Private International Law (Implementation of Agreements) Bill [HL]
Lord Thomas of Gresford ExcerptsWednesday 13th May 2020
(4 years ago)
Lords ChamberRead Full debate Private International Law (Implementation of Agreements) Act 2020 View all Private International Law (Implementation of Agreements) Act 2020 Debates Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: HL Bill 101-I Marshalled list for Virtual Committee - (7 May 2020)
Lord Mance
Yes, it is very helpful. Have I started addressing Amendment 3 by mistake? I certainly did not intend to. I want to address Amendment 11, which seeks to include the words “or arbitral award” in the definition of private international law.
As I said, I declare an interest as an arbitrator. Perhaps I might mention that, although I may not speak on this, I chair the Lord Chancellor’s Advisory Committee on Private International Law, which is referred to later, in proposed Amendment 20. I assure the Committee that that committee had nothing to do with that amendment.
To go back to arbitral awards, the recognition of arbitration clauses and the enforcement of arbitral awards are matters governed by special international agreements, most notably the highly successful 1958 New York convention and the 1966 International Centre for the Settlement of Investment Disputes convention, also known as the World Bank convention. The current Brussels regime, the Lugano convention, the Hague Convention on Choice of Court Agreements and the 2019 Hague Convention are all extremely careful to exclude arbitration expressly. But this definition for some reason includes it. One of the virtues of the 2012 recast of Brussels 1 was to reinforce that exclusion still further. London is a world centre of arbitration, and there would be concern about any suggested intervention by delegated legislation.
The inclusion of a reference to an “arbitral award” is therefore inappropriate and will arouse concern. It will also raise the further question: if arbitral awards are within private international law, what about international agreements on the jurisdiction of arbitrators? Is the word “jurisdiction” in Clause 2(7)(a) to be interpreted as enabling delegated legislation about arbitral jurisdiction?
The response at Second Reading from the noble and learned Lord, Lord Keen, was not comforting. He said:
“We do not intend to intrude wholesale on the New York convention or other aspects of arbitration, but it might be that there will be bilateral or multilateral … issues where a party wishes to refer to arbitration … we will want to have the power to proceed with such an agreement.”—[Official Report, 17/3/20; col. 1451.]
On the face of it, that suggests that, so far as the Government have any clear conception of why these words are there, they would cover jurisdictional issues—in other words, issues about where a party wishes to refer to arbitration and not just the recognition and enforcement of arbitral awards. That is an unwise and unnecessary indication of possible future interference by international agreement and delegated legislation in one of this country’s more successful export activities.
Surely the better approach is: if it ain’t broke, don’t fix it. If, at the international level, the New York or ICSID convention is supplemented, their domestic implementation should be by primary legislation, as it currently is under the Arbitration Act 1996 and the Arbitration (International Investment Disputes) Act 1966.
Finally, on Amendment 16, I endorse what has been said by my noble friend Lord Anderson and the noble and learned Lord, Lord Falconer. Admirable though they may be, model laws do not have the same status as international agreements and frequently need close attention before domestic implementation.
Lord Thomas of Gresford (LD)
My Lords, in his letter of 19 April in response to the report of the Delegated Powers Committee, the Minister said:
“The Committee’s Report implies that the power in clause 2 of the Bill would allow the Government to implement agreements on any aspect of private law with a foreign element, rather than merely agreements on the much narrower subject area of private international law, as defined by clause 2(7) of the Bill. … It will not be possible for matters outside of the areas indicated by the definition of ‘private international law’ in clause 2(7) to be implemented using the power.”
The Minister echoed what was set out in paragraph 7 of the Explanatory Notes, which state:
“PIL agreements cover a discrete area of law that is narrowly defined.”
One would therefore have expected that the interpretation of Clause 2(7) to be narrowly defined, but as the noble and learned Lord, Lord Falconer, pointed out, there is a width and uncertainty about these provisions that really do not follow the expressions being used.
For example, the definition clause for “international agreement”, which Amendment 9 deals with, includes,
“an agreement to which the UK is, or is expected to become, a party.”
What does that mean? Does that mean that legislation will be brought forward under these provisions and regulations brought forward in respect of an agreement to which we are not a party? As the noble and learned Lord, Lord Falconer, pointed out, what happens if the agreement is not ultimately made and the negotiations fall through? We would then, presumably, have regulations on the statute book dealing with an agreement to which we were not a party.
The definition of “private international law” is also contained in that same subsection, and Amendments 10, 12 and 13 demonstrate the loose wording that is used in case anything has been missed. That is rather typical of the drafting of the legislation. It is so drafted that anything can be bought in and the door is kept open. For example, it includes “rules and other provisions”, and there is to be co-operation in relation to the
“service of documents, taking of evidence and other procedures”
not defined. Paragraph (c)(ii) deals with
“anything within paragraphs (a) and (b).”
It is so loose and ill-defined.
So the purpose of the amendment moved by the noble and learned Lord, Lord Falconer, is to define the scope of regulation-making powers of the Bill so that the regulations should be confined exclusively to the field of private international law. Any provisions that trespass into any other territory could not be incorporated into domestic law by these regulations. I wholly support what he says about that.
