European Union (Withdrawal) Act 2018 (Relevant Court) (Retained EU Case Law) Regulations 2020

Lord Thomas of Gresford Excerpts

Wednesday 25th November 2020 Grand Committee

[The Deputy Chairman of Committees (Baroness McIntosh of Hudnall) (Lab)]

My Lords, I think a Division is about to be called and I therefore recommend that we do not call the noble Lord, Lord Thomas of Gresford, until after the Division in order not to have to interrupt him. Is the noble Lord content to wait until the Division has been completed?

[Lord Thomas of Gresford (LD) [V]]

Yes, I am content with that.

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[Lord Thomas of Gresford (LD) [V]]

My Lords, it is an allergy—an itch that has to be scratched. This bumbling Government are allergic to the very sound of the name “the European Court of Justice”. It sends a shiver down the spine—if they have one at all—of a significant section of the Conservative Party. I have never understood this, since, as I have pointed out on a number of previous occasions, the United Kingdom was remarkably successful in developing the procedures of that court and in conducting cases successfully before the court on behalf of the UK Government, with a success rate of over 90% of contested cases.

In 1966, Lord Gardiner, then Lord Chancellor, made a Statement on behalf of the Judicial Committee of the House of Lords to the effect that the committee was prepared to modify its previous practice and to depart from a previous decision when it appeared right to do so. He added the very important rider:

“In this connection they will bear in mind the danger of disturbing retrospectively the basis on which contracts, settlements of property and fiscal arrangements have been entered into and also the especial need for certainty as to the criminal law.”—[Official Report, 26/7/1966; col. 677.]


Some time ago the Minister told us that that Statement is well understood; I am not so sure that that is right.

That need for certainty could not be more important than in the context of commercial dealings between this country and the EU, over which we are agonising at this crucial time—this very day. Retained EU law will remain part of our domestic law after the transition period, in five or six weeks’ time. What could be more disturbing to contractual arrangements, trade and to prosperity than to have differing interpretations of the same provisions, set out in the same terms, in both UK domestic law and EU law as it is understood by our near neighbours?

I have direct experience of the way in which the Judicial Committee, now the Supreme Court, exercised its power to modify a previous decision. In 1982, I appeared for the appellant before the Judicial Committee in the case of Caldwell. My case was that recklessness as an ingredient of a criminal offence involved a subjective state of mind. My argument was defeated by 3:2 in the Judicial Committee on the basis that recklessness could be established objectively even if the defendant gave no thought at all to the risk. Lord Diplock delivered the majority opinion but Lord Edmund-Davies was on my side. The result of the case drew intense academic criticism, led by Professor Glanville Williams, whom some of us will remember with affection, if only for his magisterial textbook on the criminal law. Some 20 years went by, until in the case of R v G&R, the Judicial Committee reversed that decision. Lord Bingham, who delivered the unanimous opinion of the committee, said:

“Despite its power under Practice Statement … [1966] … to depart from its earlier decisions, the House should be very slow to do so, not least in a context such as this.”


However, to return to the present and being “reassured by the consultation”—I take it that that is a touch of wry Scots humour on the part of the Minister. From the Government’s point of view it was a complete failure. The Explanatory Memorandum shows that only 20% of the consultees agreed with this proposed extension of the power to depart from retained EU case law to other courts and tribunals. Further, only 9% believed that these proposals strike the right balance between legal certainty and the evolution of the law. Only 5% thought it maintained the necessary degree of predictability in the law and provided certainty.

On the contrary, a decisive majority of those consulted about the changes proposed in this statutory instrument were against any change at all, on the basis that it was a recipe for uncertainty. Why did the Government go on with this SI? Allergy—it is that nagging itch.

The clue to the problems which arise is in paragraph 7.4 of the Explanatory Memorandum, which states:

“Without the ability to depart from retained EU case law, there is a risk that retained EU law remains tied to an interpretation from the Court of Justice of the European Union that is arguably no longer appropriate in the UK.”


I stress “arguably”. I was wondering whether I should say anything adverse to this SI at all, since it will undoubtedly make good money for lawyers. The Minister will know that certainty of the law assists the settling of disputes without litigation. Uncertainty breeds litigation, from which, frequently, only the lawyers benefit. I would have thought that, under current practice, the Supreme Court’s power in the ultimate to depart from European case law would be more than enough to satisfy the Tory itch in the rare cases where the need for departure arises, but now litigants will argue at Court of Appeal level for a departure from settled EU case law. If the protagonist of a departure is successful, it is inevitable that the losing party will take the case for a final decision to the Supreme Court, which could hardly refuse leave to appeal if our Court of Appeal or its equivalent had introduced an ambiguity into the law. The changes will not reduce the burden on the Supreme Court, as has been suggested.

Whoever drafted this SI and the Explanatory Memorandum is not in touch with the real legal world, the world that responded to the consultation. Paragraph 10.9 of the memorandum states:

“The risk of driving large volumes of cases and legal uncertainty was the main reason cited in opposition to this proposed approach. It was also noted that the risk of divergence in decisions between jurisdictions was greater with this approach.”


The Bar Council submitted to the consultation that

“departing from the CJEU precedent is pointless unless the lower court has power to depart from the domestic precedent as well—but a power to depart from precedents set by high courts (or, in the case of the Court of Appeal, its own past judgments) would be a major disruption of the system of precedent on which legal certainty depends in a common-law system.”

In response, the Government have preferred specifically to stick with the current system of domestic precedent, thereby making the policy behind this SI, to quote the Bar Council, “pointless”.

