EU: Future Relationship

Lord Thomas of Cwmgiedd Excerpts

Wednesday 23rd September 2020 Grand Committee

[Lord Thomas of Cwmgiedd (CB) [V]]

My Lords, it is a privilege for me to follow the noble Earl, Lord Kinnoull, on whose committee I serve and which—before I joined it, I must hastily add—has done so much to clarify the position in relation to Northern Ireland and other aspects of the negotiation. I thank the Minister for his clear and courteous introduction to this debate.

So many of the points I would have wished to have made have already been made, but I shall take three as briefly as possible. First, on the inclusion of the devolved Governments, I do not believe it is too late, even at this 11th hour, for there to be more involvement of the devolved Governments in the formulation of the final strategy and in the final negotiations. What has happened in the past few days in relation to co-operation on Covid-19 has, without doubt, been beneficial to the whole of the UK. Why not do this in respect of the UK negotiations? It is a sad conclusion to say that what has happened to date is wholly inadequate—as the noble Baroness, Lady Hayter, so eloquently pointed out—judged, as people should be judged, by deeds rather than words.

Secondly, it is important to move forward in a way that produces a good long-term relationship while respecting the sovereignty of the United Kingdom. A positive future relationship with the European Union is, without doubt, in the interests of the UK and throughout the EU. I make one point regarding the development of the law. We live in a world that in my current day-to-day experience is, despite the effects of the pandemic, becoming more global than ever. Online meetings and discussion fora have driven globalisation, dialogue and interaction at a faster and more inclusive pace over the past six months, and I think it is inevitable over the next six months. It is so easy to contribute worldwide without having to travel and yet to make the points powerfully at meetings, conferences and negotiations. Moreover we have seen how data is ever more easily transmitted, which is driving and building an even more valuable market quite apart from progress in digitalisation. This means that the law must develop apace. To date, the UK has exercised a considerable degree of influence in the development of the laws that underpin trade, commerce, including trade in data, and other aspects of the digital economy and our financial and professional services. We are currently leaders, and this is hugely beneficial to the UK. From the new year, we will be on our own. In relative terms we must accept that we are a small-sized player, and in such circumstances our reputation and integrity will be central to our continued ability to punch above our size. Apart from integrity and reputation, we need close working relations in order to drive forward legal development. What matters is that we have in place a good structure for legal development and also regulatory co-operation, supervisory arrangements and the management of data, which are allied to it. The City’s suggestion of a memorandum of understanding is well made and entirely consistent with sovereignty, however you may wish to describe it. Relying on unilateral actions, such as the equivalence decisions, is not the way forward in our globalised world.

Our ability—and this is the third point that I wish to make—to move forward and build our position for the future must be done on good, sound legal foundations. It is a common experience for a lawyer that people disagree about the meaning of agreements, even those that may have been made only a short while before. I was not entirely surprised that there might be disagreements about the meaning of the Northern Ireland protocol or difficulties in working it through, but we agreed it. In such circumstances, what is expected is that the parties try to resolve their disagreements through provisions such as those in the protocol and the withdrawal agreement, and if they cannot resolve it by agreement, they do what litigants always do, and that is use the dispute resolution mechanisms. If a quicker decision were needed than through the mechanisms contemplated in the agreement, then modifications would be proposed. That regularly happens when a dispute arises that needs urgent resolution. I see no reason why the current dispute could not be resolved in a matter of a month or more. If the British Government believe that they are right, why not propose that?

Therefore, it is very difficult to understand why that obviously right course was not followed. However, what is entirely understandable is the resignation of the two expert leading government lawyers, Sir Jonathan Jones and the noble and learned Lord, Lord Keen, who carry the highest degree of respect in the profession and have so expertly advised and helped the Government throughout this period. In following what is required, you uphold the rule of law and you comply with the law. As the Civil Service Code reminds us, complying with the law is an essential aspect of integrity. What you do not do is deliberately break an agreement or threaten it. Many have spoken powerfully about that, and I need say no more about it or about the consequences, but there are due consequences for the areas about which I have spoken.

First, the rule of law, our adherence to it and respect for it, is central to our position in the world and our leadership in the development of the law and those other areas of commerce and trade underpinned by the law: financial and professional services and the digital and data economies. That is central to our future, and we do ourselves enormous damage by pursuing the current course. Secondly, we need agreements with the EU and others for the future. Who wants to deal, or at least deal on good terms, with those who break or threaten to break agreements rather than have recourse to dispute resolution? I very much hope that the Minister will be able to explain, as the noble Earl, Lord Kinnoull, has already asked, why we are not pursuing that course.

