House of Lords (Hereditary Peers) (Abolition of By-Elections) Bill [HL]

Lord Thomas of Gresford Excerpts

Committee: 2nd sitting (Hansard): House of Lords
Friday 7th September 2018 Lords Chamber

[Lord Northbrook]

The noble Lord is correct on Scottish representation—I said earlier in my speech that the Scots were adequately represented. As I understood it, only one of the 92 was a Northern Irish Peer, and I wanted to see that process continued among both nationalities.

[Lord Thomas of Gresford (LD)]

Does the noble Lord agree that there is therefore a lacuna in the Act of Union of 1542 which incorporated Wales into the United Kingdom? Would he accept that Henry VIII powers should be put into this Act to amend that particular lacuna?

[Lord Northbrook]

Far be it from me to debate with the noble Lord, but as I understand it, the concept of representative Peers did not apply to Wales, while it did to Northern Ireland and Scotland.

Brexit and the EU Budget (EUC Report)

Lord Thomas of Gresford Excerpts

Thursday 6th April 2017 Lords Chamber

[Lord Thomas of Gresford (LD)]

My Lords, it is such a pleasure to follow the noble Lord, Lord Davies of Stamford, because I agree with every word that he has spoken.

I commend the European Union Committee for its hard work in producing the report. However, it is unfortunate that it has been seized upon by the Brexiteers, who have affirmed that the United Kingdom could flounce out of the negotiations without a deal and avoid any obligations or commitments which had been incurred. “We don’t have to pay a penny”, trumpeted the Daily Mail.

I have read the evidence given to the committee by the three legal experts, who were not agreed. Because they were not agreed, the opinion of the legal adviser, Mr Harvey, was sought. No one is an expert in this field, because Article 50 has never before been tested. I find his opinion tortuous and I cannot agree with his view on the effect on our liabilities to the EU should no deal be forthcoming. His view is reflected in paragraph 133 of the report in these terms:

“The rule in Article 70(1)(b) of the Vienna Convention only applies to withdrawal from a treaty which does not have its own withdrawal procedures”.


Then it says in brackets,

“(‘unless the treaty otherwise provides’).”

The report continues:

“Manifestly, the TEU does, in the form of Article 50. Article 50 therefore takes precedence over Article 70(1)(b) of the Vienna Convention”.


I quite fail to understand what that paragraph means.

Paragraph 2 of Article 70 states,

“a State … withdraws from a multilateral treaty, paragraph 1 applies in the relations between that State and each of the other parties to the treaty”.

Paragraph 1 deals with the rights, obligations and legal situation of the parties prior to the termination. That is what it is about. It says that,

“Unless the treaty otherwise provides”,


those rights and liabilities are not affected. It is very simple and plain language. As the noble Lord has pointed out, Article 50 does not otherwise provide—it is quite silent on the existing rights and obligations at the date of withdrawal from the treaty. It follows that any other state that is a party to the treaty can enforce those rights and obligations in law. That is the legal side.

On the practical side, we are about to have placed before us the great repeal Bill, which is to take the whole of the acquis communautaire into domestic law—to make EU law domestic law. If the United Kingdom were sued for a money sum, would we actually raise a defence that these obligations arose only under EU law, which we have just taken and made part of our own domestic law? Would we deny the jurisdiction of our own High Court of Justice? If we did that, would we then refuse arbitration where, by agreement, any questions of international law could be determined? Would we force another state to raise an issue in the International Court of Justice and spend years locked in conflict with Europe, simply ignoring the rights of other states in Europe that would obviously be affected by our position?

The view that our rights and obligations would come to an end the moment we fall out of the EU would have strange results. For example, money has already been allocated to Wales from the European structural funds to improve the port facilities at Holyhead. Let us assume that the money is paid upfront. The First Minister of Wales might consider, “Should we spend this money on Holyhead, or wouldn’t it be rather nicer to spend it on a marina in Cardiff Bay? We might attract Sir Philip Green and yachts of that sort and improve the character of the place where we work. We have no obligations to the EU: they have given us the money; we do not have to pay it back, and can use it as we like. They cannot sue us”. That would be nonsense, would it not?

Assets are another important issue. I happen to have been a member of the Reform Club for some 45 years, which is about one-quarter of the time that that distinguished club has been in existence—I stayed there last night, as it happens. If I were to cease to be a member tomorrow, I would not go to the secretary or the trustees and say, “Look, I have paid my subscription for 45 years and think I am entitled to a share of the value of this club. I demand my part of it”. That would be nonsense. But at the same time, I would not expect to have to contribute to the liabilities for the pensions of the staff. We did not form the European Union; we became a party to it. We came late to the feast, although many of us were campaigning to become members long before 1972. We were members of a club, and we cannot say that we are entitled to a portion of its facilities wherever they may happen to be.

This country has entered into commitments. The multiannual financial framework for 2014-20 was negotiated and agreed in 2013. There was a problem at that time because the European Parliament was concerned that countries were not paying their dues. There were shortfalls which jeopardised projects such as the Erasmus programme and the Social Fund, which ran out of funds in 2013, and it was said that those countries had to pay up during that year. Since we negotiated and became a party to that multiannual financial framework, the annual budgets of the EU have been calculated on the basis that the agreed funding in the MFF was available to carry out those programmes commenced before 2020 within the budget.

We are currently in the period of the 2017 budget, which committed members of the EU to contribute €157 billion, out of which payments of €134 billion would be made. I take it—I ask the question directly of the Minister—that, notwithstanding Brexit, the United Kingdom is engaged in the discussions and negotiations for the 2018 budget within the MFF. I assume further that we will still be a party to the discussions on what the MFF 2019 and 2020 budgets will be. We must continue to participate.

I am concerned from a Welsh point of view, obviously, because Wales is a net recipient of EU funding. It receives funds from the European Agricultural Guarantee Fund, the European Regional Development Fund and the European Social Fund. Indeed, some 60 projects have already been approved, with liabilities that organisations have taken on and put into their programmes which will extend way beyond 2020. Surely those liabilities will have to be met from funds from this country. It is true that the Treasury has issued a guarantee that these matters will be paid up until 2020, but what happens after then when the programmes run on?

The problems that the report highlights and makes it necessary to discuss are complex and difficult. However, we must properly address them and not get involved in the suggestion that we can just walk away from Europe, hold our noses and not have anything more to do with it.