Another area which introduces a sense of unreality is the courts to which this power to depart is extended. I know nothing of the land valuation court in Scotland nor am I anxious to know, but, as chair of the Association of Military Court Advocates, I cannot conceive how the decisions of the European Court of Justice are relevant to courts martial proceedings in any way whatever, yet the Court Martial Appeal Court heads the list. Was the drafter of this SI confusing the European Court of Human Rights, which has had a great deal to say on military justice and, as a result of its decisions, has considerably improved our system, with the European Court of Justice? It is frequently done. Perhaps the Minister can enlighten me. I do not suppose that he has, as yet, caught the itch.

Covert Human Intelligence Sources (Criminal Conduct) Bill

Lord Thomas of Gresford Excerpts

Committee stage & Committee: 1st sitting (Hansard) & Committee: 1st sitting (Hansard): House of Lords
Tuesday 24th November 2020 Lords Chamber

[Baroness Warsi (Con) [V]]

My Lords, I will speak to Amendments 3 and 5, to which I have added my name alongside those of the noble Baronesses, Lady Chakrabarti and Lady Ritchie of Downpatrick, and the noble Lord, Lord Paddick. As I said at Second Reading, no one can reject the importance of covert human intelligence sources or the need to protect them, and no one can doubt the importance of putting existing practices, the status quo, on a statutory footing. Existing practices, as far as they relate to the security services, have been part of security services guidelines for nearly a decade; they have served and continue to serve us well. I therefore support this Bill in principle, to the extent that we have a statutory basis for the current position. These amendments seek to do that without making all conduct lawful for all purposes and without granting absolute immunity, ensuring that victims, often innocent bystanders, are not left without any form of redress.

The amendments would preserve the current legal status quo. Those who are authorised to engage in criminal acts would not be rendered immune from either civil or criminal liability. Instead, the current public interest consideration not to prosecute, existing legal defences and any court considerations as to civil liability will remain. At Second Reading, the noble Baroness, Lady Chakrabarti, the noble Lord, Lord Paddick, and other noble Lords reminded the House of a fact that I hope my noble and learned friend the Minister will acknowledge, because it has been repeated in today’s debate; namely, that large numbers of individuals for whom this immunity and lack of appropriate safe- guards in legislation would operate as a carte blanche to commit offences—these covert human intelligence sources, these agents—are not in fact all trained security agency officers or undercover police, as the Bill has presented them. Many are criminals who are still engaged in criminality, because that is what allows them to inhabit the spaces where they can go unnoticed. They include, as was said at Second Reading,

“extremely troubled, volatile and vulnerable people, including children.”—[Official Report, 11/11/20; col. 1071.]

Even professional agents are not and should not be above scrutiny. They should remain, as they are now, incentivised to exercise their necessary criminal conduct responsibly. We are of course still in the midst of a public inquiry that is hearing how even professional covert human intelligence sources have succumbed to the abuse of authority and have even fallen into inciting rather than preventing crime. This Bill in its current format would have far-reaching consequences far beyond professional security services agents and trained undercover police officers. It therefore must not be presented by the Government in narrow terms, even if that is simply to win support for the Bill.

Examples have been given during the passage of the Bill that include criminal damage to premises and the personal property of innocent bystanders by those working, for example, for the Food Standards Agency at the less severe end, through to sexual offences by criminals posing as gang members at the other. Surely we cannot be comfortable about creating a culture of absolute immunity in this space, nor should we easily sweep away the protection currently afforded to victims of crime who currently have access to redress via criminal proceedings brought either through state or private prosecutions and civil action in the civil courts or an application for compensation through the Criminal Injuries Compensation Authority. An absolute immunity would sweep away all these protections, which I believe would leave us in breach of the European convention, which at Second Reading my noble friend said the Government were seeking not to do.

The four people who have put their name to these amendments are very different people, from very different parts of the United Kingdom, and indeed from different communities, different backgrounds and different political parties. This is not a party-political issue but a national interest issue. At any one time we are the custodians of the core values of our country, one of which is that the rule of law is essential. So I encourage my noble friends and colleagues to think again to ensure that the Bill seeks to put the current position on a statutory footing but does not extend ways which the Government have stated in the past are not their intent and would cut across the very British and indeed deeply conservative principle of our commitment to the rule of law.

[Lord Thomas of Gresford (LD) [V]]

My Lords, it is always a pleasure to follow the noble Baroness, Lady Warsi, and I share her abhorrence of the idea of absolute immunity, to which she spoke so eloquently. Over 800 years, we have evolved a system of dealing with crime in this country where the guilt or innocence of an individual is established by a tribunal of ordinary citizens. In serious crime we rely on a jury, and in lesser, summary offences on a magistracy drawn from the community. The standard of proof is high. So the outstanding feature of the British approach to criminal activity is that the ultimate decision on guilt and on punishment is not in the hands of an agent of a government department. The judge who presides over a trial in a serious case is fiercely independent. The prosecutor, as exemplified by the CPS and the Director of Public Prosecutions, is also independent of government. It is necessary to restate these principles when faced with a Bill such as this, where the proposition is that an agency of the state, whether the security services, the police or a gaggle of government agencies, should authorise criminal activity and can do so without any independent check.

We have to this point had such a check. Authorisation of criminal activity for the purposes of covert intelligence does not of itself relieve the individual of criminal liability. Whether an individual is prosecuted is a matter for the discretion of the CPS and ultimately the Director of Public Prosecutions. There is a further procedure where a covert intelligence gatherer is protected from the results of his criminality. Your Lordships may not be aware of the role of the brown envelope. Very often, when a person is an informer or is otherwise acting on behalf of the security services or the police, it is deemed necessary that he should stand his trial along with the people against whom he has informed, for the obvious reason of protecting his role and his safety. In such circumstances, a brown envelope will be handed to the judge out of court to inform him of the true position of the defendant and his motivation. Sometimes that will result in a reduced penalty and sometimes it results merely in the early release of the individual from whatever sentence of imprisonment is passed on him. To my mind, the system we operate at the moment gives greater protection to the individual and to the public while preserving a proper measure of control.

