?

--- Later in debate ---

[Lord Stewart of Dirleton (Con)]

I am grateful to the noble Baroness for her clarification of the point, which perhaps was obvious to your Lordships at the outset. As I understand it, it will be a matter of occupational health assessment. I will clarify that position and write to the noble Baroness, as she requests.

[Lord Davies of Brixton (Lab)]

My Lords, this change, this diminution of the pension rights of prison officers, was one of the impacts of the Hutton review, which affected all public service employees in different ways—including significant cutbacks. Recently, the Pensions Minister suggested that the Government were seeking to make public service pensions even worse. This may have been freelancing on behalf of the Pensions Minister, and maybe this is outside the noble Lord’s brief, but was this a serious proposition? When will the Government make it plain what their policy is in relation to public service pensions?

[Lord Stewart of Dirleton (Con)]

My Lords, the noble Lord anticipated that this would lie outwith my brief. I regret to say that I am not in possession of the terms of the statement to which the noble Lord referred by the Prisons Minister in the other place—

[Lord Davies of Brixton (Lab)]

The Pensions Minister.

[Lord Stewart of Dirleton (Con)]

The Pensions Minister —in that case, my information is even further away from what the noble Lord asked, so I will, with his leave, have to revert to him on that point in writing.

Northern Ireland Protocol: First Treasury Counsel

Lord Stewart of Dirleton Excerpts

Thursday 9th June 2022 Lords Chamber

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

My Lords, with the leave of the House, I shall now repeat in the form of a Statement the Answer given by my right honourable friend the Minister for the Cabinet Office to an Urgent Question in another place on the Northern Ireland protocol. The Statement is as follows:

“As the Foreign Secretary set out to the House on 17 May, to respond to the very grave and serious situation in Northern Ireland, the Government intend to bring forward legislation to fix the Northern Ireland protocol. As she also set out, the Government’s view is that such a course would be lawful in international law. In line with long-standing convention, we do not set out details of the internal deliberations regarding that view. But we will be setting out further detail about the Government’s legal position in due course.”

--- Later in debate ---

[Lord Stewart of Dirleton (Con)]

My Lords, I am grateful to the noble Baroness for stating at the outset that she is aware of the terms of the convention. We do not discuss legal advice, but we have set out clearly the Government’s view that this would be lawful in international law. To go further I fear would risk trenching upon that convention. In relation to the specific question about the reading room, I shall consult with colleagues to see whether or not that position will be returned to in relation to this Bill.

[Lord Purvis of Tweed (LD)]

My Lords, if the noble and learned Lord had been in the previous debate, he would have heard of the serious concerns about our reputation around the world on this issue. He is also aware that his predecessor, in his letter of resignation, said that he was unable to reconcile his role as a law officer with the Prime Minister’s policy objectives. He said:

“I have endeavoured to identify a respectable argument”


on the basis of international law. We do not want “respectable arguments”; we want our reputation to be held in the world and we want law to be honoured. On the basis of the noble and learned Lord giving factual information about which he can say, have any MPs been given a draft text of the Bill to be consulted on?

[Lord Stewart of Dirleton (Con)]

I am not aware of that, but I would say that the Government abide by the convention that legal advice given to the Government is not disclosed, so I would be surprised if that had taken place.

[Lord Hannay of Chiswick (CB)]

My Lords, the Minister has stated the convention about not providing the advice the Government receives on legal matters. That is interesting, but it happens to be exactly contrary to what was said. Perhaps if he looks at Hansard he will see that, when this matter was debated shortly before the Recess, the Government spokesman said quite categorically that the Government would be bringing forward a separate document setting out the basis for the legal case. He has just contradicted that.

I have a second question. Could the Minister, perhaps just now, cite word by word any part of the Northern Ireland protocol that authorises either party to it, the European Union or the United Kingdom, to unilaterally depart from its terms. Could he please cite that?

[Lord Stewart of Dirleton (Con)]

My Lords, the terms of the protocol specifically anticipate that it will change in line with developments. I refer the noble Lord to Articles 13(8) and 16 in that regard.

[Lord Cormack (Con)]

My Lords, one of the themes of the debate we have just had was that if we are to be looked upon as a moral leader in the world, it is completely wrong to abrogate treaties that we have signed, particularly when the same Government who signed, negotiated and commended the treaty to both Houses then wish to abrogate it. Is my noble and learned friend aware that there is deep disquiet among many Conservatives in both Houses at what is being proposed?

--- Later in debate ---

[Lord Stewart of Dirleton (Con)]

My Lords, to rehearse the answer I gave to the previous question, the protocol itself comprehends the possibility of its amendment, depending on circumstances as they arise.

[Baroness Ritchie of Downpatrick (Lab)]

My Lords, there is deep disquiet in Northern Ireland about undermining the very institutions of the Good Friday agreement. I come from a different position from that of the DUP, but I have to say that a majority of people in the Northern Ireland Assembly want the protocol to remain, with mitigations. What exact consultations took place between the Prime Minister and the First Treasury Counsel in relation to this new legislation, which is considered a breach of international law?

[Lord Stewart of Dirleton (Con)]

My Lords, first, the Government’s intention is to protect the operation of the protocol. As the noble Baroness is aware, the Northern Ireland Executive has not been re-formed. It will not be re-formed in the face of such disquiet as currently exists. The Government intend that the protocol should be protected by the measures that they will bring forward, and they will bring forward simultaneously a statement of their legal position.