[Lord Butler of Brockwell (CB)]

My Lords, the members of the sub-committee which produced this report have perhaps been blowing their own trumpets. However, in this case we are justified in doing so because, under the skilful chairmanship of the noble Baroness, Lady Falkner, this report is a good example of the service which your Lordships’ House can perform for Parliament and the country as a whole.

As the exposition of the noble Baroness, Lady Falkner, made clear, the report covers two principal aspects. First, it describes and seeks to quantify the elements of the EU’s budgeting arrangements which may contribute to a claim on the UK for a payment or payments from the UK after we leave the EU. Secondly, it seeks to establish the legal position of the UK’s liability for such payments. Those legal aspects were discussed in the contributions of the noble Lords, Lord Davies of Stamford and Lord Thomas of Gresford, and I am not going to dwell on them.

It is fair to say that it surprised Members of the Committee —it certainly surprised me—to hear the legal advice that, in the absence of an agreement, the EU will have no means of enforcing any financial liability against the United Kingdom. I note that if the advice is correct, however, the phrase “a divorce settlement” is misleading. In a divorce a court determines the liabilities of the parties and has the means to enforce that determination. In this case the legal advice is that in the absence of an agreement to the contrary, the jurisdiction of the ECJ ends on our departure. Again, I do not want to dwell on the legal aspects. I have used the phrase, as have others, “in the absence of an agreement”, and I emphasise it. Of course we want an agreement. We have much to gain by getting one and a great deal to lose by not doing so. It is important to note, as the noble Lord, Lord De Mauley, said, that in the aspect of finance it is the EU which will lose in the absence of an agreement. Since the UK’s gross contribution is currently one-eighth of the EU’s annual budget, there is much at stake here, so no wonder it wants to make progress on this issue before discussing the other aspects of our future relationship.

Both sides should want a reasonable agreement on this issue. What should a reasonable agreement look like from the UK’s point of view? The Government have said, I believe rightly, that the UK would,

“continue to honour our international commitments and follow international law”.

The Chancellor of the Exchequer has said something similar about meeting our obligations. Monsieur Barnier is quoted today as emphasising the importance of an agreement to the EU, although he has quoted an exit payment approaching a figure of £60 billion. The report seeks to identify and discuss the main elements, and like the noble Lord, Lord Thomas of Gresford, I should like to take them in turn.

First, as the noble Lord, Lord Thomas, pointed out, the UK will be leaving the EU some 19 months before the end of the current multiannual financial framework. That framework sets a ceiling on the EU’s expenditure. It is not a commitment to expenditure. The UK was a party to it but it does not commit us to spending up to the ceiling which we agreed in that negotiation. If the UK’s gross budget contribution of 12.5% ends in March 2019 it will leave a big hole in the EU’s spending plans, and if instead of ending its contribution on departure the United Kingdom were to continue its budget contribution until the end of the current period of the framework, the committee calculates that that might cost the UK some £15 billion. But as I have pointed out, the MFF sets a ceiling; it is not a commitment to spend, and here I differ from the noble Lord, Lord Thomas.

The commitment to spend is set by the annual budget—

[Lord Thomas of Gresford]

My Lords, with respect, I suggested not that we were committed to pay under the multiannual financial framework, but that we are committed to spend on the budgets which rely on the MFF in order to come to a conclusion of what can be spent.

[Lord Butler of Brockwell]

I accept that but the point is, as the noble Lord has said, that the budgets for the periods after we leave have not yet been set so we are not committed to them. The annual budget for 2019 and 2020 has not been set, so I regard any claim on the UK in respect of those years as weak. As paragraph 46 of the report points out, this view seems to be shared by the German Finance Minister, Wolfgang Schäuble, who has said that it will be necessary to negotiate a new MFF on the assumption that the UK contribution ceases in 2019—when we depart from the EU. Continuation of the UK’s payment under a multilateral financial framework that continues after we have left is not in fairness a strong claim on the UK.

The second element of a possible EU claim is the commitments made in budgets to which the UK has been a party, which will remain to be paid after March 2019—the so-called reste à liquider, or remainder to be liquidated. Like others, I regard this claim as stronger. There is probably no legal obligation to make these payments after the UK has left the EU, but it may be argued that there is a moral obligation since the commitments were entered upon and budgeted for while the UK was a member.

The EU estimate of the commitments that will be outstanding at the end of 2020 is £254 billion. We do not have an estimate for the outstanding commitments at the end of March 2019, but since commitments contracted for but not paid tend to diminish as the MFF wears on, the figure at the end of March 2019 for outstanding commitments may be higher. However, as has been pointed out, some of these may never materialise. Moreover, some commitments are to the UK itself. These should be netted off, after which the UK share of commitments to other partners is unlikely to amount to more than £10 billion. If the UK were to agree to meet these it would be sensible to do so not in a lump sum but over the next few years as the commitments materialise.

It is right to add that the respected Brussels think tank the Bruegel Institute produces a much larger figure for commitment outstanding, including a large element under the heading, “significant legal commitments”. These are commitments pledged in legal terms but not yet budgeted for. Since they are expected to be budgeted only over a long period, they are not included in the EU’s balance sheet nor in the reste à liquider. In this case it seems difficult to argue that the UK has any liability for these unbudgeted items after leaving the EU.

Thirdly, there is the possibility of a claim based on pension liabilities for past or present employees of the EU or its institutions. Here I agree with the noble Lord, Lord Thomas of Gresford, that this is a weak basis for a claim. UK nationals constitute some 4% of EU staff at present and have never been more than 8%. The Commission currently estimates its actuarial liability for future pensions at €63.8 billion. However, pensions are paid out of each year’s budget. Employees make a one-third contribution to them. Like the noble Lord’s, my view is that, on leaving the EU, the UK has no greater liability to contribute to the annual pension bill that someone leaving a club would have to contribute to the pensions of past and present employees. The nationality of these employees is immaterial. Even if the UK were to make an exit contribution based on the proportion of UK nationals employed, and if the EU’s calculation of a total actuarial ability of €63.8 billion is right—the Bruegel Institute puts it much lower than that—it would not amount to more than a handful of billion euros.

Neighbourhood Planning Bill

Lord Thomas of Gresford Excerpts

Committee: 4th sitting (Hansard): House of Lords
Wednesday 8th February 2017 Grand Committee

[Lord Beecham]

I beg your pardon—it is grouped with this on the paper I have here. I will not make that point now but will deal with it when we get to that group. I beg to move Amendment 129A.

