Queen’s Speech

Debate between Lord Thomas of Cwmgiedd and Lord Alderdice

Thursday 13th May 2021 Lords Chamber

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

My Lords, we must work collectively in this House, as the noble Baroness, Lady Crawley, has so eloquently explained, to give real effect to the commitment in the gracious Speech to promote the strength and integrity of the union. I therefore particularly welcome the step taken at the end of the old Parliament by the Secretary of State for Wales and the noble Baroness, Lady Bloomfield of Hinton Waldrist, to set about constructive discussion with Peers who have a particular interest in Wales.

There are four matters in particular which we should address together. First, there are the common frameworks —I have had the privilege of serving on the committee for their scrutiny, so ably chaired by the noble Baroness, Lady Andrews. The name of these instruments does not suggest for a moment that they are of much interest or importance, but the first report of the committee, published on 24 March, tried to make clear how essential they are to a co-operative union and the creation, by consensus, of UK-wide systems to protect matters as diverse as protection of the environment, public procurement and the regulation of subsidies, while allowing appropriate divergence, reflecting devolution. There is much we can do together to strengthen the union through effective common frameworks but, as was said by the noble Baroness, Lady Crawley, these require hard work and detailed co-operation.

Secondly, I will refer to the levelling-up funds, which Part 6 of the internal market Act permits this Government to use in areas of devolved competence. When these provisions were debated in this House and at the final stages of ping-pong on 14 December the Minister made it clear that while the specific arrangements for the governance of the funds were still being developed, there will be governance structures, and that the devolved Administrations—[Inaudible.] Can the Minister tell the House when the governance structures will be in place and assure us about the place of the devolved Administrations in those structures?

Thirdly, I will refer to the absence of proper structures for developing UK-wide policies on which again we in this House ought to work together. There are two basic problems: first, the current structures do not sufficiently involve the devolved Administrations and their Parliaments and, secondly—[Inaudible.]

Finally, I will refer to the balance of power between the Executive, the legislature and the courts. This must reflect a properly balanced, interdependent relationship between these three powers of the state. There is nothing that I can possibly add to the eloquent speech of the noble and learned Lord, Lord Judge, explaining how the balance has swung too far in favour of the Executive, to the detriment of Parliament, particularly in the light of our method of legislation, and particularly framework legislation, so clearly summarised by the noble Lord, Lord Lisvane. It is important to stress that it is in that context that the position of the courts must be set.

To go back to my theme about the need to work together to strengthen the union, there is one point I must mention. The proposals will also have implications for the devolved nations. Therefore, I trust that the Government will look at ensuring that the Parliaments and Executives in those nations have a decisive voice in the arrangements in so far as they may be affected by these proposals, because they relate as much to democracy in the devolved nations as they do to democracy within the United Kingdom as a whole.

[The Deputy Speaker (Lord Alderdice) (LD)]

I call the noble Lord, Lord Wigley. We cannot hear the noble Lord, so we will come back to him. I call the noble Lord, Lord Hannan of Kingsclere.

Covert Human Intelligence Sources (Criminal Conduct) Bill

Debate between Lord Thomas of Cwmgiedd and Lord Alderdice

Consideration of Commons amendments & Ping Pong (Hansard) & Ping Pong (Hansard): House of Lords
Tuesday 9th February 2021 Lords Chamber

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

My Lords, I wish to speak to Motion E. I have nothing to add to the eloquent observations made by the noble Baroness, Lady Hamwee, and the noble Lord, Lord Anderson, on Motion A.

First, I thank the Minister, and in particular the Bill team, for the constructive discussions I have had since tabling my amendment. Its purpose is to add to the real-time notification a mechanism to ensure that action is taken if the judicial commissioner has made adverse comments or found that the authorisation should not have been granted. In the debate on Report, the noble Baroness, Lady Manningham-Buller said:

“It is difficult for me to imagine that if a judicial commissioner raised a serious concern about an authorisation, it would continue. But it might not be able to stop immediately. There would have to be some discussion, because the safety of the covert human intelligence source would be paramount.”—[Official Report, 11/1/21; col. 538.]


I believe that she was right to say what would happen if a judicial commissioner expressed that view.

However, I took the view then, and still take it, that there must be something which operates as a mechanism to ensure that something does happen: that in some cases the authorisation should be discontinued or unwound in an orderly manner. An amendment to the Bill would have been the better course, and I much regret my own failure to try to persuade the security services that it would be in their own interests to have it in the Bill. But taking into account what the noble Lord, Lord Carlile of Berriew, said in the same debate in relation to the utility of codes of practice, and my objective, I am glad that the Minister has agreed to insert into the code of practice the wording that she has read out.

It achieves a number of purposes. First, it goes slightly wider than my proposed amendment, in that it will apply to all observations, not merely saying that the authorisation should not have been granted. Secondly, it requires the person who gave the authorisation to take action, but to work out what to do. If that person gets himself or herself into the position of doing something that should not have been done, they should be responsible for working out how to get out of it. Thirdly, it requires a more senior officer to be notified of what is intended. It has always been my worry that a person in the position of an authorising officer whose action is disapproved of might try to cover up what has happened. Finally, it requires the office of the IPC to be notified of the intended action—that is, before the action is taken, save in cases such as urgency or where the action taken is simply to stop the activity. It enables the IPC to express a view and, if there is a difficulty, to work out what should happen in a collaborative manner.