[Lord Campbell of Pittenweem (LD)]

My Lords, I was present on the occasion to which the noble Lord, Lord Hannay, referred, and I expressed an interest in the opinion apparently provided by the Attorney-General to the Government. We were assured that that opinion, or something similar, would be made available. If the noble and learned Lord checks Hansard, he will find that to be the case. But we should not really be surprised, because this is a Government of recidivists. They are very happy to offer the alternative of breaching the law. Indeed, they set out to do so in the internal markets Bill but had to retreat with their tail between their legs. The noble and learned Lord, like me, was reared in the Scottish legal tradition. He will remember his Roman law: pacta sunt servanda—promises ought to be kept. Why are the Government departing from this fundamental principle?

[Lord Stewart of Dirleton (Con)]

My Lords, pacts are indeed there to be kept: pacta sunt servanda. The Government are not departing from a legal principle; they are acting in good faith to preserve the protocol for the benefit of all communities within Northern Ireland.

[Viscount Waverley (CB)]

My Lords, is the Minister aware that senior representatives of Sinn Féin were recently in this building, setting out their vision? At the very least, they put a case that I felt the Government should respond to—will the Minister care to do so now?

[Lord Stewart of Dirleton (Con)]

Not being privy to what was said, I regret that I cannot.

[Lord Liddle (Lab)]

First, will the Minister consult the noble and learned Lord, Lord Keen of Elie, on his opinion of the legality of what the Government are now proposing? I really recommend that he does so. Secondly, does the Minister not see that there is a clear distinction between changing the protocol under its terms and Britain legislating independently to breach an international treaty?

[Lord Stewart of Dirleton (Con)]

My Lords, once again, the Government are confident in their position that what they propose will not breach international law

[Baroness Altmann (Con)]

My Lords, I sympathise with my noble and learned friend the Minister, but I echo the concerns raised by my noble friend Lord Cormack and will ask a brief question. When the Prime Minister insisted that there would not need to be any checks between Northern Ireland and the rest of Great Britain on goods entering Northern Ireland, where did he expect those checks to take place?

[Lord Stewart of Dirleton (Con)]

My Lords, the intention of the Government is to restore the situation envisaged at the framing of the protocol whereby equal importance was given to east-west and to north-south transactions.

[Baroness Ludford (LD)]

My Lords, the Minister referred to the absence of the Executive. It was expected that the publication of the Bill would be an incentive to create the Executive, but I understand it is being reported that the DUP has said that the publication of the Bill will not make any difference; it wants to see it implemented. How many steps have to be taken?

[Lord Stewart of Dirleton (Con)]

My Lords, we are in contact with all shades of opinion in Northern Ireland, trying to move forward the position whereby the institutions of devolved government can be restored and the process of normalising relations between communities and between the United Kingdom and its international partners can proceed.

Probation and Court Services: Workload

Lord Stewart of Dirleton Excerpts

Thursday 9th June 2022 Lords Chamber

[Baroness Blower]

To ask Her Majesty’s Government what recent estimate they have made of the workload levels in (1) the Probation Services, and (2) the Children and Family Court Advisory and Support Services.

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

My Lords, as of March 2022, 96% of probation officers and National Probation Service officers held fewer than 50 cases, with an average case load of 34. The average case load for the 4% who hold more than 50 cases is 59. The number of open active children’s cases within Cafcass in May 2022 was 34,834. This has reduced from 38,178 in April 2021 but still represents an increase of 15.1% on pre-pandemic levels.

[Baroness Blower (Lab)]

I will be very interested to discuss those figures with the Minister as I do not entirely recognise them. However, recent MoJ figures show that some regions, including London, are understaffed by hundreds of permanent posts, costing the taxpayer £23 million in agency cover fees. Record high numbers are leaving the probation service due to poor pay and excessive workloads, often of 110% of their requirement. Does the Minister accept that poor pay for probation staff is a false economy?

[Lord Stewart of Dirleton (Con)]

My Lords, the position in relation to the National Probation Service is that a new model of working is being introduced which necessarily is causing some strain in the service. However, the Government consider that this new approach is necessary and will repay the short-term hurt which its introduction is causing. The Government and the National Probation Service are committed to maintaining levels of staff in this exceptionally important field.

[Lord Thomas of Gresford (LD)]

Cafcass is concerned with representing the interests of children in court. In the report assessing the risk of harm to children and parents in private law children’s cases, published by the Ministry of Justice in June 2020, the expert panel recommended that the MoJ should commission

“an independent, systematic, retrospective research study on the implementation”

of the current law and practice

“in cases where allegations of domestic abuse, child sexual abuse or other serious offences are raised.”

Has that study been commissioned and, if so, what point has it reached?

[Lord Stewart of Dirleton (Con)]

My Lords, I undertake to write to the noble Lord in relation to that study. I do not have information to hand on its progress but if I may pray the noble Lord’s patience, I will communicate with him in due course.

[Lord Jones (Lab)]

Does the Minister acknowledge that any magistrate would tell him that the family court is central to the work of the Bench? Does he know that family courts in particular care about, help and consider the predicament of children from homes that are underprivileged, time and again? How many family courts are there? What does his department do to encourage and train those who make up the family court, and can he say how many magistrates’ courts his Government have closed in the last few years?