[Lord Thomas of Gresford (LD)]

My Lords, I speak in support of the noble Lord, Lord Beecham, on Amendment 129A. I also speak, as a member of the Delegated Powers and Regulatory Reform Committee, to express our surprise that there was no provision even for consultation, with the Welsh Assembly, when proposed changes to an Act or secondary legislation are made. As I understand it, if it is an Act, there would normally be a legislative consent Motion; if it is secondary legislation, a consent Motion. That was the original provision, and I assume it is still the same. The noble Lord, Lord Bourne, fortunately, is an expert in this field.

I can only assume that this is an accidental omission, as I cannot see any policy in it. It seems to me ludicrous that a Secretary of State could, with a stroke of the pen, without any consent in Wales and without any consultation, simply amend the Act. I shall speak further on the clause stand part debate in a moment.

[Lord Bourne of Aberystwyth]

My Lords, I thank the noble Lord, Lord Beecham, for moving this amendment and the noble Lord, Lord Thomas of Gresford, for speaking in relation to this issue as well. To deal with the situation in its entirety, I will need to look back to the provisions in the Wales Act 2017. The noble Lord, Lord Thomas of Gresford, may recall that we had a similar issue there—I think he was in his place when we discussed it. The noble and learned Lord, Lord Judge, will certainly recall it

To put this in context, first, I make the point that any amendments here—this anticipates what we will be discussing in the next debate—have to be consequential, which limits it to matters that arise in the legislation and are consequential. Secondly, in these cases there are always minor issues. I think this has universally been the case—I have yet to be shown an example otherwise, and I have checked quite a few. In the context of the Wales legislation, it was anticipated that occasionally the wrong terminology would be used. For example, parish councils exist in England, but they are community councils in Wales, and this is about things of that nature, which one would not wish to have to bring back for primary legislation. That is not the sort of issue that should be in primary legislation.

In the context of the Welsh position, it is also worth noting that not only is there power in the Wales Act to amend legislation in the National Assembly for Wales, but it also operates in the other direction, giving the National Assembly—effectively, Labour Welsh Ministers —the opportunity to amend our legislation. I appreciate that not all noble Lords were steeped in the process of the Wales Bill. In practice, as is confirmed by an exchange of letters between the Secretary of State for Wales and the First Minister, Carwyn Jones, on which I hope to expand in a letter to noble Lords summing up what has happened in today’s Committee, where we identify an issue that needs a minor amendment, we notify both the First Minister and the Presiding Officer, the Speaker in the National Assembly, who, if she wishes —it is a she at present—can draw it to the Assembly’s attention. Of course, under devolved arrangements, it is a matter for her and the National Assembly as to what they do. So it is a reciprocal arrangement.

I anticipate that the noble and learned Lord, Lord Judge, will say that, from a legal purist’s point of view, that is not ideal, but from a pragmatic point of view of dealing with minor amendments—if noble Lords can find anything major that is dealt with in legislation of this nature, I should be very interested to see it, because that would be an outrage. It is a tidying-up exercise. I hope that we can translate this to the Bill. I am happy to look at this point and deal with it in correspondence, but it is a common-sense approach to what is a relatively minor issue. With that, I ask the noble Lord to withdraw his amendment. I am happy to discuss it with him and other noble Lords afterwards, but I put the substance of how this operates in the context of Wales, because I think there is a read across, and we would do something identical, mutatis mutandis, under the Bill.

[Lord Thomas of Gresford]

My Lords, if that is the case and it is the practice to write to the First Minister and Presiding Officer of the Assembly, why not have that in the Bill so that there can be no slipup, if that will inevitably happen and is required to happen? It seems common sense that it should be in the Bill. An exchange of letters outlining a practice is in no way a safeguard against the arbitrary use of the power by the Secretary of State, widely drawn as it is.

[Lord Bourne of Aberystwyth]

My Lords, the noble Lord knows as well as I do the difference between convention and provision in statute. If everything that had been discussed in Committee on the Bill will put in statute, it would be a much longer and more complex piece of legislation. This is about finding the appropriate place to deal with it. As I said, I am happy to share the correspondence and discuss it further, but I do not think it should appear in the Bill.

[Lord Bourne of Aberystwyth]

My Lords, with respect, it is asking not for that but for an obligation to consult, and I have said that that is a reasonable request. It is effectively what is happening under the Wales legislation. I have said that we anticipate doing exactly the same, mutatis mutandis, under the Bill, so that, via the Presiding Officer, we are consulting.

[Lord Thomas of Gresford]

Can the Minister tell us whether there is any provision in a Welsh Bill intended to amend English legislation, or legislation at Westminster, where no consultation is required, in the same way—mutatis mutandis?

--- Later in debate ---

[Lord Judge (CB)]

It is the lion that represents Millwall, is it not? I shall be brief, but not as brief as perhaps I should be because, with respect, this clause is totally flawed. I shall not go over the debate I had with the Minister over what is now the Wales Act, but we still have to face the fact that under the clause as it now stands following the debate on Amendment 129, the Secretary of State in London will be empowered to overrule the legislation of the elected Assembly. There is no arguing; that is what it says, and that is what it means. I understand that the Minister would have no intention of telling us anything other than how he envisages this power being used, and of course I accept it from him, but the power is being given to wipe out the enactments of the National Assembly for Wales without so much as a reference to it.

In my respectful submission, it is subsection (2) of this clause that is so unacceptable: the Henry VIII clause, the legislation that will set aside the legislation. It will give power to the Secretary of State to say, “I don’t like this legislation any more” or “I don’t like this part of this legislation any more, I’m going to get rid of it”. That is what we are empowering if we allow this to go through.

With Henry VIII clauses, you have to ask whether they are justified. Here, you ask the question: how is it justified? The answer to that question is that it is not justified. I looked through the Explanatory Notes. They state:

“Part 3 Final Provisions … Clauses 37-40”—


that covers Clause 38—

“and 42 are self-explanatory”.

That is it. No doubt the clause is self-explanatory, but, with great respect, so what? Self-explanatory is no sort of justification. It is not even an attempt to justify.

Assiduously, I hunted further and found what the department’s memorandum tells us the clause is for:

“There are a number of consequential changes being made by the Bill, particularly those flowing from the addition of a new procedure for modifying neighbourhood plans, restricting the imposition of planning conditions, and amendments to compulsory purchase legislation”.