Parliamentary Constituencies Bill

Lord Thomas of Cwmgiedd Excerpts

Committee stage & Committee: 2nd sitting (Hansard) & Committee: 2nd sitting (Hansard): House of Lords
Thursday 10th September 2020 Grand Committee

Moved by

[Lord Thomas of Cwmgiedd]

12: After Clause 4, insert the following new Clause—
“The Boundary Commissions: constitution
(1) Schedule 1 to the 1986 Act (the Boundary Commissions) is amended as follows.(2) At the end of paragraph 2 insert “in accordance with paragraph 3A below”.(3) In paragraph 3(a), for “Lord Chancellor” substitute “Lord Chief Justice of England and Wales”.(4) In paragraph 3(c), for “Lord Chancellor” substitute “Lord Chief Justice of England and Wales”.(5) After paragraph 3 insert—“3A The two members of each Commission appointed by the Secretary of State shall each be appointed in accordance with the following process—(a) a selection panel shall be convened by the Secretary of State to select the members of the Commission, which shall comprise—(i) the deputy chairman of the Commission, and(ii) two persons appointed by the Speaker of the House of Commons;(b) the selection panel shall determine the selection process to be applied and apply that process;(c) the selection panel shall select only one person for recommendation for each appointment as a member of the Commission;(d) the selection panel shall submit to the Secretary of State a report stating who has been selected and any other information required by the Secretary of State;(e) the Secretary of State shall on receipt of the report do one of the following—(i) accept the selection,(ii) reject the selection, or(iii) require the panel to reconsider the selection;(f) the power of the Secretary of State to require the selection panel to reconsider a selection is exercisable only on the ground that, in the Secretary of State’s opinion, there is not enough evidence that the person selected is suitable for appointment as a member of the Commission;(g) the power of the Secretary of State to reject a selection is exercisable only on the ground that, in the Secretary of State’s opinion, the person selected is not suitable for appointment as a member of the Commission;(h) the Secretary of State shall give the selection panel reasons in writing for requiring the reconsideration of, or rejecting, any selection.”(6) In paragraph 4, at end insert “, but the term for which each member (other than the chairman) is appointed shall be a non-renewable term.””Member’s explanatory statement
This amendment would ensure that the appointment of members of the Boundary Commissions is made and is seen to be made independently and without the influence or appearance of influence of the Executive, to remove the possibility of political interference in the process of setting the boundaries of Parliamentary constituencies.

[Lord Thomas of Cwmgiedd (CB) [V]]

The background to Amendment 12 is the effect of automaticity in moving the focus to the Boundary Commissions, which will now make the final decisions. This means that any risk of interference or perception of a lack of partiality or other matters will move to the commission and the process of appointing it. The Constitution Committee suggested we should consider what needed to be done to ensure the independence and impartiality of the commission. I am sure that there is complete agreement that the process must be wholly independent and free from the possibility of political inference or, more importantly, any perception of political interference or influence. Decisions must be independent and be seen to be independent and we must safeguard the process from the US problems of gerrymandering.

The amendment seeks to address this issue in three ways, so that the commission is not only independent and impartial but seems to be so. The first way is the appointment of the deputy chairman. Commissions are chaired by deputy chairmen. In each of our four nations the deputy chairman has to be a High Court judge. In Scotland, the deputy chairman is appointed by the head of the judiciary, the Lord President, and in Northern Ireland by the head of judiciary there, the Lord Chief Justice of Northern Ireland.

However, that is not the position in England and Wales. The appointment is not by the head of the judiciary, the Lord Chief Justice, but by the Lord Chancellor, a Government Minister. For England and Wales this anomaly predates the change to the position of the Lord Chancellor in 2005. Until then, he was the head of the judiciary in England and Wales and a judge. Now, not only is he not head of the judiciary, he is no longer a judge but a political Minister.

The Act should therefore now be changed so that the deputy chairman is no longer appointed by a Government Minister but, as in Scotland and Northern Ireland, by the head of the judiciary. Although the Lord Chancellor consults the Lord Chief Justice, that is insufficient in the light of the proposed change brought about by the Bill. That is because it is necessary to ensure that the independence of the judiciary is not undermined by any perception of partisanship in the appointment. It must be seen to be wholly independent of the political Minister which the Lord Chancellor now is. That is a small and, I hope, uncontroversial change.

The second matter relates to the independence of the appointment process of the other members. I put forward a process based on the commission used for the appointment of the senior judiciary—the Judicial Appointments Commission—and the appointment process it has adopted. I have done so as the process of the commission will be far more akin to a judicial process. It must be impartial and independent and seen to be so. It must make its decision on the evidence and the decision is then put into effect by the other branches of government, without any power to change the decision.