[Lord Stewart of Dirleton (Con)]

My Lords, once again I do not have the specific numerical answers to the noble Lord’s question, but I agree with everything that he said in his prefatory remarks about the importance of this field. I assure him that the Government are aware of that. Cafcass is an independent arm’s-length body which none the less works within the Civil Service funding structure. The Government have authorised uplifts over budget during the past two years to fund this work, the importance of which the noble Lord and I agree upon, and to lay some stress on the work that Cafcass carries out. With his indulgence, again, I will write to him in relation to the specific number questions that he poses.

[Baroness Pitkeathley (Lab)]

My Lords, I declare an interest as a former chair of Cafcass. Does the Minister agree that the difficulties of staffing for these services are a reflection of the whole social work profession, with low morale and very great difficulties of recruitment and retention because of poor pay and poor support over a great many years?

[Lord Stewart of Dirleton (Con)]

My Lords, one of the difficulties in relation to retention of staff in this body is a pay structure which means that the pay of Cafcass staff, tied as it is to Civil Service staffing models, can be less than what is available to professional people working for other agencies, such as in local government. In those circumstances, the Government are in regular contact with Cafcass officials and senior management and are satisfied that they are conscious of the great problems to which the noble Baroness alludes in her question. As to the retention and recruitment of staff, the Government are working with Cafcass to seek to maintain and, indeed, improve levels of staffing in this important area.

[Lord Moylan (Con)]

My Lords, in view of the continuing scandal of prisoners held on indefinite sentences for public protection, is my noble and learned friend satisfied that the training provided to probation officers for dealing with IPP prisoners has met the aspirations set in the 2019 IPP action plan?

[Lord Stewart of Dirleton (Con)]

My Lords, I regret that once again I do not have the specific data in relation to the IPP plan to which my noble friend Lord Moylan refers. Once again, with his patience and that of the House, I will write to him on the topic.

[Lord Woolf (CB)]

Do the figures that the House has been given by the Minister reflect the view of the Lord Chancellor that the approach to probation should include responsibility for giving the views of victims of crime after a person has been convicted?

[Lord Stewart of Dirleton (Con)]

My Lords, disclosure of and taking into account the views of persons who are connected with or are directly victims of crimes is not a matter which bears directly upon the responsibilities of the probation service, but I assure the noble and learned Lord that the views of the Lord Chancellor in relation to the importance of this are being taken into account.

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, I want to ask about unpaid work as part of a community sentence. There is a huge backlog. For example, in January the east Midlands probation service had in excess of 100,000 hours of unpaid work which had not been delivered, and a low number of offenders actually complete their unpaid work. This undermines the sentence itself as well as victims’ faith in the justice system. What can the Minister say about the staffing levels necessary to administer unpaid work? Does he believe that this backlog can be reduced by any sensible proportion in the next year or so?

[Lord Stewart of Dirleton (Con)]

My Lords, training for probation staff to equip them with the necessary knowledge and information to be able to superintend unpaid work in the community, as with every aspect of their work, is invaluable. The Government have met their target to recruit 1,000 officers holding professional qualifications in probation for the financial year 2020-21 and 1,500 officers for the financial year 2021-22.

As for the noble Lord’s point about recognition of the importance of such work and how to ensure it is addressed, the Government recognise the importance of unpaid work in the community as an aspect of the sentence, note the backlog and the complex background against which that backlog has arisen—specifically the problems in relation to offender management caused by the pandemic—and are resolving them as quickly as possible.

Social Welfare Law Cases: Legal Aid

Lord Stewart of Dirleton Excerpts

Monday 16th May 2022 Lords Chamber

[Lord Bach]

To ask Her Majesty’s Government what further steps they are taking to restore legal aid funding in the area of social welfare law.

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

My Lords, we are piloting the provision of early legal advice for debt, housing and welfare benefit matters. We will introduce legislation later this year to ensure better access to social welfare advice for people facing possession proceedings. We have reviewed the means test for legal aid and are currently consulting on plans to increase access to legal aid to an additional 2 million people for civil legal aid.

[Lord Bach (Lab)]

My Lords, I thank the Minister for his Answer. I acknowledge the work done in this field by the noble Lord, Lord Wolfson. Frankly, though, two small pilots over a two-year period hardly begin to tackle the scandal that a large number of our fellow citizens cannot get the legal advice that they need and are entitled to. The number of new cases that were helped last year was one-quarter of those helped in the year 2012-13, just before the ghastly LASPO Act came into effect—all that at a time of increasing living costs and families finding it difficult or impossible to cope. Does the Minister agree that much more must be done now to tackle this gross injustice that shames our country and goes to the very heart of access to justice?

[Lord Stewart of Dirleton (Con)]

My Lords, the noble Lord has acknowledged the work done by my noble friend Lord Wolfson of Tredegar. I in turn acknowledge his work in this important field, as part of the Bach commission, which he chairs. In relation to the matter of the priorities now, the Government consider it important that steps in this area be taken on the basis of the most robust data possible, which is why we are proceeding on the basis of pilot schemes that will in-gather the necessary data upon which we can base further actions.

[Lord Anderson of Swansea (Lab)]

My Lords, is it not scandalous that at a time when our newspapers are full of the vast expenditure of footballers’ wives on libel proceedings ordinary people are still denied justice in those areas which most impact on the lives of the less prosperous and the less privileged? What the Government have announced goes at least some way to help but, looking at that contrast, it really is scandalous.