That is a very neat summary of a very complex piece of legislation, but this is the justification that the department advances:

“It is possible that not all such consequential changes have been identified in the Bill. As such it is considered prudent for the Bill to contain a power to deal with these in secondary legislation”.


Is that any sort of justification?

Going back to the wording, if,

“the Secretary of State considers appropriate”,

is an entirely subjective discretion, entirely uncontrolled in any way by the legislation. Is that really what the department wants? Well, the department may want it, but we are being invited to give powers to a Secretary of State years down the line to repeal an Act of Parliament, the whole Act, the Act that noble Lords have spent four days working on in this Committee. By this provision, if it comes into force, it can all be wiped out. That is what Henry VIII means.

I repeat that I totally accept the good faith of the Minister, I accept it completely and utterly, but he will not be the Minister 10 or 20 years from now, and the list of legislation that the noble Lord, Lord Cameron, gave us reminds us of how long this legislation could last. So because the department thinks there is a vague, undefined possibility that may arise in the future, I respectfully suggest that we are being landed with a hugely dangerous piece of legislation because it is totally unjustified. Of course the future is unsure. We all know that; Shakespeare told us that. It is the most important line he wrote. We know that the future is unsure, but it is not a justification for giving literally sweeping—sweeping away—powers to the Executive. That is not how we should operate.

[Lord Thomas of Gresford]

I wholly support everything that the noble and learned Lord, Lord Judge, just said, and what the noble Baroness, Lady Cumberlege, said in introducing this debate. The matter that concerns the Delegated and Regulatory Reform Committee is on page 9 of its report, at paragraph 54. Not only is the power “very wide” in scope, but it,

“is to make whatever provisions—including ones amending and repealing Acts of Parliament … We note that it has become standard practice for provisions of this type to be included near the end of a Bill”.

This is appearing all the time. It is really an insurance policy: “We might make a mistake, and if we make a mistake we do not want to have the trouble of admitting it; we will just get some secondary instrument through Parliament, and that will be all that we have to do”. That is not a sufficient justification for such a wide power.

The committee suggested that at the very least, the power could be restricted by some type of objective test of necessity: to where it is necessary—to “where we have made a mistake” if you like—or to where something important has been omitted. We need something that gives substantive limitation to such a widely expressed power.

[Lord True]

My Lords, I will speak briefly, although I feel rather rash in doing so after the compelling interventions we have heard. As I understand it, this power applies to any enactment, not just, as the noble and learned Lord said—I am sure misspeaking—to what is in this enactment. My position is as a lay person, but also someone who was for a long time in the usual channels, interested in the drafting of legislation and how that was done by a Government whom I opposed for 13 years. I have to say that we would have looked a little askance at this sort of thing in those years in opposition. I understand the innocent intent and perfect integrity of the present Ministers involved, but the noble Lord, Lord Thomas of Gresford, rather anticipated my thought: if clear drafting instructions are given on what is required to be enacted and a Bill is properly drafted by expert draftsmen, there should be no need for the sweeping brush to be around afterwards. That is really how legislation should be presented to Parliament.

This is the second piece of planning legislation we have had in a year. I submit that there has been time to think through these things, but it is the wider point that concerns me. This is not an ad hominem, or a criticism of Ministers here, but this will become a practice—I was struck by that paragraph in the Delegated Powers Committee report. It will become part of the constitution if Parliament continues to accept, in Act after Act, that Ministers of the day can be given power to change any other enactment as a result of something that arises out of their further ruminations or representations on it. I hope that my noble friend will consider this carefully.

The other thing I would say, in the broader context of planning and the challenge of getting more housing and more things done, is that there is immense distrust out there—anyone who lives with the planning system knows the distrust and fear that people have that the system is loaded against them. The system is actually fair, and bends over backwards to try to be fair, but if government arms itself with powers to change the rules if something does not quite work out as might have been intended in the first place—instead of building that consent for new planning and new development that I want, and which I know the Government want—it may add to the sense, so eloquently expressed by my noble friend Lady Cumberlege, that the system is loaded. That must be something to avoid. Although my main objection is on the wider constitutional principle, as a practitioner—a local authority leader who has to stand between the forces of government and popular feeling—and as a layman, I argue that we should be particularly cautious in the context of this legislation.

Queen’s Speech

Lord Thomas of Gresford Excerpts

Tuesday 24th May 2016 Lords Chamber

[Lord Thomas of Gresford (LD)]

My Lords, I agree with everything that the noble Lord, Lord Foulkes, has said. I say to the Welsh Assembly, “We’ve given you the tools and we are going to give you more—get on with the job”. I also agree with the noble and learned Lord, Lord Judge, about the position of this House. I was arguing for an elected second Chamber in the 1964 general election, and we still have a long way to go.

I heard the words in the gracious Speech, repeated from last year:

“Proposals will be brought forward for a British Bill of Rights”.

I realised that it was Groundhog Day—and the furry object ceremonially carried by the Leader of the House on a wooden pole was undoubtedly the symbol of a groundhog. If nothing emerges this Session, I think that the noble Lord, Lord Faulks, fully robed, should walk backwards in the procession next year with an empty gold-plated casket engraved “British Bill of Rights”.

On Groundhog Day, I could repeat my speech word for word from last year. I do not think that anybody would notice—certainly not the Government. The noble Lord, Lord Faulks, told us in the mirror debate last year that a British Bill of Rights would be a “significant piece of legislation”, and that over,

“the coming months we will draw up proposals to implement this vital reform ”.—[Official Report, 1/6/15; col. 283.]

We were promised consultation and a draft Bill. What happened? Six months later, on 2 December, the Secretary of State announced that there would be a delay. The consultation was to include the role of the Supreme Court, and ask whether some laws should have a constitutional status. But as Mr Gove told the EU Justice Sub-Committee in February, and as has been restated today, all the rights of the European convention would be contained in this British Bill of Rights. He said that a British Bill of Rights,

“would still be subject to the primacy”—

a word we are familiar with—“of European law”. So it seems that the United Kingdom would remain a signatory to the European covenant as a necessary condition of our membership of the EU. So what is the point?