Therefore, I suggest, first, that the panel must be independent. I propose in my amendment that the panel should comprise the deputy chairman, as that reflects current practice, and two panel members appointed by the Speaker of the House of Commons. Secondly, the process should be that determined by the panel. If the panel is appointed as suggested, the selection process should be left to it. I am not in favour of automatic disqualifications, as something you decide now can come back and disqualify someone for something they did many years ago. Thirdly, the panel must put forward one name to the Minister, who can object only on a limited basis and must give reasons in writing. That is the practice followed in judicial appointments. This has proved a very effective mechanism for the appointment of judges and exists—I must emphasise—without in any way undermining public confidence in other appointment processes. It is because the appointment process to the Boundary Commission is so similar to the appointment of judges that I put this forward.

The third means that I think should address the question of impartiality and independence is the non-renewable term. It is clear that the members of the commission must be free of any pressure during their work by the prospect of being offered a further term. That is why a number of bodies with special status have fixed terms that are not renewable. Security of tenure, again, is like that given to judges. If they are not liable to reappointment there cannot be subjective pressure or undue influence. In recent years, the trend has been for constitutional watchdogs to be appointed for a single, non-renewable term. A dozen such bodies whose members cannot be reappointed include the following six, which come under the Cabinet Office: the Civil Service Commission, the Commissioner for Public Appointments, the Committee on Standards on Public Life, the House of Lords Appointments Commission, the Advisory Commission on Business Appointments, and the Local Government Ombudsman. It seems to me that if the Cabinet Office believes in the importance of non-renewal terms for these bodies, why would it not apply this logic to the Boundary Commission?

Parliament also believes in the importance of single, non-renewable terms for constitutional watchdogs. The law was changed in 2006 to make the parliamentary ombudsman appointable for seven years, non-renewable; in 2011 to make the Comptroller and Auditor-General appointable for 10 years, non-renewable; and in 2012 to make the Information Commissioner appointable for seven years, non-renewable. Noble Lords will note that I have not recommended the length of the term. That is because I think it remains to be clarified as to what is planned for the activities of the commissioners, bearing in mind, first, that they are likely to be active for only two to three years in the envisaged eight-year cycle and, secondly, the way in which this is done must make the post attractive. Those are the three bones of this amendment. I beg to move.

[Lord Janvrin (CB) [V]]

I will speak briefly in support of the amendment introduced by the noble and learned Lord, Lord Thomas. As was discussed on Tuesday, the Bill introduces automaticity into the implementation of new constituency boundaries following a boundary review. This is a move which I support. This amendment is a further step to ensure that the review process is, and is seen to be, totally impartial. Its aim is to strengthen the independence of the Boundary Commissions themselves by setting out how the appointments of their members can be made independently and without the possibility of political interference. The importance of this was underlined by the Constitution Committee and the arguments in favour of this additional clause have just been well set out by the noble and learned Lord, Lord Thomas.

I simply add that I hope there will be no temptation to argue that this amendment is unnecessary. If the Minister does take that line when he replies, he would be saying in effect that we can trust the present appointments system. I ask him to reflect on this in the context of the level of public trust in politics today, which was touched on in our debate on Tuesday. When winding up the Second Reading debate earlier this year, the Minister said that the Boundary Commissions

“are independent and neutral; they must and will remain so”.—[Official Report, 27/7/20; col. 96.]

This amendment will surely assist the Government in meeting this worthy pledge.

--- Later in debate ---

[Lord True (Con)]

My Lords, perhaps I might be permitted to reply to that. I always try to be gracious and I enjoy the challenge that comes from the noble Baroness. The cut and thrust of politics makes it worth while being a Member of your Lordships’ House, and let us have more of it. I accept what the noble Baroness says: that she was simply referring to paragraph 6 of the report, which I also have before me. I accept that she was not saying that those were specific recommendations by the Constitution Committee. I hope that she and I, and the whole Committee, will agree that we should consider, as we are doing “what safeguards are required”—which was the recommendation—

“to ensure the independence and impartiality of the Boundary Commissions.”

The noble and learned Lord, Lord Thomas, has put forward some proposals. I have argued that the system currently satisfies that objective. But, as I have said, I am open to having further discussions on this matter.

[Lord Thomas of Cwmgiedd (CB) [V]]

I thank all noble Lords who have spoken in favour of the amendment. Perhaps I might briefly reply to the points made by the Minister. First, as to the position in respect of the appointment of a judicial member, this is now plainly anomalous. I simply cannot understand why the Government seek to have this particular aspect of a judge’s deployment within the control and decision of a political Minister. Ministers are not allowed to appoint judges to particular cases. If as a result of a Boundary Commission it was felt that the commission had unduly favoured one party, it would be very damaging to the independence, and the perception of independence, of the judiciary if someone was able to say, “Well, that judge who is the deputy chairman was appointed by a politician.”