[Lord Stewart of Dirleton (Con)]

My Lords, a fundamental principle of our courts is that they are open to all. If people choose to spend their money in a particular way, then the courts permit them to do that, but the Government spend on average £1.7 billion on legal aid. That is a figure which we have under review and are constantly working on it. We acknowledge the importance of this area.

[Lord Kennedy of Southwark (Lab Co-op)]

My Lords, the pilot scheme put forward by the Government seeks to quantify the benefits to individuals, their support networks, the Government and, ultimately, the taxpayer. Those seem very sensible aims and I support them. But how is this to be achieved and taken forward, with the access that the noble Lord referred to in his first Answer, when the number of providers of these services has been reduced by a third and in some areas we have a complete desert of providers?

[Lord Stewart of Dirleton (Con)]

The noble Lord makes an important point. We understand that there are areas where there are no providers, but perhaps I may offer him this assurance: the Legal Aid Agency keeps the matter under constant review and looks to engage with new providers where there are none. No part of England or Wales is without access to legal advice, because of the existence of a national telephone helpline, which can be drawn upon by people who require to access legal aid and assistance who would not otherwise have that available to them.

Judicial Review and Courts Bill

Lord Stewart of Dirleton Excerpts

Consideration of Commons amendments
Wednesday 27th April 2022 Lords Chamber

Moved by

[Lord Stewart of Dirleton]

That this House do not insist on its Amendments 1, 2 and 3, to which the Commons have disagreed for their Reasons 1A, 2A and 3A.

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

My Lords, with the leave of the House, in moving Motion A, I will also speak to Motions B and C. A number of changes were made to this Bill in the House of Commons. I will cover both those changes and the amendments tabled to the Bill today.

Turning first to the Motions on judicial review, the Government have listened to the varied concerns, and the Bill that returns to us puts forward a compromise. The presumption, which was the issue of most concern to your Lordships, is gone, making use of the new remedies entirely discretionary. However, the other changes that your Lordships made to the JR measures, such as removing the ability to limit the retrospective effect of quashing orders and addressing the judgment in the Eba and Cart cases, have been undone in the other place. I will therefore set out again the Government’s reasoning for these measures.

Starting with prospective-only quashing, the aim of Clause 1 is to provide courts with flexibility in remedies, allowing them to respond effectively to the case before them. Conventional retrospective quashing can be a blunt tool, which sometimes does not allow complex circumstances adequately to be addressed in a remedy. My noble friend Lord Wolfson of Tredegar and others have already set out persuasively circumstances where limiting or removing the retrospective effect of a quashing order would be in the interests of justice. The counter-arguments, I submit, have not really disputed this, but rather raised hypothetical circumstances where such a remedy would likely be inappropriate.

My view is that we should trust our courts to determine when these powers should and should not be used, with help from the skilled advocates who appear before them, who will no doubt address remedies when they make submissions. That there are circumstances where they would not be appropriate is an argument against this power only if you do not trust courts to use it properly.

We have substantial evidence that judges can and do use these remedies to good effect. Canada, another common-law jurisdiction, has made use of these remedies for decades. There, a court will use such a remedy if its ruling involves a substantial change in the law and if issuing a suspended or prospective order will not be unfair to the plaintiffs. Canadian jurisprudence shows a nuanced approach where fairness and harm are consistently considered alongside other factors, such as the proper remit of the court and separation of powers. For example, in the Canadian Supreme Court case of Hislop, the court said:

“The key question becomes the nature and effect of the legal change at issue in order to determine whether a prospective remedy is appropriate. The legitimacy of its use turns on the answer to this question.”


After considering various factors, it went on to say:

“They may include reasonable or in good faith reliance by governments … or the fairness of the limitation of the retroactivity of the remedy to the litigants.”


Finally, the court considered the effects on others, aside from the litigants, drawing on an earlier judgment in the case of Kingstreet Investments Ltd. v New Brunswick in which the court held that taxes collected pursuant to an ultra vires regulation are recoverable by the taxpayer. A similar question was raised by the noble Lord, Lord Marks, at an earlier stage of this Bill. The Supreme Court of Canada’s view was expressed trenchantly:

“Where the government has collected taxes in violation of the Constitution, there can be only one possible remedy: restitution to the taxpayer.”

--- Later in debate ---

We therefore have an opportunity here today to press home the view which this House took on Report with a handsome majority, to ask the Government to think again and to put in place a review of the funding for these families so that there can be a sense of fairness in coroners’ courts, where many people feel they are not getting a fair hearing or a fair crack of the whip.

[Lord Stewart of Dirleton (Con)]

My Lords, I have listened to submissions from your Lordships in the course of this short debate at the ping-pong stage. I think the House and those who spoke were united in the warm words for my noble friend Lord Wolfson of Tredegar, who is indeed, as your Lordships said, a grievous loss to the Front Bench. That loss is offset only by his arrival on the Back Benches, where I am sure he will contribute his wisdom, his ready wit and his good sense to our debates going forward. As to the matter of car parking at the chambers of the noble Lord, Lord Pannick, and those of my noble and learned friend Lord Garnier, I regret that that matter lies outwith the power of the Government to seek to resolve.