As noted by the noble and learned Lord, Lord Falconer, the Home Secretary, Mrs May, announced last month that, while she wants the United Kingdom to stay in the European Union, she wishes to withdraw from the European convention. Her appreciation of the status of the convention reminds me of the Patrick Stewart comedy sketch in which, as an aggrieved Prime Minister, he asks his Cabinet, “Why on earth can’t we in Britain draw up our own covenant of human rights and foist it upon Europe?”, to which the nervous civil servant replies, “Erm, that’s what we did in 1949”.

So what is happening? The Conservative manifesto stated that the Government would,

“break the formal link between British courts and the European Court of Human Rights, and make our own Supreme Court the ultimate arbiter of human rights matters in the UK”.

Is it the Government’s intention that the Supreme Court should have its own singular interpretation of the European covenant, as expressed in a British Bill of Rights? Do the Government think, as logic would suggest, that each of the 47 states that are members of the European Council should also be free to interpret the covenant as it thinks fit for the conditions within its own borders? My noble friend Lord Palmer referred to two countries. Should the Russian Supreme Court decide on what the right to freedom of expression means, or should the Turkish Supreme Court decide on what is meant by the extent of the prohibition of torture? Such an approach—of leaving it to the supreme court of every country—would make the convention meaningless. Is not the whole purpose of the European convention the creation of common standards of decency and human rights throughout the continent of Europe? I do not believe that the United Kingdom is the sole guardian of civilised values—and if the United Kingdom loses a case or two in the process, my experience tells me that you win some and you lose some. You cannot win them all.

How do the Government propose to disentangle the essential role of the European convention in the devolution settlements for Wales, Scotland and Northern Ireland? Each devolved Government are bound by law to observe the European convention in legislating within its competency. The Prime Minister has the unenviable task in trying to persuade the SNP, Labour in Wales and the diverse Northern Ireland Executive to bring forward legislative consent Motions, not to mention gaining the consent of the Irish Government. In the debate secured by my noble and learned friend Lord Wallace of Tankerness on 2 July last year, the noble Lord, Lord Faulks, said that the Government were,

“fully alive to the devolution dimension, and … will fully engage with the devolved Administrations and the Republic of Ireland in view of the relevant provisions of the … Good Friday … agreement ”. —[Official Report, 2/7/15; col. 2209.]

What consultations have taken place and what resolution of the difficulties has there been? I think that we ought to know.

CIA: Torture

Lord Thomas of Gresford Excerpts

Tuesday 16th December 2014 Lords Chamber

[Lord Avebury (LD)]

My Lords—

[Lord Thomas of Gresford (LD)]

My Lords—

[The Lord Privy Seal (Baroness Stowell of Beeston)]

The noble Lord, Lord Campbell-Savours, has been very patient. We will allow him to ask his question and then we should have time for at least one more noble Lord.

Hong Kong

Lord Thomas of Gresford Excerpts

Thursday 16th October 2014 Lords Chamber

[Lord Thomas of Gresford (LD)]

I recall the foreboding that I felt in the late spring of 1989 over the protests in Tiananmen Square. We know what happened. Although they enjoyed much popular support, the protests were suppressed. More than 300 people were killed and many more were injured and wounded. Foreign journalists were banned. Western Governments imposed economic sanctions and arms embargoes. I took part in the protest march around Causeway Bay and Happy Valley the following year on the first anniversary. That march still takes place.

There is no comparison between the freedoms enjoyed today in Hong Kong and the repressions of Beijing in 1989. First, there is freedom of assembly. It is true that on the 28 September, at the beginning of Occupy Central, the police used pepper spray, tear gas and batons to disperse the crowds, but the reaction was such that on the following day, the riot police were withdrawn. For two weeks, non-violent demonstrations were tolerated and spread. They spread to other parts. The only real threat of violence came from the triad groups in Mong Kok. There is an assumption that their involvement was encouraged by the authorities. That may or may not be true. Knowing something of these groups from practice in the criminal courts in Hong Kong, I had predicted they would get involved in any violence going—and indeed they did.

There have been isolated incidents as the police have this week removed barriers. On Wednesday last, some journalists complained of being punched and dragged by police officers in the Lung Wo Road. In the evening, Hong Kong police officers took the social worker Ken Tsang, a protest leader, to a quiet part of Tamar Park and beat him up. However, that has not been suppressed. Seven policemen have been suspended, the case has gone to the High Court for a mandatory injunction, the Independent Police Complaints Council has been informed and there have been protests by Amnesty International and the Hong Kong Bar Council, among others. In other words, the rule of law has been maintained and strengthened. There is freedom of speech, because all those events have been fully reported.

Indeed, the election of the next Chief Executive by universal suffrage in 2017 will be a significant step towards democratic government. Unfortunately, the Standing Committee of the National People’s Congress in Beijing has sought to set boundaries on the method of election: namely, as the noble Lord, Lord Luce, who must be congratulated on obtaining this debate, said, that there should be no more than two or three candidates; that they will be nominated by the nominating committee, and that each candidate’s nomination will require the consent of more than 50% of the committee, as opposed to the eighth of the membership of the committee when the previous Chief Executive was elected.

The present disturbances are fuelled not so much by demands for freedom, as in 1989, but by fears that the freedoms enjoyed by Hong Kong people might be taken away in future. Another factor is economic inequality. The World Bank has indicated that Hong Kong billionaires’ combined net worth equals 80% of the city’s gross domestic product. The disparity of wealth between richest and poorest as measured by the Gini coefficient is the greatest in Asia. The well educated young people on the streets of Hong Kong see no prospect of owning property themselves in the foreseeable future and fear that their interests are not represented at the decision-making level.

But as in Tiananmen Square, the protesters have no end game. They have made their point: that unless their views are considered, they have the capacity to disrupt the smooth running of the city. Today, they are still occupying 2.3 kilometres of the city’s streets. They should now hold back. Now is the time for compromise.

The Government themselves have been dilatory and entirely reactive. They are relying upon the protest movement losing public support, as people become increasingly irritated by the disruption of their livelihoods. Meetings with the Hong Kong Federation of Students have stalled. In the pending public consultation on the election process, the Hong Kong Government say that they will be seeking common ground and wish to forge consensus in a rational and pragmatic manner.