As for civil liabilities, it is clearly highly undesirable that a victim, whether direct or indirect, of the covert agent should have no remedy. Obviously, where an individual is authorised to engage in certain conduct that causes harm, he does not pay any damages himself; it is the state that stands behind him and pays the price. If this Bill means that no civil liability at all accrues to the covert agent, or to the state behind the covert agent, it is not the agent who will gain anything but the state. We will see when the overseas operations Bill comes before the House that the abolition of civil liability for the individual soldier’s acts benefits not him but the state, which pays the damages.

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[Baroness Ritchie of Downpatrick (Non-Afl) [V]]

My Lords, I support both amendments in this group; obviously, I particularly support Amendment 7, which is in my name. The effect of my amendment is that

“criminal conduct authorisations would not be encompassed by the provisions of section 27(3)”

of RIPA 2000, concerning conduct outside the UK.

Again, I come to this issue with experience from Northern Ireland. Human rights organisations, including the Committee on the Administration of Justice in Northern Ireland, are concerned about the extraterritorial reach of this Bill in terms of committing offences. There is a deep concern that, in addition to criminal conduct authorisations making criminal acts by an informant “lawful for all purposes”, the extraterritorial provision of Section 27(3) of the Regulation of Investigatory Powers Act 2000 could also apply—namely:

“The conduct that may be authorised under this Part includes conduct outside the United Kingdom.”


I urge the Minister to outline from the Dispatch Box whether this is the case.

If it is, MI5 could, for example, authorise from its Belfast base the conducting of a serious criminal offence by a paramilitary informant in the Republic of Ireland. That offence would be unlawful under UK law but clearly this would not change an act being a criminal offence under Irish law. In a recent parliamentary answer to a Member of the Dáil, the Irish Parliament, the relevant Justice Minister said that all persons in the jurisdiction—the Republic of Ireland—are fully subject to its laws and any evidence of a breach of criminal law will be fully pursued in the normal way by the relevant authorities. My amendment therefore seeks to disapply the provisions of Section 27(3) of RIPA, which expressly provides that conduct can be authorised outside the UK.

This raises a number of questions, which I asked at Second Reading but did not receive answers from the Minister. Perhaps she can provide them this evening. Will the UK authorities inform their Irish counterparts if they authorise a crime in their jurisdiction? If not, the UK will be secretly authorising criminal activity in the Irish jurisdiction. If the UK intends to notify the Irish authorities, will the Gardai—the Irish police—enforce Irish law and arrest the informant for the crime in question? If not, in essence, would the Irish authorities also be de facto legalising crimes authorised by the UK in the Irish jurisdiction?

Also, can the Minister confirm whether the UK consulted the Irish Government, and other Governments with whom it maintains diplomatic relations, on the content and implications of this Bill, including its direct association with other legislation? Were the Bill and its implications the subject of discussions at the last meeting between the Prime Minister and Taoiseach Micheál Martin earlier this year at Hillsborough?

I realise that Amendment 9, in the names of the noble Lord, Lord Paddick, and the noble Baroness, Lady Hamwee, is similar to mine. I support them on that because we cannot tolerate crimes outside the UK or the extraterritorial reach of such provisions. I therefore beg to move Amendment 7.

[Lord Thomas of Gresford (LD) [V]]

My Lords, obviously, a government agency cannot grant to an individual immunity from prosecution by a foreign power for offences committed on its soil—a point made strongly a moment ago by the noble Baroness, Lady Ritchie, who referred to the comments of a Minister in the Dáil. One understands the particular sensitivities in Ireland.

We are dealing with offences for which this country has extraterritorial jurisdiction, of which there are not many. At the moment, these offences consist of murder, manslaughter, crimes against humanity, torture and sexual offences where the victim of the crime is under 18. Under the Council of Europe’s Convention on preventing and combating violence against women and domestic violence—the Istanbul Convention—the Government, in a paper published on 17 August 2020, indicated that they will extend the jurisdiction of the courts of this country to sexual offences committed against persons over the age of 18 and to domestic abuse.

Given that that is the current extension of extraterritorial offences, I would like the Minister to outline which of them any government agency would authorise. A current highly offensive issue that has been referred to many times this afternoon is that of covert policemen entering into relationships with individuals from whom they seek to extract information or to ingratiate themselves with a group under surveillance. That amounts to the offence of sexual intercourse without consent—another definition of rape. Is there a licence to kill, effectively to rape or to torture in overseas jurisdictions? Should there be? Would we be happy to see such immunities enjoyed by agents of a foreign power in this country? I suspect not.

As for the protection of the European Convention on Human Rights, I recall from my experience in the Baha Mousa case the vociferous complaints made by Lieutenant-Colonel Nicholas Mercer, the senior legal adviser in Iraq in 2003, all the way to the top of the Ministry of Defence, against the torture of prisoners by hooding and the use of stress positions against prisoners. These matters had been outlawed in Ireland. He said such conduct was against the European convention and was told that the Attorney-General of the day had advised otherwise, and if he were right, the senior civil servant told him, he should be Attorney-General himself. Of course, the Supreme Court later held that Lieutenant-Colonel Mercer was right that the convention did apply. Right-wing elements on the Government Benches have grumbled ever since about “lawfare”. That is a fight for another day. Their argument that squaddies should be allowed to torture without risk of prosecution or civil liability is for a Bill which will soon be heading towards us. But does this Bill permit such conduct to be authorised for covert agents? I ask the Minister specifically to reply to that point.