On the point just taken from the Opposition Front Bench by the noble Lord, Lord Ponsonby, I reiterate my point. I accept all that he said about the impact of inquest proceedings on families and the well-expressed and carefully considered arguments advanced by family groups and pressure groups, and in this House and in the other place. However, I return to the central point, which is that in light of the review procedure put forward by the Government—a review published on 15 March that is to be followed by a full consultation, after which the Government hope to publish a consultation response in autumn 2022—I urge the House to take the view that the amendment the noble Lord proposed from the Front Bench is premature.

On the point taken by the noble Lord, Lord Marks, I am happy to reiterate what I said about the nature of the ouster clause in these proceedings, in the manner in which it has been formulated, in the hope that what I have said from the Dispatch Box indicates that the Government treat this as a particularly focused instrument.

I am grateful to the noble and learned Lord, Lord Brown of Eaton-under-Heywood, speaking as he does with particular knowledge of these matters, having sat in the Cart hearing itself. I accept and adopt respectfully his confidence in the ability of our judiciary properly to use the tool in the judicial toolbox—the club in the judicial golf bag—which the Bill seeks to give.

In those circumstances, I return to my invitation to the House to accept the Bill as received from the Commons. I express my gratitude to all noble Lords who have contributed today, who have courteously and thoughtfully engaged with me and, for that matter, the Minister in the other place. On behalf of my noble friend Lord Wolfson of Tredegar, who of course carried out the bulk of work on this measure, I thank noble Lords for their thoughtful engagement with him, in the course of his stewardship of the Bill in your Lordships’ House.

[Lord Mackay of Clashfern (Con)]

My Lords, I would like to say something about the proposal in relation to the coroners’ court. The problem in the coroners’ court is that well-heeled litigants are allowed to participate in the coroners’ inquest when the people with real interest, namely the relatives of the deceased whose death is being inquired into, are not able to afford any protection at all. The well-heeled litigants are able to use litigation experts—counsel, senior counsel maybe—and leave the relatives of the deceased without anything at all in the way of legal assistance.

This point arose in this House in connection with the Liverpool situation some years ago. The suggestion was that these well-heeled people should not be allowed to participate in the inquest, unless they were prepared to make available to the relatives legal advice and help to exactly the same limit that the well-heeled people were proposing. That applies to those well heeled by the taxpayer, and applies to those who are well heeled in other ways. It is much more general than legal aid.

Therefore, it seems to me that the inquiry that the Government are proposing would be well added to by taking account of this possibility, which we certainly advocated here. I think I am right in saying that my noble friend Lord Hailsham was also involved on that occasion. At that time, it seemed to be a Home Office responsibility, because it was the Home Office that was responding to the report from Liverpool. It was said that we would get an answer to this very obvious way of dealing with this and making it fair in due course. “Due course” is a very flexible expression. I would think it highly likely that it should be involved in this inquiry. Just restricting it to legal aid seems to make it impossible to really get adequate representation. It is much better that the representation should be equal and level on both sides.

Of course, in some of these inquests, there may be more than one well-heeled participant. Therefore, it should be made a condition of them being allowed to participate, if it is joint and several or if it is just one, that they are prepared to make resources available to the relatives of an equal standard to the resources that they wish to use. That seems abundantly fair; it is not a charge on a public interest or the public purse, except in the case where the well-heeled people are supported by the taxpayer. The taxpayer will have to pay what they seek to put out for their lawyers. I cannot see why dividing this between themselves and the other parties is not a fair way of dealing with it. It does not in any way increase the responsibility of the public purse.

--- Later in debate ---

Moved by

[Lord Stewart of Dirleton]

That this House do not insist on its Amendment 5, and do agree with the Commons in their Amendment 5A to the words restored to the Bill by the Commons’ disagreement to Lords Amendment 5.

5A: Page 4, line 2, leave out “passed without” and insert “the Bill for which would not require”

[Lord Stewart of Dirleton (Con)]

My Lords, I have already spoken to Motion B. I beg to move.

Motion B agreed.

Motion C

Moved by

[Lord Stewart of Dirleton]

That this House do not insist on its Amendment 11, to which the Commons have disagreed for their Reason 11A.

11A: Because it would involve a charge on public funds, and the Commons do not offer any further Reason, trusting that this reason may be deemed sufficient.

[Lord Stewart of Dirleton (Con)]

My Lords, I have already spoken to Motion C. I beg to move.

Motion C1 (as an amendment to Motion C)

Moved by

Coronavirus Act 2020 (Delay in Expiry: Inquests, Courts and Tribunals, and Statutory Sick Pay) (England and Wales and Northern Ireland) Regulations 2022

Lord Stewart of Dirleton Excerpts

Tuesday 26th April 2022 Lords Chamber

Moved by

[Lord Stewart of Dirleton]

That the Regulations laid before the House on 23 March be approved. Considered in Grand Committee on 25 April.

Motion agreed.

Coronavirus Act 2020 (Delay in Expiry: Inquests, Courts and Tribunals, and Statutory Sick Pay) (England and Wales and Northern Ireland) Regulations 2022

Lord Stewart of Dirleton Excerpts

Monday 25th April 2022 Grand Committee

Moved by

[Lord Stewart of Dirleton]

That the Grand Committee do consider the Coronavirus Act 2020 (Delay in Expiry: Inquests, Courts and Tribunals, and Statutory Sick Pay) (England and Wales and Northern Ireland) Regulations 2022.