I suggest that these are the areas to be explored. First, can the nominating committee which chooses the candidates be elected to represent a broader spectrum of public opinion? At the moment, any prospective candidate is bound to tailor his platform towards the dominating business element. Secondly, is the new requirement that, to be nominated, a candidate must gain more than 50% support of the nominating committee desirable or sustainable? Thirdly, is there any justification for restricting the number of candidates to three? Fourthly, should political groupings be encouraged to put forward candidates for the committee to consider? A source of much friction in the current system is that a Chief Executive without a party behind him lacks political support in the legislature. At the Hong Kong Association luncheon at the Shard last Tuesday, I asked the Secretary for Justice, Mr Rimsky Yuen, about this. He said that there was no reason why they should not put forward candidates.

It would be timely for both the Chinese and the Hong Kong Governments to reassure Hong Kong that its freedoms, which now include free access to the internet and social communications such as Facebook, will be preserved. There is a Chinese saying that a strong flow of water should not be blocked but channelled. The Government might also consider Mr Gladstone’s precept: trust the people, do not fear the people. Hong Kong is never going to compromise its prosperity and security by electing a Chief Executive who is completely anti-Beijing. The grievances of these young people should be addressed. They should never be suppressed.

Syria and the Use of Chemical Weapons

Lord Thomas of Gresford Excerpts

Thursday 29th August 2013 Lords Chamber

[Lord Thomas of Gresford]

My Lords, the noble Lord, Lord Brennan, talked about the elimination of all chemical weapons. It is a chilling thought that the Syrian Arab Republic is one of only five states that have neither signed nor acceded to the Chemical Weapons Convention of 1992. The others are Somalia, North Korea, Angola and Egypt. Two states have signed but not ratified the convention: Myanmar and Israel. So there are two countries in close proximity, one of which has not signed or ratified the convention—Syria—and the other, Israel, that has not ratified it.

The prohibition of chemical weapons was not novel, even at the time of the Geneva Convention of 1925. The Brussels Convention of 1874 prohibited the employment of poison or poisoned weapons and the use of arms, projectiles or material to cause unnecessary suffering. Its aims were restated in 1899 in the Hague Convention, whose parties declared their agreement to abstain from the use of projectiles the sole object of which was the diffusion of asphyxiating or deleterious gases. Of course, that convention proved futile in the First World War, which resulted in 100,000 deaths and 1 million casualties from gas.

The 1925 convention was more successful. Many of us in this House may remember the constrictions on the cheeks and the smell of rubber from the wartime infant gas masks, some of which were bizarrely made to look like Mickey Mouse. We had cause to be thankful that gas, although expected, was not widely used—or used at all in the Second World War in the European theatre. But it was used by the Italians against the Ethiopians in 1936, by the Japanese against the Chinese in 1938 and of course, as many speakers have mentioned, in the Iraq/Iran war in the 1980s. There must be the gravest concern to ensure that it is not used in any Syrian conflict.

The noble and learned Lord, Lord Goldsmith, posed the question: what happened? We must find out not merely whether chemical weapons were used but exactly what happened. There are assertions in the document produced as the UK Government’s legal position which can be challenged. For example, it is said that the large-scale use of chemical weapons by the regime in a heavily populated area is a war crime, and it is likely that the regime will seek to use the weapons again. The question that must have occurred to your Lordships when we had news of these terrible events was why on earth would Assad, the president, use poison gas of some form or another when the United Nations investigators were actually there? Why would he do it?

The only solution I can think of is that somewhere below him in the chain of command some commander, maybe of a relatively junior rank to whom responsibility for guarding these weapons or using them had been delegated, had taken leave of his senses and employed them in the shocking way that we have heard. If that is so, what is our response to be? Is it without further investigation simply to bomb and shell or strike at targets in Syria with the inevitable consequence that innocent civilians would be killed?

I have heard Ministers, the Prime Minister and others say that it is all a question of judgment. But judgment normally follows the evidence. Judgment does not come first. A great deal more investigation must be undertaken into what happened to ascertain the facts before we can inflict on the population of Syria that which is proposed.

The responsibility to protect doctrine, which it is suggested was a cloak for the Government in earlier conflicts—and I will not go into that—is not a new idea. It has been at the heart of United Nations General Assembly discussions since 1946. The International Law Commission spent more than 70 years before the 2005 United Nations conference discussing the principles that should be applied. But it concluded, even after all its considerations in 2005, that the Security Council is still the only means through which a state can legally intervene in the affairs of another state. It is essential that, when the evidence is clear, the matter goes back to the Security Council because I believe that if the evidence is clear to the world all members of the Security Council will unite in their condemnation of something that has been recognised as abhorrent for getting on for 150 years.

Queen’s Speech

Lord Thomas of Gresford Excerpts

Monday 14th May 2012 Lords Chamber

[Lord Grocott]

My Lords, I thought that it would be helpful to today’s discussion if we cast our minds back a couple of weeks to the elections that took place across Britain. I am referring in particular to the elections regarding the 10 directly elected mayors. As the House will remember, the suggestion was that there should be 10 directly elected mayors in 10 of the great cities of Britain. This proposal was supported by the leadership of the three main political parties, which is always a rather worrying state of affairs. It was argued that it would be a far more democratic system that would provide greater accountability and represent change, and these days we are always in favour of change. I need hardly remind the House of the results of those elections by the good people of Birmingham, Coventry and sundry other cities. When presented with this proposition, roughly three-quarters of the electorate could barely stifle a yawn before they changed the subject. The quarter, roughly, who actually went to the polling station voted pretty overwhelmingly and, I am happy to say, nine out of 10 said, “No thank you very much. We don’t think our present system is broken. We will carry on as before”.

I will leave noble Lords to their own judgment as to the relevance of that to the discussion of Lords reform because so much is unknown about Lords reform, despite all the discussions we have had so far. We know that the Government will probably introduce a Bill, but we do not know whether the Bill will be largely the draft Bill or will be substantially changed in the light of the Select Committee’s report. We do not know when it will be introduced. We certainly do not know what its passage will show or whether or when it will reach this House. We do not know whether the Parliament Act will be applied, if necessary, and we do not know whether there will be a referendum at the end of everything.

There are a lot of do not knows, but I would like to put to the House something that I do know, I think. We cannot judge how the thing will end, but we can make a pretty educated guess on the direction of travel. I am sure that it is pretty much everyone’s experience, as well as mine, that the direction of travel on this debate about whether we should have an elected House has been slowly but inexorably moving towards those of us who say that an elected second Chamber would be bad for our constitution. If there is anyone around who previously thought that an appointed House along the present lines, but not quite, was a good idea, but who then read the draft Bill and thought, “Eureka! I used to favour an appointed House but, my word, this is a cracking little Bill and has certainly convinced me”—I have not met that person yet—perhaps they could drop a note to the Government because I am sure they would be very pleased to hear that.