[Baroness McIntosh of Pickering (Con)]

My Lords, I lend my support to Amendment 7 as a probing amendment, which was so eloquently moved by the noble Baroness, Lady Ritchie of Downpatrick. I have a very simple question for my noble friend Lady Williams. Is it an unintended consequence of the Bill that it may inadvertently have extraterritorial effects reaching beyond its original intention? That possibly goes to the heart of one of the conclusions of the legislative scrutiny performed by the Joint Committee on Human Rights, which says at paragraph 52:

“There appears to be no good reason why the Bill cannot state clearly that certain offences or categories of offences are incapable of authorisation.”


I therefore believe that the noble Baroness, Lady Ritchie of Downpatrick, has raised genuine issues of concern, as there are in Amendment 9, and I am sure that my noble friend will wish to put their minds at rest.

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[Lord Thomas of Gresford (LD) [V]]

My Lords, I have previously today made a case against permitting the authorisation of criminal conduct by an organ of the state without any independent check or oversight. The noble Lord, Lord Dubs, in introducing his amendment, referred to the Finucane case and the strong comments made by Desmond de Silva QC in his inquiry, calling for a strong framework of control.

This group of amendments puts forward alternative approaches. I prefer the approach of the noble Lord, Lord Dubs, which is simple and straightforward in operation. An application to a judge who is always available 24 hours a day for prior authorisation is, in my opinion, far preferable to the giving of notice after the authorisation has been made. The noble Lord, Lord Hain, strongly made that point. He pointed to the fact that the police being out of control in many ways lies behind the institution of the Mitting inquiry. He asks: who is the target, and why?

The noble Baroness, Lady Chakrabarti, referred obliquely in the debate on the second group today to concerns that this involves the judge, if he is approached, in the commission of a crime which has not yet happened. I disagree: the role of the judge—or, as the noble Lord, Lord Hain, would have it, the Secretary of State—is not to authorise the crime but to ensure that all the safeguards are in place against abuse of a necessary but dangerous tool in the detection of crime. That is an important part of the framework for which Desmond de Silva called.

After the event notice given to the Investigatory Powers Commissioner is proposed by the formidable array led by the noble Lord, Lord Anderson of Ipswich. The problem with their solution is that, in my view, it has no teeth. I listened to the noble Lord’s exposition. He thought that a decision referring to the authorisation of a CHIS depended on a close consideration of the character of the CHIS in the very difficult circumstances in which he might find himself. He said that it was too unpredictable and that he would not himself find it an easy decision to make. It would be an uncomfortable position. However, his proposal requires confidence that the security services, the police or other authorities will properly give a full explanation of what they have authorised to the IPC. This was an issue raised by my noble friend Lord Macdonald, as quoted by the noble Baroness, Lady Kennedy.

A case in 2019 showed that the intelligence services kept their errors secret. As Megan Goulding of Liberty said after the judgment,

“they’ve been trying to keep their really serious errors secret—secret from the security services watchdog, who’s supposed to know about them, secret from the Home Office, secret from the prime minister and secret from the public.”

The Investigatory Powers Commissioner, Lord Justice Adrian Fulford, a man of great integrity and experience, as I know, said that MI5 had a “historical lack of compliance” with the law. He said that the Security Service would be placed under greater scrutiny by judges when seeking warrants in future. He compared the service to a failing school which needed to be placed in “special measures”.

Amendment 47 in the names of my noble friends Lord Paddick and Lady Hamwee would indeed give teeth in that, if the commissioner is not satisfied with the authorisation, conduct will not be lawful and ultimately the Director of Public Prosecutions would become involved—that is if the model suggested by the noble Lord, Lord Anderson, received the favour of the Government. The reformulation of the Anderson amendment in Amendment 73 again has no teeth.

The refining of the amendment proposed by the noble Lord, Lord Dubs, put forward by the noble Baroness, Lady Kennedy of The Shaws, to appoint experienced judicial commissioners is preferable. Authorisation would require the approval of a judicial commissioner before it took effect. Further it ensures that the judicial commissioner has to be satisfied that there are reasonable grounds for the authorisation and it specifically contains the safeguard that conduct contrary to the European convention is not authorised. Since the Government suggest that the only control on the authorisation should simply be the convention rights granted by the ECHR, so that they are not broken, I cannot see what objection the Government could have to such a proposal. Of course, I believe it preferable to specify in the Bill the particular offences which cannot be authorised, but that is a matter for later argument.

[Lord Cormack (Con)]

My Lords, this is another fascinating debate. A number of your Lordships are seeking to put forward solutions to what I think is a gaping hole in the Bill. I was glad to add my name to the amendment tabled by the noble Lord, Lord Hain. We have had some powerful speeches not only from the noble Lord, Lord Hain, who speaks with truly unique personal experience as well as experience as a very accomplished Secretary of State, which I saw at first hand in Northern Ireland, but we have other suggestions put forward, most notably by the noble Lord, Lord Anderson, and the very powerful quartet of the noble Lords, Lord Anderson, Lord Butler of Brockwell and Lord Carlile, and the noble Baroness, Lady Manningham-Buller, and we heard a powerful speech a moment or two ago from the noble Lord, Lord Thomas of Gresford.