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

My Lords, last month, 25 March marked two years since the Coronavirus Act gained Royal Assent. This Act gave us the necessary powers to tackle the direct health impacts of the Covid-19 virus, support individuals, businesses and the economy, and maintain our critical public services during the pandemic. When the Act was introduced, this House and the other place agreed for the temporary provisions within it to have a two-year lifespan. The Government have always been clear that these provisions would remain in place only as long as they are necessary and proportionate to respond to the pandemic. Thanks to the progress made in the fight against the virus, the Government have been able to repeal the vast majority of the temporary non-devolved provisions in this Act. There are now only five temporary non-devolved provisions remaining in force, which are extended by the regulations before us today.

Four of these provisions, at Sections 30, 53, 54 and 55 of the Act, relate to the justice system. They have allowed the system to continue to function throughout the pandemic, enabling the courts to deal promptly and safely with proceedings, and to avoid unnecessary social contact and travel while upholding the principle of open justice. They are now proving vital in our efforts to support court recovery. These temporary measures are so important to court recovery that we intend to replace them with permanent legislation, but we cannot afford any gap in provision while we wait for that legislation to complete its passage through Parliament, albeit some of it is comparatively well-advanced.

Section 30 removes the obligations for coroners to hold inquests with a jury where Covid-19 is the suspected cause of death. An equivalent measure is included in the Judicial Review and Courts Bill, which is expected to receive Royal Assent later this spring. The replacement measure has effect for two years and can be extended by regulations made by the Secretary of State. Neither Section 30 nor the new Judicial Review and Courts Bill prevents coroners from holding jury inquests in cases where they consider it appropriate. I think it is important to emphasise this element of discretion vesting in the coroner.

Sections 53, 54 and 55 enable participation in court and tribunal hearings to take place remotely by video or audio links. They also allow audio or video footage to be transmitted to remote observers and create new offences to prohibit the unauthorised recording or transmission of any live links sent from court. Essentially, it is an updating of the power inherent in the court already to regulate the behaviour of those observing its proceedings.

They are due to be replaced this summer with new provisions in the Police, Crime, Sentencing and Courts Bill, subject to parliamentary approval. In the meantime, it is vital that these measures remain in place so that our courts and tribunals can continue to hold virtual hearings in an open and transparent manner. These measures continue to be crucial in helping our courts and tribunals to work more quickly through the backlog of cases that has built up during the pandemic.

Currently, around 10,000 hearings each week take place using some form of remote technology. On 14 February, the Lord Chief Justice issued guidance on the circumstances and types of proceedings where it might continue to be appropriate for advocates to attend Crown Court hearings remotely under these provisions. This includes bail applications, ground rules hearings, custody time limit extensions, uncontested Proceeds of Crime Act hearings and those hearings which involve legal argument only. Conducting these types of hearings via audio and video links means that court-rooms can be reserved for hearings which require participants to attend in person, including trials and sentencing hearings.

Without Section 30, the backlogs in our coroners’ courts would be significantly larger, further increasing the demand on local authority-funded coroner services. Hundreds, possibly thousands of individuals, would have to serve on Covid-19 inquest juries and coroner services would have been overwhelmed by the logistics. If the courts are unable to continue to use these provisions, even for a few months, I submit that it will have a significant impact on our court recovery programme. It will mean that defendants are waiting longer than necessary for trial, more complainers are waiting longer than necessary for justice and the bereaved are waiting longer than necessary for inquests. Therefore, we cannot, I submit, allow these powers to lapse. A maximum six-month extension will enable a smooth transition and avoid any disruption to service before replacement primary legislation comes into force. The provisions we are discussing today will be repealed once this new primary legislation is in force.

I turn to address a provision at Section 43 which relates to statutory sick pay in Northern Ireland. Section 43 is extended by this statutory instrument for a period of six months. This enables statutory sick pay to be paid from day one in Northern Ireland for absences relating to Covid-19. While statutory sick pay is ordinarily a transferred matter in Northern Ireland, Section 43 confers on the Secretary of State the power to make regulations in respect of this provision. In this provision, the UK Government are facilitating the extension of Section 43 on the formal request of the Department for Communities in Northern Ireland.

I take the opportunity today on behalf of the Government to note an addendum in the 12th two-monthly report of the Act, which was published on 24 March. This addendum addresses omission of status updates for two temporary provisions in previous reports. These are Sections 42 and 43 that relate to statutory sick pay and extend to Northern Ireland only. On behalf of the Government, I apologise for this omission and welcome the opportunity to correct it. The addendum provides information about the status of these provisions over the course of the pandemic. I have made inquiry of the Bill team about the way in which this addendum is promulgated and I am told that it together with an accompanying apology is placed in prominent view in the report.

I reassure the Committee and the House in general on behalf of the Government that the reporting omission has not impacted the policy relating to these provisions. The addendum provides information about the status of these provisions over the course of the pandemic.

On behalf of the Government, I thank all front-line workers and those working in our courts, tribunals and coroner services for the sterling work they have done to keep the system running.

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, I thank the Minister for introducing this statutory instrument. It is fairly technical in the sense that it is a six-month extension of the current emergency provisions —starting from 25 March—to cover the coming into effect and Royal Assent for the two Bills which the Minister mentioned. In that spirit, we do not oppose this statutory instrument.