I do not want to win this battle as, simply on the basis of procedural wrangles, it threatens to be deals between political parties or perhaps even between Front Benches. I want to win this argument because I want to see it concluded and put to bed for a very substantial period. It is very important that that happens. Perhaps I may be partisan because, obviously, the party I care about more than any other, and always have, is my dear old Labour Party. Should we win the next election, as I fervently hope, and should this attempt at Lords reform fail, I hope that we will not find ourselves mired in a commitment to introduce another Bill which will take an inordinate amount of time and trouble to no discernable benefit to the electorate. Perhaps I should remind those newer members of my party who seem to think that an elected second Chamber is in our DNA and is what the Labour Party has always believed in and campaigned for, that they do not have memories anything like as good as those of some of us on these Benches. I actually took the precaution—I never thought I would—of reading the 11 election manifestos of my dear old party since 1970. That is an arbitrary date, and was the first general election that I lost. Since 1970, there have been 11 general elections. Only twice did the Labour Party have a commitment to a directly elected second Chamber in its manifesto. Incidentally, we lost both those elections. I do not claim that there is a direct relationship between the two things but it may be worth a note of caution.

I commend to the House the reference to Lords reform in the 2005 general election manifesto. I expect the ears of my noble and learned friend Lord Falconer to prick up at this. The 2005 Labour manifesto said:

“Labour believes that a reformed Upper Chamber must be effective, legitimate and more representative without challenging the primacy of the House of Commons”.

I think that is a tremendous script and am sure my noble and learned friend Lord Falconer will also think so. We ought to; we wrote it.

Without being overconfident, I am confident about the way that things are progressing because I think we are winning the argument. I will not repeat points that have been made already but we have surely conclusively won the argument on powers. Clause 2 of the draft Bill is ridiculous. It just asserts the primacy of the House of Commons with absolutely no evidence to explain how that would be sustained. The Government have still failed to answer the question that others and I have put repeatedly in public—that is, parliamentary—and private meetings, which is simply this, on powers. If one House votes to go to war and the other House votes not to go to war, following a request from the Government for war powers, where on earth does that leave the Government?

It is no use saying that it works abroad. It is the weakest argument of the lot to say that things work in other systems overseas. For the most part, other systems overseas have written constitutions that precisely delineate the powers of the two Chambers. We are not in that position. We are in a position in which the two Chambers have pretty much the same kinds of powers, but most of the time this House simply decides not to exercise them to the full. That is why we have a good relationship between the two Chambers. Therefore, I will not trouble the House. The point about powers has been well argued already.

There has been no attempt to argue otherwise by the Government, or by the previous Government, under Jack Straw. I had the same sense of frustration arguing with Ministers then as I have now. They refused to address the problem, just saying, “Oh, we have the Parliament Act so everything will be all right”.

The other argument is more difficult but I think that those of us who are against a directly elected House have won it. It is the argument about democracy. I will not expand on this because no one could improve on the speech of the noble Lord, Lord Norton, on Thursday. He simply made the point, which I shall try to make in a sentence, that our democratic system depends on the people electing the Commons, the Commons determining the Government and the people being able to throw out the Government in a general election. To have a directly elected second Chamber would be an immediate and obvious threat to that core of the democratic legitimacy of our constitution. Therefore, I say quite confidently that a directly elected second Chamber would not enhance our democracy; it would damage it.

I put this as the final paradox. I was pleased when I realised that this was the case. The strongest—although not to me—and most frequently repeated argument that one hears from supporters of an elected House—

[Lord Thomas of Gresford]

The noble Lord referred to his party’s manifestos. In 1912, Keir Hardie and Arthur Henderson campaigned on the basis of the abolition of the House of Lords. The current policy, as enunciated by the noble Lord, Lord Hunt, is for 100% election. Just to clarify this, is the noble Lord saying that 1999 brought about the final apotheosis of the House of Lords and that it should remain in that form for ever?

[Lord Grocott]

The noble Lord tempts me down the line of being even more of a constitutional anorak than I am. I could read out for him, but I will not, the commitments of the Labour Party on Lords reform to sundry general elections over the years. There is no common pattern within it, except that quite frequently there is reference to controlling the powers of the second Chamber, but when it comes to composition, there has been absolutely no consistency. I am quite happy to put a copy of this deeply researched note in the Library should anyone wish to read it.

I come to what I think is the final paradox of where we are in Lords reform. It is interesting that I should have had an intervention from a Liberal Democrat because I have heard it said frequently that, somehow or other, an Act now on Lords reform would be the conclusion of a 100-years struggle—we have heard that previously, although I do not know who has been struggling but most of my constituents were not—started by that great Liberal Government of Asquith and Lloyd George, and that this is somehow a conclusion.

I ask the House to consider the following proposition. Were Lloyd George around today and sitting at the other end of the Chamber—we will call him Dave in order to keep it contemporary—his colleague alongside him might say, “Dave, have you seen this new Lords reform Bill?”. Lloyd George might say, “No, I haven’t seen it. What’s in it?”, and his colleague might say, “It’s a great Bill which makes the Lords more powerful and will enable them to throw out more Commons legislation. What is more, in due course it will be able to start blocking Budgets. What do you think of that?”. I do not think that David Lloyd George would be too struck with that proposition.

I say to the House that in terms of this simple proposition, which I hope does not sound too egotistical on the part of those of us who take this view, if any heirs to Lloyd George are sitting around in Parliament at the moment, they would be saying, “We are protecting the primacy of the House of Commons”. I am confident that that is what Lloyd George would want to see, were he here. It is certainly what I say and what most of my colleagues have been saying. I hope that the Government will listen to this and realise that it is not just a bad Bill, it is increasingly a friendless Bill. They would do themselves and the country a favour if they were simply to drop it.

--- Later in debate ---

[Lord Cormack]

I am most grateful. A couple of weeks ago, the noble Lord, Lord Morgan, asked his noble friend Lord Thomas of Gresford why Lloyd George—the hero of the noble Lord, Lord Ashdown—did not believe in an elected second Chamber. The noble Lord, Lord Thomas, could not answer that question. Can the noble Lord, Lord Ashdown, do so?