Further, there seems to be absolutely no reason why the position of those in England and Wales should not brought in line with those in Scotland and Northern Ireland, bearing in mind the logic of the position: namely, that at the time this was done, the Lord Chancellor was a judge. The Lord Chancellor is no such thing these days; he is a political Minister.

Secondly, on the issue of public appointments, I hope that the Minister will reflect further on the unique nature of the decision-making of the commission. It is not a body whose decision can in effect be challenged; it is an independent decision. Therefore, a special process much more akin to that of the judiciary is required. Appointability should not be the criterion.

On renewable terms, it is clear that the Cabinet Office accepts, as Parliament has accepted, that there are certain positions where it is essential that the term of appointment be non-renewable, to remove pressure. The Minister said—I think I heard him correctly, but one is always cautious when hearing matters over a remote link—that someone is reappointed subject to a satisfactory appraisal, but that really has no place in the process of appointing someone who is meant to be independent and who may be expected to make decisions of which Ministers do not approve.

I therefore would very much like to take up the opportunity of discussing this further with the Minister and others because I believe that we should be able to put this matter into a situation where everyone can have confidence, and the perception of confidence, so that the judgment of the commission is never capable of being called into question on the basis that politicians have been involved in its appointment. On those terms I beg leave to withdraw the amendment.

Amendment 12 withdrawn.

Parliamentary Constituencies Bill

Lord Thomas of Cwmgiedd Excerpts

2nd reading & 2nd reading (Hansard) & 2nd reading (Hansard): House of Lords
Monday 27th July 2020 Lords Chamber

[Lord Thomas of Cwmgiedd (CB) [V]]

[Inaudible]—proposal for the implementation of reports of Boundary Commissions with what has been described as automaticity, without the current parliamentary approval and, therefore, it is said, without the possibility of political influence or interference at that stage. In future, unless Parliament changes primary legislation at the time of a report’s publication, it will cease to have a role. It is said we are drawing on the experience of successful examples elsewhere, in New Zealand, Canada and Australia.

The consequence of this change must be to move the focus of any risk of political interference to the Boundary Commission, as the final decision will no longer be for Parliament. This means that any risk of interference may move to the commission and the process of appointing it. It is therefore essential that the commission is not only independent but seen to be independent and appointed independently.

As noble Lords know, commissions are chaired by the deputy chairman in each jurisdiction, who has to be a High Court judge. In Scotland the deputy chairman is appointed by the head of the judiciary, the Lord President, and in Northern Ireland by the head of the judiciary there, the Lord Chief Justice of Northern Ireland. However, that is not the position in England and Wales. The appointment is not by the head of the judiciary, the Lord Chief Justice, but by the Lord Chancellor, a government Minister.

For England and Wales, this anomaly—which pre-dates the change to the position of the Lord Chancellor in 2005—must be changed, in my view, so that the deputy chairman is no longer appointed by a government Minister but, as in Scotland and Northern Ireland, by the head of the judiciary. Although, of course, the Lord Chancellor consults the Lord Chief Justice, in the light of the proposed change brought about by this Bill in effecting automaticity, that is no longer sufficient. That is because it is necessary to ensure that the independence of the judiciary is not undermined by any perception of partisanship or political influence in the appointment. It must be seen to be wholly independent of the political Minister that the Lord Chancellor now is.

At the same time it seems necessary to change the appointment of the two other commissioners. Professor Hazell and Dr Renwick of the Constitution Unit at University College London set out a number of alternatives in their evidence to the House of Commons Committee in June 2020. In agreement with them, I urge that the preference should be the appointment made by an independent committee, including the deputy chairman, as is present practice. That committee should then put forward a single name to the Minister, with a power to reject only if written reasons are given. That has proved a very effective mechanism for the independent appointment of judges.

If the commission’s decisions are, in effect, to be final and binding through automaticity and protected from political interference, the appointment process must be independent and therefore seen to be free of the risk of any perception of political interference and influence.

EU: Trade and Security Partnership

Lord Thomas of Cwmgiedd Excerpts

Tuesday 9th June 2020 Lords Chamber

[Lord Thomas of Cwmgiedd (CB) [V]]

Can the Minister explain the steps the UK Government are taking to involve the devolved Governments in formulating positions to be taken in the negotiations in the light of the many assurances given by the UK Government about involving the devolved Governments?

[Lord True [V]]

My Lords, there is regular contact between government Ministers and Ministers in the devolved Administrations. Those contacts will continue.