The Minister set out the importance of this emergency legislation in dealing with the situation we were in during the pandemic. I remind the Committee that I sit as a magistrate in the adult, youth and family jurisdictions, and have sat in a lot of these courts over that two-year period. I have been active in the two Bills the Minister mentioned, in trying to take the best of that experience and use it in continuing to work with an overburdened court system. I accept the points that he made that we are dealing with 10,000 hearings a week that have some form of remote technology in them and that we should do what we can to do hearings remotely, because it frees up court rooms to try to address the backlog.

Understandably, given the nature of this statutory instrument, the Minister did not address the BBC’s headline news today about the continuing and worsening backlogs for sexual offences. I was just looking up the statistics while waiting for this debate and the figures are getting worse: the average case length for sexual offences is 266 days—nine months waiting for suitable cases to come to court. This is getting worse, so I ask the Minister what the nature of the bottleneck is. Is it, as the criminal barristers are saying, that the number of criminal barristers has fallen over recent years? Is it because the number of judges’ sitting days has reduced? Or is it, as I have also heard, that there is a difficulty and a bottleneck in recruiting a sufficient number of judges to deal with these backlogs, that of sexual offences in particular? The Minister’s predecessor, the noble Lord, Lord Wolfson, made the point in previous debates that the lack of availability is not of courts as such but of appropriate judges. I would be interested to hear from the Minister whether that is still the case.

The Minister talked about Section 43 of the Coronavirus Act 2020 and statutory sick pay provision in Northern Ireland. I noted the correction that he highlighted, which I am happy to take as read; I do not want to go into that any further.

As I opened, we support this statutory instrument. It is a technical measure as provisions within other Bills come into place. Nevertheless, I think the Minister should say something about the seriously bad figures that were produced in BBC programmes and made headline news today.

[Lord Stewart of Dirleton (Con)]

My Lords, I am grateful to the noble Lord for his contribution and the spirit in which he framed his remarks, acknowledging the justification for this measure to extend the powers brought in under the peculiar and unique circumstances of Covid and the value that they had. As always with the noble Lord, he speaks from a position of expertise and experience of the value of such measures from his position as a magistrate—or, rather, his position as a magistrate informs his remarks.

The noble Lord posed a question on the figures. He sought an answer on the bottleneck and advanced a number of potential causes for it. I can tell the Committee something of the scale of the investment that the Government are making in the criminal justice system over the next three years. The sum of £477 million is to be invested in the system overall, which will allow us to reduce the Crown Court backlog to an estimated 53,000 by March 2025.

To provide additional capacity in the Crown Court, we are extending the sentencing powers in the magistrates’ courts from six to 12 months’ imprisonment for a single triable-either-way offence to allow more cases to be heard at that level in the magistrates’ court and drive down the backlog of cases over the coming years.

The figures we have indicate that these measures are already having a beneficial effect in that the case load in the Crown Court reduced from around 61,000 cases in June 2021 to around 58,500 at the end of February 2022. As a result, we expect to get through 20% more Crown Court cases this financial year than we did pre-Covid. The figures would be 117,000 in 2022-23, compared to 97,000 in 2019-20.

Humanist Marriages

Lord Stewart of Dirleton Excerpts

Monday 25th April 2022 Lords Chamber

[Baroness Burt of Solihull]

To ask Her Majesty’s Government, further to the Written Statement by the Parliamentary Under-Secretary of State for Justice on 15 March (HCWS682) and the Written Answer on 24 March (142529), why they have legislated to permit religious and civil marriage ceremonies to take place outdoors, but not similarly legislated for humanist marriages.

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

My Lords, legislating to allow outdoor civil weddings on existing approved premises was a long-standing commitment, accelerated to respond to the highly exceptional circumstances created by the Covid-19 pandemic. Following public consultation, this was made permanent in April. Humanists seek fundamental changes to marriage law, which requires more detailed consideration. The Law Commission is reviewing the matter and is due to report in July. The Government are awaiting the results of that consultation before deciding how to proceed.

[Baroness Burt of Solihull (LD)]

My Lords, it is very important to humanists that they marry in a place that is meaningful to them. Not only can Quakers, Jews, Church of England and Church of Wales couples have their own religious celebrant, they can marry wherever they want. In 2020 the High Court ruled that when the Law Commission has reported, the Government must carry out the High Court ruling to legally recognise humanist marriage. Can the Minister confirm that when the Government implement this ruling, humanists will join the groups able to marry in a location of their choice?

[Lord Stewart of Dirleton (Con)]

My Lords, at present in England and Wales, other groups—faith groups or secular people—cannot marry where they want: it is a matter of the venue, as opposed to the celebrant, and that, at present, restricts choice in that area. To establish where we go from here, we will, as I say, await the report of the Law Commission.

[Baroness Whitaker (Lab)]

My Lords, the judge in the High Court also ruled that

“the present law gives rise to … discrimination.”

For how much longer are the Government prepared to allow this apparent breach of the law without any guarantee that it will be resolved?

[Lord Stewart of Dirleton (Con)]

My Lords, the High Court in its decision found that the Government were entitled to proceed by way of clarifying the law as it relates to all bodies, religious, secular or otherwise; albeit that there was a measure of discrimination against humanists, the Government’s course was appropriate.

[Lord Pickles (Con)]

My Lords, obviously we anticipate the advice of the Law Commission, but ultimately this is going to be a political decision made by the Government. Given the importance of humanism, in terms of both western civilisation and the British character, it would make enormous sense to end this rather silly discrimination and give humanists the right to get married in a ceremony and location of their choice.