[Lord Thomas of Gresford]

I did answer that question. I said that Lloyd George was for the abolition of the House of Lords. “I am a single Chamber man”, he said—and in that he was assisted by Arthur Henderson and Keir Hardie.

[Lord Ashdown of Norton-sub-Hamdon]

I am grateful to my noble friend, but I do not want to talk about 1911—I want to talk about today. Democracy is on the march across the world, and you cannot keep it outside that door. In the end, you will be dragged there. Let me make this proposition to noble Lords: the longer they delay it, the more ridiculous they will look. That is where we are in the eyes of many of the public, 69% of whom want to see a directly elected Chamber. [Interruption.] I am grateful for any support I can get.

I want to answer a few of the arguments that have so far been put forward to prevent this happening, to delay it, and to make sure that we hang on to our seductive comforts for as long as we may. The first is the most ridiculous, but it featured in our previous debates and there were echoes of it on Thursday—that we are not a House of Parliament but a committee. Some committee! We are told that we are a monocameral Parliament, that all we do is advise and that this is just a committee. We are invited to believe, therefore, that when we met King John on the banks of the Thames nearly 1,000 years ago we were not beginning with a Magna Carta and Parliament but creating a committee—and that when we invite Her Majesty to come here all dressed up in her finery, accompanied by a company of the guards and a clatter of the Household Cavalry, to sit on the Throne and read the parliamentary programme for the future to your Lordships, who are dressed in red dressing gowns while the other Chamber has to come and parade before us, we are no more than a committee. That is a preposterous suggestion, and those who make it, as the noble Lord, Lord Richard, said in a previous debate, simply do not understand our history or function.

The argument that is made to bolster this claim is that we do not contribute to the making of laws. You cannot make that argument on the one hand and then claim, as my noble friend Lord Phillips did, that we have done our function because we have changed and passed so many laws. The truth of the matter is that we contribute to the making of the laws in this country. In a democracy, those who do the people’s business should be the people’s representatives. We are the daily affront to that basic principle. How can we be satisfied with that? It is a desperate and ludicrous argument that gives little comfort or respect to those who continue to seek to make it.

Big Society

Lord Thomas of Gresford Excerpts

Wednesday 2nd November 2011 Lords Chamber

[Lord Thomas of Gresford]

My Lords, when I was a very new, young and arrogant solicitor, I frequently appeared in the magistrates' court in the village of Ruabon in north-east Wales, an industrial part of Wales where coal was mined, steel was made, beer was brewed and chemicals were manufactured. I was always amused by the chairman of the local Bench, Lord Maelor, a former Member of this House, formerly Thomas Jones, the Labour Member for Merioneth. He lived all his life in nearby Ponciau, having worked down the pit as a young man. He later served as a non-combatant in the First World War. Indeed, he was imprisoned in Wormwood Scrubs for refusing to obey an order on the grounds of conscience. In court, he always went out of his way to identify the defendant who was before him: “Was his uncle a member of Capel Mawr?”, “Did he live on Gutter Hill or was it Y Ffennant?” and so on.

Lord Maelor taught me two lessons. The first was that order is preserved in a community not by the police, but by the people: the elders, the relations and the parents. By far the worst area for vandalism and crime in the area was the brand new housing estate, Plas Madoc. It was so new that only young married people or partners lived there. Though they had moved in from the settled villages around, there were no rules, no frowns and no social disciplines in their community. The second lesson he taught me was that he would give youngsters a chance, but would follow through his sentences by his deep involvement in the community and by his continuity in office. He was the one you would come back before if you breached the probation order he was always ready to hand out.

I have been greatly helped in preparing for this debate by a study carried out by Dr Jane Donoghue of the Centre for Criminology at Oxford, which was published only last Saturday, 29 October, as Anti-Social Behaviour, Community Engagement and the Judicial Role in England and Wales. I commend the study to the Minister. She points out that a central principle of the concept of the big society is co-production: how communities and individuals connect and come together to design and produce solutions to shared problems.

In the context of the magistrates’ court, the informal mechanisms of the past—that individual relationship between the magistrates and the community they serve—are of limited value in today’s world. It appears that training designed by Her Majesty’s Courts Service and the Judicial Studies Board in 2008 to support magistrates in community engagement has not been systematically implemented. Dr Donoghue’s research shows that for the most part magistrates’ involvement does not go beyond attending occasional meetings with their local ASB unit. The reverse side of that coin is that community groups have very little engagement with the courts. They live in two separate worlds.

Participants from all the 17 ASB units studied expressed their disappointment and concern that magistrates so rarely engaged with the local community, and argued that a culture change was necessary, where magistrates would be required to allocate time to listen to the concerns of the local community. Some said that the courts do not think about the impact of an ASB on a community, that they do not understand the effect of ASBs on certain areas and that the community has no confidence in magistrates or the courts.

On the other side, it seems that some magistrates worry about judicial independence. Dr Donoghue found that in one area magistrates discontinued an existing practice of making visits because they were concerned not to be seen to be influenced by local residents. In only one of the 17 areas studied was it felt that magistrates had a high level of engagement with the local community and were willing to talk to residents, attend local meetings and become involved in the life of the community.

The other problem identified by Dr Donoghue’s research was a lack of supervision. Ten of the areas studied had no experience of any kind of the supervision of court orders by magistrates or district judges. This was because there was a significant lack of continuity between repeat offenders and sentencers. It is highly unlikely that an offender in breach of an order will be seen more than once by the same magistrate or district judge. There is no formal system in place to ensure that an offender appears before the same sentencer in every court hearing related to their case.

Dr Donoghue’s conclusion is that most courts have not yet embedded into their structure the principles of community justice. Magistrates still see their role as adjudicators of fact and meters out of punishment and no more. If the concept of the big society is to have flesh put upon its skeleton, community engagement and problem solving in partnership with community groups and agencies should become a formal, standardised part of a magistrate’s training and part of continuing professional development for existing district judges and magistrates.

Nobody could ever question the commitment of Lord Maelor to his community, and the result was this: clear confidence and trust in the Ruabon magistrates’ court by the whole community. He did not sit above the throng; he was a part of it, and it was a pleasure to appear before him, as I have no doubt the noble Lord, Lord Elystan-Morgan, would confirm if he were here.