Fundamentally, what it comes down to is this: what we are doing in the Bill is giving authority for people to commit crimes. We all accept the basic necessity when it is a matter of national security. I am not convinced, and I will need a lot of convincing, that we have to give similar powers to the Environment Agency, the Competition and Markets Authority, the Financial Conduct Authority, the Food Standards Agency and the Gambling Commission. There are others on this list, such as the Serious Fraud Office, the National Crime Agency and the intelligence services, that one would approve, but wherever one is approving, one is giving potentially a vast range of people the authority to authorise crimes and to launch these agents into a world where they can do great damage to individual innocent people. We touched on this earlier when we talked about compensation.

I believe it is absolutely crucial that these permissions are not granted without the authority of a senior judicial figure or a Secretary of State. The argument in favour of a Secretary of State, made very pointedly by the noble Lord, Lord Hain, is that there is a degree of public accountability to Parliament for decisions that, one would hope, have been taken in good faith, but which may go wrong in a bad way. What we need is for my noble friend the Minister, and, doubtless, some of her ministerial colleagues, to sit down with those who have proposed these various amendments and try to come to agreement on an amendment for Report stage that the Government can back.

This Bill as it stands just will not do. It could be called the “carte blanche Bill”; in this field, that is not acceptable. I urge my noble friend when she replies to share some reflection on that idea. The noble Lords, Lord Anderson, Lord Butler of Brockwell, Lord Hain—all these people and others—have experience that they can draw upon and advice that they can proffer. We cannot have this Bill giving so many bodies authority to authorise the commission of crimes. I keep coming back to that, because that is what we are talking about. This has to be handled with firmness, sensitivity and, above all, the knowledge that the last thing we want to become is a state in which the police have virtually unbridled powers.

Police are public servants. We all honour them; we believe we are extremely fortunate in the quality of our police forces even though there have been some terrible recent examples, some of them talked about in this broad context by the noble Baroness, Lady Jones, a little while ago. At the moment—I have half-joked about this in the House recently—we are living in a benign police state where we can be prevented and fined for seeking to sit down with members of our family. It is all very serious, and underlines the seriousness of what this Bill is about.

I beg my noble friend to listen to those who have spoken with great experience and authority, putting forward ideas that are practical and workable; some doubtless better than others, but we must have a system where a person of real seniority, answerable for his or her decisions, can give the authorisation before the crime is committed.

Private International Law (Implementation of Agreements) Bill [HL]

Lord Thomas of Gresford Excerpts

Consideration of Commons amendments & Ping Pong (Hansard) & Ping Pong (Hansard): House of Lords
Thursday 19th November 2020 Lords Chamber

The present phrase has a certain bathetic quality about it, which the Minister has done a considerable amount to dispel. I repeat my welcome for that but I ask him to give the assurances requested by the noble Lords, Lord Marks and Lord Pannick. On that basis, the Bill would be on a sounder footing and those of us who had understandable concerns about it would, I hope, find them considerably alleviated.

[Lord Thomas of Gresford (LD) [V]]

My Lords, it is indeed a privilege to follow the magisterial and extensive exposition of the noble and learned Lord, Lord Mance, whose depth of experience and knowledge I defer to. He referred to the Bill as an intruder, which was an interesting description.

The Second Reading took place on 17 March, just at the beginning of lockdown. The noble and learned Lord, Lord Keen of Elie, outlined the wide scope of the issues raised by the Bill. He said:

“Without private international law agreements, UK businesses, individuals and families would struggle to resolve the challenges they face when dealing with cross-border legal disputes.”—[Official Report, 17/3/20; col. 1439.]


The Minister echoed that opening today but I was surprised when he suggested that the area of law was narrow. As we have heard from the noble Lord, Lord Berkeley, it may encompass disappearing railway carriages in Italy, which has an Agatha Christie ring about it.

The new clause inserted by the other place reflects that width. The Westminster Government or a devolved Government may, by regulation, implement any international agreement so far as it relates to private international law. Further, the appropriate national authority may, by regulation, apply any agreement between the different jurisdictions within the United Kingdom or give effect to any arrangements between the UK Government and the British Overseas Territories, the Isle of Man or the Channel Islands. The emphasis throughout is on any future agreement of whatever nature that involves private international law anywhere in the world or internally within the United Kingdom.

It would appear that the Government have listened to the many voices suggesting that these clauses are excessively wide. Consequently, in response, the Minister today introduced the outline of a sunset clause, limited in the first instance to five years. He said that the urgent need is “ to update the framework” lost by our leaving the EU. The principle that there should be a temporal limit to the exercise of these wide powers in the uncertainties of the present time is clearly a good one. Unfortunately, the Government have decided that, like the British Empire, the sun shall never set upon these provisions. That is the effect of granting power to extend the operative period, not just for a further period of five years but, under proposed new subsection (3D), to renew the power to extend the period indefinitely. It just keeps rolling along. That makes a mockery of a sunset clause; consequently, I am delighted to support the amendment in the name of the noble and learned Lord, Lord Falconer.

As I said at earlier stages of the Bill, our hugely unsatisfactory procedures for passing secondary legislation by resolution, whether affirmative or negative, may be tempered in the interests of democracy by consultation with interested parties. Amendment 4 pays lip service to that concept but, in effect, gives power to the Minister to choose whomsoever he thinks appropriate to consult. The wording is loose, such that although there is a duty to consult if the Minister thinks subjectively that there is nobody appropriate—as the noble Lord, Lord Pannick, said—he does not have to exercise that choice; or, as the noble and learned Lord, Lord Mance, said a moment ago, he could walk out into the street and consult someone.