As I have said, it would have been far better if there was a legislative provision of the type proposed, but as a matter of practical reality, I would hope that this insertion into the code of practice should ensure that if the judicial commissioner does not approve of the authorisation or of what has happened, or criticises it, there is a clear mechanism in place to stop the activity or modify it accordingly in a manner that protects the CHIS.

The IPC is a body with very great authority, comprised as it is of senior judges. It has been my experience throughout my former judicial career that remarks made in such circumstances as this are ignored only at the peril of the person concerned. I would hope and expect, therefore, that the observations will be acted on immediately and that the office of the IPC is notified of any intended action. If, contrary to my expectations, this does not work, the people who will suffer real damage will be the police and the security services; to them, the damage will be immense. What I hope would happen is that this provision will strengthen the view that before making an authorisation in unusual and not simply routine circumstances—most of these authorisations apply to routine circumstances—the police and the security services would serve their own interests far better by going to the office of the IPC before they authorise an action rather than afterwards.

[The Deputy Speaker (Lord Alderdice) (LD)]

The following Members in the Chamber have indicated that they wish to speak: the noble Lords, Lord West of Spithead, Lord Young of Cookham, Lord Russell of Liverpool and Lord Adonis, and the noble Baroness, Lady Jones of Moulsecoomb. If any other Members in the Chamber wish to speak, I ask them to contact the clerk as soon as possible.

United Kingdom Internal Market Bill

Debate between Lord Thomas of Cwmgiedd and Lord Alderdice

Committee stage & Committee: 5th sitting (Hansard) & Committee: 5th sitting (Hansard): House of Lords
Monday 9th November 2020 Lords Chamber

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

I speak to oppose the inclusion of Clause 50 in the Bill. It is important to distinguish between what I spoke about on the last occasion the Bill was before the House: under Clause 48, what regime is to govern EU structural funds in future. This clause deals with state aid.

Both clauses have one thing in common: they seek to alter the devolution schemes as they stand, for economic development powers are devolved. For example, in respect of Scotland, paragraph 4(1) of Part 3 of Schedule 5 to the Scotland Act makes that clear. The position at present, therefore, is that it is for Scottish Ministers, Welsh Ministers and Ministers in Northern Ireland to determine what financial assistance is provided, in the same way as they determine how the structural funds are dealt with.

State aid is of obvious, considerable importance. It can help to address market failures and provide incentives for research and development, of which the noble Baroness, whom it is a privilege to follow, has spoken. They also deal with areas where the Government want to deal with strategic objectives, such as promoting the use of green technologies or promoting more sustainable agriculture.

Of course, state aid can be harmful if it is not directed in the same way; that is why there must be some form of regime in respect of state aid. The present position on state aid is, as we remain part of the European Union regime, that the devolved Governments make the decisions within the EU regime. In consequence—and it has been during the whole period of devolution—state aid is not a reserved matter. It is devolved.

The British Government’s stated position had been to retain the EU regime and put in place an independent body to police it in place of the Commission, as has happened in respect of other parts of the regime that still governs us but will not do so for much longer. That obviously would not have required any change to the devolution scheme. However, the present Government have decided to change this. They intend to use their Henry VIII powers to do so by statutory instrument. However, they have not consulted on what they want to put in its place, and seek agreement and the views of industry and others, in particular the devolved Governments. As in the other parts of this Bill, the UK Government want to do so without reference to working with the devolved Governments within the devolution schemes. However, in this case, they have hit the snag to which I have referred: they lack the power to do so. State aid and schemes are not reserved.

Clause 50, therefore, seeks to make state aid a reserved matter by what I regret to call a “device” of extending the competition reservation so that it can be used, in effect, to direct policy on state aid. This is not the way to proceed. A regime for state aid subsidies is needed unless, within the current negotiations, we agree to some arrangement that mirrors those of the EU. As is clear from the recently published IfG paper, Beyond State Aid, there are many reasons why a state aid regime is essential, but we need a properly thought-through regime before we legislate, including thinking through the role of the regulator. Such proposals should have been set out before we considered such a clause as this. They should have been consulted on and agreed with all the relevant interests—businesses, universities and others.

Furthermore, the regime to be put in place would have to command the confidence of the devolved Governments, who are responsible, under the devolution schemes, for economic development. Bodies within England also have economic development responsibility. After all that consultation, it should have been determined how this would best be implemented. One way of proceeding would be a common framework with an independent regulator such as the CMA, but a decision would have to be made on the kind of regulator wanted. Would it be the kind of light-touch regulator that some have suggested, with an advisory role, or one with policing powers? If it was a light-touch regulator, to whom would it report—to the UK Government only or to the devolved Governments as well?

Tackling all of this without a policy and through the back door is wrong, as I see it. That course of action also has long-term implications. Proceeding in this way will set policy on the legal basis that it is designed to avoid anti-competitive practices. It will not be based on a forward and positive way of setting out a policy based on looking for economic development.

Therefore, in opposing the inclusion of this clause in the Bill, in short, it is wrong to change the devolution arrangements in this way and without any consultation about the future regime, let alone agreement on it having been reached. I have no doubt that we need a competition regime and that it will need some kind of advisory or other independent policing body. However, we should do this in the proper way and not rush to do it by putting a clause such as this in the Bill. It should not stand part of the Bill.

[The Deputy Chairman of Committees (Lord Alderdice) (LD)]

The noble Lord, Lord Purvis of Tweed, has withdrawn, so I call the noble Baroness, Lady Finlay of Llandaff.