[Lord Stewart of Dirleton (Con)]

My Lords, I repeat the answer I gave to the previous question.

[Baroness Meacher (CB)]

My Lords, the Marriage (Same Sex Couples) Act 2013 made provision for the Government to introduce legal recognition of humanist marriages by statutory instrument—as Quakers and Jews already have, in fact, despite the Minister’s earlier answer. Later this year, I understand, the Government are likely to give legal recognition to outdoor religious marriages by changing primary legislation, a vastly more complex process. Will the Minister please meet me to discuss how this very simple objective can be achieved for humanist marriages without further delay, there already being nine years since the primary legislation was passed?

[Lord Stewart of Dirleton (Con)]

My Lords, I am perfectly happy to arrange that someone from the relevant department should meet the noble Baroness—as, indeed, my colleague in the other place, Tom Pursglove MP, the Parliamentary Under-Secretary of State for Justice, has met representatives from Humanists UK, and Crispin Blunt MP. That took place on 24 March.

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, the Liberal Democrats clearly support this change; the Labour Party supports this change; the Government in Wales support this change; the Government in Scotland support this change; and, as we have heard from the noble Lord, Lord Pickles, it is ultimately going to be a political decision, so why are the Government waiting for the Law Commission’s report?

[Lord Stewart of Dirleton (Con)]

Because, my Lords, the question of marriage is a complex one and the Government do not wish to act prematurely where to do so may be to the prejudice of one group at the expense of others.

[Baroness Featherstone]

My Lords, will the Government give an estimate of the timescale for reform after the Law Commission has reported favourably?

--- Later in debate ---

[Lord Stewart of Dirleton (Con)]

My Lords, that would again be premature until we see what the Law Commission recommends.

[Lord Desai (Non-Afl)]

My Lords, what is it about the humanists that obstructs the Government from doing them justice? Scotland allows it; Northern Ireland allows it; the Channel Islands allow it. What is it about the humanists that means they are discriminated against in England and Wales? It is because they are not Christians?

[Lord Stewart of Dirleton (Con)]

My Lords, precisely not. The situation is that in Scotland the rules of marriage are, as I said in an answer to another question, based on the identity of the celebrant. In England and Wales, they are based on the venue where the wedding ceremony is to take place. That is a complex matter that will take time to unpick; it is not a matter of prejudice against one group—and specifically not a matter of their not being Christians.

[Baroness Blackstone (Ind Lab)]

My Lords, nothing the Minister has said so far explains why humanists should be denied the right to a legal marriage while other religious groups have that right. Please could he explain to the House why that is the case?

[Lord Stewart of Dirleton (Con)]

My Lords, humanists advance a position as a belief system, as opposed to the simple negation of religious faith. We are advised that establishing a further category of wedding based on a belief system would be a profound change to the laws that bear on weddings. As a result, we are obliged to wait until the Law Commission has reported.

[Lord Cashman (Lab)]

My Lords, I refer to my registered interests and ask the Minister a simple question: does he believe that the lack of legally recognised humanist marriages is unfair and discriminatory? If he does not agree that it is unfair and discriminatory, why not?

[Lord Stewart of Dirleton (Con)]

My Lords, if the question is directed to the department that I represent from the Dispatch Box today, there is no question of consideration of a belief that any such discrimination is unfair. If it is directed to me, I decline to answer.

On the former point, as I said in answer to previous questions, there is an outstanding Law Commission report. There is a High Court decision which considered that the Government were correct and acting appropriately in awaiting the position from which a more fundamental reform could be properly considered.

[Baroness Hayter of Kentish Town (Lab)]

My Lords, I feel for the Minister: he is struggling and I think he would just like to be able to say yes. The Minister is talking about a profound change. It is not a profound change for those of us with different beliefs who take marriage very seriously and want to be able to have our humanist views expressed. This is not profound; this is a human right. How about—just as with Covid, when outdoor marriages were allowed on an interim basis—we do this on an interim basis and then we can sort out the details after the Law Commission reports?

[Lord Stewart of Dirleton (Con)]

My Lords, the Government consulted in 2014 on making provision for non-religious belief marriages, including a choice of location, using an order-making power. The consultation concluded that the matter raised a number of complex issues, including that by allowing humanists to solemnise marriages in unrestricted locations, the Government would create a provision for humanists that would not be available to all groups. Therefore, it was necessary to consider carefully the legal and technical requirements of marriage ceremonies before or at the same time as making a decision on whether to take forward the specific proposal to permit non-religious belief marriages. The loosening of restrictions on marriages taking place outdoors applied to venues within the existing provisions. Applying this to a humanist belief system could not be done within the existing framework; it would require innovation, which cannot be made.

[Lord Cormack (Con)]

My Lords, I speak as a Christian, but my noble and learned friend seems to be making a proverbial mountain out of a molehill here. Surely, if two people wish to commit themselves for life to each other and do not have religious beliefs, they ought to have the opportunity to do so in a solemn and seemly way.

[Lord Stewart of Dirleton (Con)]

My Lords, they do. My noble friend refers to the conduct of marriage in a solemn and seemly way. That is, of course, available outdoors, whether in a religious or civil setting. What is called for by reforming the law towards humanist weddings is a profound difference from that. Civil or religious marriages conducted indoors or outdoors can be as seemly as my noble friend wishes.