The purpose of the amendment in the name of my noble friend Lord Marks of Henley-on-Thames is to bring some objectivity to the exercise. The Minister may be surprised to know that the shelf life of a Minister in this and the previous Government tends to be no more than two years, and that Secretaries of State come and go through the various offices of state without necessarily knowing anything at all about their work. As WS Gilbert put it over 100 years ago, the way to advancement may well be to polish up the brasses on the big front door of No. 10.

Consequently, it is only sensible to have the guiding hand of the head of the judiciary in the various jurisdictions. No doubt the Sir Humphreys of this world can suggest that the Secretary of State rounds up the usual suspects, but that is no substitute for the Lord Chief Justice and his peers, who have a lifetime of experience of the legal world and the whole of the judiciary to draw on for advice as to who the suspects should be. As the noble Lord, Lord Pannick, said, it is inconceivable that they should not be consulted in any event.

I support the amendment in the name of my noble friend Lord Marks and, in particular, his call for a full and transparent report on the fruits of the consultation.

[Lord Stewart of Dirleton (Con)]

My Lords, I begin by thanking noble Lords for their thoughtful and erudite contributions. I thank them also for their courteous and warm words of welcome to me at the Dispatch Box. I echo the words of the noble and learned Lord, Lord Falconer of Thoroton, in a phrase that I think will resonate with the entire House and with which none of us would disagree: our imperative is the preservation of this country’s good name and its standing in private international law matters.

The matters raised in the course of our discussions overlapped to some extent but I will, if I may, do my best to treat the contributions to the debate in the order in which they were made. First, I shall address the comments of the noble and learned Lord, Lord Falconer of Thoroton, in relation to Amendment 1C, which omits some text from my Amendment 1A, the effect of which would be to allow the sunset period—which my amendment allows to be extended for five years by affirmative statutory instrument—to be extended only once.

Rule of Law: Law Officers

Lord Thomas of Gresford Excerpts

Tuesday 15th September 2020 Lords Chamber

[Lord Keen of Elie (Con)]

I hope that the noble and learned Lord has not become unwell in view of the noises emanating from him—but, if he has, I wish him well for the future.

Let us be clear that we are in a situation where we have rights under an international treaty. Those rights include our response to any breach of obligations by the counterparty, be that a lack of good faith or such action as would fundamentally alter the obligations under the treaty, giving rise to a position—under Article 62 of the Vienna Convention—where we could withhold our operation of the treaty.

It has been suggested to me by no less a legal authority than the noble and learned Lord, Lord Falconer of Thoroton, that we can simply rely on Article 16. This has immense novelty value. The idea the Executive can enter into a treaty at the level of international law and then rely on that to displace primary legislation passed by the domestic Parliament is, I respectfully suggest, extraordinary. That requires these mechanisms in the UKIM Bill to address the contingency of a material breach that we need to address.

[Lord Thomas of Gresford (LD) [V]]

My Lords, the noble and learned Lord told the Scottish Public Law Group in Edinburgh in June 2018:

“If the rule of law is disrespected, and falls into disrepute, elected governments will not be able to govern effectively—any government is simply shooting itself in the foot if it undermines the rule of law.”


The contingent powers in this Bill to change the Northern Ireland protocol unilaterally trash the dispute resolution provisions in the treaty that Boris Johnson signed, and on any sensible reading undermine the rule of law, as Brandon Lewis candidly acknowledged. Will the Minister acknowledge that for him to promote their use by introducing a statutory instrument under these provisions in this House would violate his overarching duty under the Ministerial Code to comply with the law, including international law and treaty obligations, as the Court of Appeal found and as the noble and learned Lord is reported by the Guardian correctly to have advised the Prime Minister? Does he acknowledge that it would also violate the law officer’s oath that he took as Advocate-General of Scotland, and would be a gross dereliction of his duty?

[The Lord Speaker (Lord Fowler)]

It would be helpful if questions could be kept brief, in which case we might be able to get through the list. We are not doing too well so far.

Rape: Prosecutions and Convictions

Lord Thomas of Gresford Excerpts

Monday 14th September 2020 Lords Chamber

[Lord Keen of Elie (Con) [V]]

My Lords, there has been no material change to the CPS’s approach. The evidential stage of the code test remains as it was, despite some suggestions to the contrary. Indeed, the most recent inspectorate report, in 2019, observed that the code test was being applied correctly in 98% of cases. But I acknowledge that we face challenges in this area, and we are seeking to address them, as I say, by way of a joint inspectorate examination of the issue and a cross-government review of how we can improve matters.

[Lord Thomas of Gresford (LD) [V]]

First, the need for corroboration in rape cases was abolished; secondly, sentences were increased to a five-year minimum guideline; and then inquiries into the complainant’s character were forbidden. Then the defendant was barred from cross-examining in person, and video links kept the complainant out of the witness box. Recently, there was an exhortation that complainants are, prima facie, to be believed. Despite all this, conviction rates have fallen. Does the Minister agree that further reform should be evidence-based? Will the Ministry of Justice permit academics to look exceptionally into the way that real-life juries have reached their verdicts, whether guilty or not guilty, in a limited number of rape cases?

[Lord Keen of Elie (Con) [V]]

My Lords, the issue of engaging with juries about how they arrived at their verdicts is complex and difficult. To set a precedent there would be a material step. However, we recognise that it is necessary to address some of the ingrained misconceptions that still exist and persist around reporting these offences. We hope that, by doing that, we will improve outcomes overall.

Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975 (Amendment) (England and Wales) Order 2020

Lord Thomas of Gresford Excerpts

Thursday 10th September 2020 Lords Chamber

[Lord Thomas of Gresford (LD) [V]]

My Lords, it is a pleasure to follow the noble Baroness, Lady Sater, who has drawn upon her extensive experience in the juvenile courts to speak up for those who have turned their lives around. I fully support these two orders, but I cannot give the Government any credit for bringing them forward. My noble friend Lord Marks of Henley-on-Thames has pointed out that the Government are simply responding to the decision of the Supreme Court in the case of P, made nearly two years ago. It was a case that was fully contested by the Home Office all the way up to the Supreme Court. What it revealed was the rigidity of decision-making, the lack of discretion and the straitjacket within which these decisions were made.

My noble friend was also right to emphasise the importance of the human rights convention and judicial review as a remedy. This is the way in which these matters can be brought before the court. I remember the old days of writs of the Crown—certiorari, mandamus and so on. Judicial review has developed well from that and must be protected from all the voices that are now speaking against it.

I will not rehearse the facts of the particular case and the four people concerned in it because that has already been done. The outstanding matter for me is the triviality of the offences involved: the stealing of a sandwich, a fight between boys and so on. It is quite striking that the convictions were so trivial but that many years later the effects of the legislation could have such an overwhelming impact on the people concerned. The Supreme Court held that the multiple conviction rule was disproportionate and a breach of Article 8 of the European Convention on Human Rights, which protects the right to respect for private and family life. The same finding was made in respect of the disclosure of police reprimands given to young children. I can remember from my own youth being told off by a policeman for the way I was riding a bicycle—if I had thought that it was going to be brought up against me at some future time, I would have been very much more concerned than I was.

It should be appreciated that in the past five years alone, over 1 million youth criminal records have been disclosed on standard or enhanced criminal record checks relating to offences from more than 30 years ago—more than a million. While it is right that certain offences should be disclosed to employers, a fair system should not blight the lives of people who are trying to get on in life by disclosing warnings and reprimands or trivial convictions.

While I welcome these orders, consideration should be given to creating a distinct system for the disclosure of criminal records acquired in childhood. It is wrong that they should be carried forward indiscriminately into adulthood. I have two questions. I want to ask the Minister what filtering system exists that allows the consideration of applications for disclosure on a case-by-case basis. There have been calls from the Law Commission, the Justice Select Committee and others for a full review of the wider regime in order to determine whether the Rehabilitation of Offenders Act 1974 is fit for purpose. Will the Minister take steps to set up such a review and to deal with the disquiet that so many of us feel?

Rule of Law

Lord Thomas of Gresford Excerpts

Thursday 10th September 2020 Lords Chamber

[Lord Thomas of Gresford (LD) [V]]

Has a certificate such as the noble and learned Lord referred to a moment ago been given in relation to this Bill, suggesting that it does not comply with international obligations?

The Prime Minister persuaded the Queen to prorogue Parliament unlawfully a year ago, his chief adviser Cummings unlawfully broke the law on his Barnard Castle jaunt, and now the Prime Minister will ask the Queen to give her Royal Assent to what is effectively an unlawful Bill that quite deliberately breaks international law. The Tory shadow Counsel General in Wales, the highly respected David Melding, resigned yesterday, and the head of the Government’s legal service resigned two days ago. Having regard to the oaths of office to uphold the rule of law, why are the Lord Chancellor and the Attorney-General still in office, even if the noble and learned Lord himself clings to it?

[Lord Keen of Elie (Con) [V]]

My Lords, first of all, the Minister presenting this Bill has given a certificate of compatibility pursuant to the Human Rights Act; that has been done.

As regards the further issues raised, it will be for Parliament to determine whether, at the end of the day, it decides to pass this legislation. That is a matter for Parliament, and the Ministers have presented the Bill to Parliament for those purposes.

Fatal Accidents Act 1976 (Remedial) Order 2020

Lord Thomas of Gresford Excerpts

Thursday 3rd September 2020 Grand Committee

[Lord Thomas of Gresford (LD) [V]]

My Lords, I suppose I started off my professional career as a solicitor in the era of Lord Campbell’s Act of 1846 which contained no element in awards of damages equivalent to the Scottish solatium. The Scottish approach always recognised the grief that a death causes, exacerbated by the negligent act of an institution or an individual.

When the Fatal Accidents Act 1976 came into force, I was involved in personal injury litigation for both sides—that is, individual claimants and insurance companies. I certainly thought at the time that a lump sum by way of a bereavement award could never be an adequate or just measurement of grief. I have always been attracted to the Scottish system whereby this aspect of compensation is considered on a case-by-case basis. It is a question of principle. Indeed, in the field of criminal injuries compensation, the move from common law damages to a tariff system, effectively awarding lump sums for injuries regardless of individual circumstances, caused me to resign from the Criminal Injuries Compensation Board in the early 1990s.

It is in that context, therefore, that I must regard this remedial order as a small step in the right direction but no more. I concur completely with the Joint Committee on Human Rights’ excellent report that many other issues need further consideration. Since this particular case was concerned with the status of the claimant, the award of a lump sum for bereavement was not in issue and the court did not decide that a lump sum was incompatible with the convention. To change the system would therefore require primary legislation, as the Joint Committee and the noble Baroness in her introduction recognised.

In assessing pain and suffering as an element in an award for personal injury, the court is concerned with many factors, for example the extent and duration of the pain, the time taken for recovery, any permanent effect, previous state of health, age and domestic circumstances —a plethora of issues. All these are variable and are considered by a judge against guidelines that judges as a body have laid down and published. However, grief is a form of suffering and will vary from individual to individual. For example, the grief of a spouse in a happy and long-lasting marriage must surely be more intense than for a spouse where a marriage of short duration is on the brink of a divorce. It is not beyond the wit of a judge to recognise these differences.

The consequences of the lump sum approach to a bereavement award may be dramatic. For example, suppose two people are involved in an accident caused by the negligence of a third party, and one is killed and the other injured. The spouse of the deceased would receive a lump sum bereavement award regardless of circumstances while the injured person would receive as compensation for pain and suffering a sum carefully calculated with reference to the personal circumstances of that injured individual. The present lump sum system surely raises in the mind of the widow that the state values the life of her husband at a derisory sum. If she cannot substantiate a dependency award, so that is all she receives from the negligent defendant or his insurance company, that will seem all the more unjust.

While this issue is beyond the scope of this remedial order, it does raise the question of equal division of the lump sum between a spouse and a cohabitee, as the noble Baroness pointed out. The Government say in their Explanatory Memorandum that they wish to avoid “intrusive inquiries” into

“the respective merits of two eligible claimants.”

I cannot imagine a more likely source of conflict and bitterness on both sides than an equal division between a wife of many years standing and a cohabitee of just two years. Would such a conflict really be in the public interest?

APIL—the Association of Personal Injury Lawyers—has produced a useful briefing on this issue, referring to its Scottish experience where, as I have already said, the system is different. I certainly go along with the proposals that it makes. There is a need for a wider debate on awards in fatal accidents cases and I hope that it will take place.

Human Rights Act 1998 (Remedial) Order 2019

Lord Thomas of Gresford Excerpts

Thursday 3rd September 2020 Grand Committee

[Lord Thomas of Gresford (LD) [V]]

My Lords, I welcome this order with some reservations and queries. It is important that where the European Court of Human Rights has found that UK legislation is incompatible with the European convention, that incompatibility should be removed. The fact that parliamentary proceedings are required to do that should satisfy anyone who groans under the yoke of the European Court of Human Rights, and its judgments are not effective without the approval of the UK Parliament. However, I would like to raise three queries.

The first is the use of the Schedule 2 procedure in this instance. Section 10(2) of the Human Rights Act provides that a remedial order may be made to amend legislation to remove the incompatibility which has been found if the Minister of the Crown considers there are “compelling reasons” for proceeding under that section. Since the procedure can be used not only to amend primary legislation but to amend it retrospectively, as in this case, it is obvious that Parliament wishes to place some restriction on the Minister’s powers.

In this instance, paragraph 7.3 of the Explanatory Memorandum gives as the “compelling reason” that

“current pressure on the legislative timetable means there is little prospect of using primary legislation.”

That is the main reason given. It also states that

“the nature of the incompatibility contributes to there being compelling reasons for making the necessary legislative change swiftly.”

I rather doubt that. This order is retrospective, so I cannot see what need there is for speed.

Can the Minister confirm that there are a number of outstanding cases where claims for damages have been brought against courts or tribunals which would previously have been caught by Section 9(3) of the Act but which will be acceptable under this new remedial order? If there is not such a queue, how can the Minister justify the use of the word “swiftly”? There has not been a moment in the years I have been contributing in this House when the Government could not raise the excuse of “current pressure” on the legislative timetable.

My second query relates to the identity of the defendant in a case such as this, and that raises the question of judicial immunity. Mr Hammerton’s complaint was against the county court judge who failed to inquire about, let alone to grant him, legal representation in the proceedings in which he imprisoned him for contempt of court. Having succeeded on appeal in quashing that order of imprisonment, and having served his period of imprisonment, Mr Hammerton brought proceedings for damages in the High Court. He also had to apply for leave to bring proceedings out of time. The report does not make it clear whether the judge personally was the defendant or whether the proceedings were brought against the county court in which the judge sat. Section 6(1) of the Human Rights Act states:

“It is unlawful for a public authority to act in a way which is incompatible with a Convention right.”


Subsection (3) defines a public authority as including,

“a court or tribunal, and … any person certain of whose functions are functions of a public nature.”

Of course that could include a judge.

For the purpose of clarity, and considering the question of judicial immunity, can the judge be sued personally for a breach of convention rights, such as here, and is he personally liable for damages? I assume that the policy behind Section 9(3), as it stood, was to protect the judge personally, provided he acted in good faith. It is conceivable that a judge—perhaps it was more likely in the past than it is today—might act so outrageously as to lose any claim to be acting in good faith.

Finally, having regard to the findings of the Court of Appeal in the Hammerton case, are civil judges routinely instructed on their powers of imprisonment or of punishment in contempt of court cases? Certainly judges and magistrates in the criminal courts are made fully aware, time and again, in lectures and communications, of their powers and their responsibilities where any question of imprisonment arises. A magistrate would have immediately appreciated the problem had he been present. It was a very basic error for the judge to use his power to imprison without even inquiring whether Mr Hammerton had legal advice and assistance.

[Lord Parkinson of Whitley Bay (Con)]

My Lords, I am sorry to interrupt the noble Lord, but we are quite tight on time and we are close to time already.

Royal Commission on Criminal Justice

Lord Thomas of Gresford Excerpts

Wednesday 15th July 2020 Lords Chamber

[Lord Keen of Elie]

My Lords, we are looking at all the matters addressed by the noble Baroness and we have taken steps to open additional courts across the country. We continue with that endeavour to address the backlog of cases that has emerged since the pandemic.

[Lord Thomas of Gresford (LD) [V]]

My Lords, I am aware that soundings have been taken as to the introduction of smaller juries in criminal cases. Whether this is to deal with the pandemic or the backlog of trials, or is for the long term, is it not precisely the sort of issue which a royal commission should discuss publicly and openly before a decision is made?