I also support what was said by the noble and learned Lord, Lord Manse, on arbitral awards and model laws.
But I am interested in Amendment 6. Perhaps the Minister will share his thoughts about any proposed regulations concerning legal aid. What proceedings in the field of private international law does he envisage? To what is this directed? Would these be additional provisions to existing legal aid regulations? Would there be more hoops or fewer? Would there be more generous or less generous provision, and in what fields?
Lord Keen of Elie
My Lords, I begin with Amendment 2, which as the noble and learned Lord, Lord Falconer, noted, would seek to limit the scope of the Clause 2 power to implement agreements to those that relate exclusively to private international law, whereas of course in its present form of drafting it is clearly intended to extend to the implementation of private international law provisions in wider agreements. In previous correspondence, as noted by the noble and learned Lord, Lord Mance, I referred, as an example, to the jurisdiction of the provisions of the 1961 Warsaw Convention, which is concerned with international carriage by air. The point made by the noble and learned Lord, Lord Mance, was: why would you seek a power to implement such a private international law provision outwith the wider terms of the relevant international agreement? There may be some force in that point. It is one that I would like to consider further, and I will do so before we reach Report.
Amendment 6, which was just referred to by noble Lords, seeks to remove legal aid from the scope of the matters about which Clause 2 regulations can make provision. In the light of the observations of the noble Lord, Lord Thomas, perhaps I should explain that the Bill as presently drafted does not expressly include legal aid in the scope of the definition of private international law. However, under Clause 2(5)(c), it allows for regulations that implement or apply a private international law agreement to make provision for legal aid. This would mean that, where a private international law agreement to which the UK chose to become a party included obligations in relation to legal aid, those could be given domestic effect through Clause 2 regulations.
The reason for that approach to the matter of private international law and legal aid in the Bill is that, although there is some doubt about whether legal aid is typically encompassed in the scope of what is referred to as private international law as generally understood by practitioners and academics, there are circumstances in which a private international law agreement could contain specific legal aid provisions. This normally arises, as one might expect, in the field of family law. For example, there is a requirement in the 1980 Hague Convention on international child abduction for a contracting state to apply the same legal aid rules to citizens of, and persons habitually resident in, other contracting states in matters covered by the convention as it would to its own citizens and residents. It is therefore the Government’s view that, should similar conventions arise in the future providing for critical cross-border co-operation in matters of private international law, it would be unfortunate if there were to be a delay in people benefiting from the provisions of such an important convention.
Where a private international law agreement imposes requirements relating to legal aid that go beyond the sorts of areas for which the United Kingdom Government currently provide such funding domestically, we would need to think very carefully before proceeding. However, the normal process of consultation during the development of, and before taking the international steps to join, a convention of this nature would provide an opportunity for consideration of any legal aid implications.
In short, the amendment would create unhelpful doubt around whether the Clause 2 power could be used to implement a private international law agreement that included provisions relating to legal aid, and indeed it might even render that impossible.
Amendment 9 seeks to restrict the Clause 2 power to implement in domestic law only the private international law agreements to which the UK is already a contracting party and nothing further. It will not be possible for the Government to take the final steps necessary under international law for the United Kingdom to become bound by a new agreement in this area, such as depositing an instrument of ratification, because, in order to do that, the necessary implementing legislation must already have been made and, as a result of this amendment, it would need a different legislative vehicle.
Lord Thomas of Gresford
My Lords, I am of course speaking as a Welshman. We have a very limited interest in the provisions being discussed, but I have some questions. Since the time of Henry VIII, who has a great deal to answer for, the jurisdiction of England and Wales has been merged. Only in very recent years has there been a suggestion that Wales should have its separate jurisdiction. We are one of the three jurisdictions that will be subject to the Bill’s provisions; we go along with England. I would like to know whether there is any prospect of consultation with Welsh Ministers about what provisions are being brought into effect, because private international law covers such a wide range of things. It has particular relevance to family life in Wales as much as anywhere else. Will there be any consultation? If so, what will it be?
Lord Falconer of Thoroton
I simply underline the points made by my noble friend Lord Foulkes and the noble and learned Lords, Lord Wallace and Lord Hope. As far as my noble friend Lord Foulkes is concerned, the purpose of these amendments is to probe; as far as I am concerned, they illustrate the lack of thought that has gone into Clause 2. They simply underline the sense that there should not be a Clause 2.
Lord Thomas of Gresford
My Lords, I have nothing to add to the points succinctly made by the noble Lord, Lord Foulkes.
Baroness Jones of Moulsecoomb (GP)
My Lords, like the noble Baroness, Lady Taylor, and the noble Lord, Lord Foulkes, I am not a lawyer, but I care about democracy and I care very much that if the Government make promises, they should actually deliver on them. Clause 2 is a case of the Government reneging on promises made only last year. I voice my concern about Clause 2, which would allow Ministers to subjugate our national law to international agreements and the jurisdiction of foreign courts, with minimal parliamentary scrutiny from people such as noble Lords, who actually know what they are talking about.
Last year, the Government promised us that we would take back control of our laws and our courts; there was no caveat that we would then delegate our laws to international organisations with nothing more than a tick-box exercise by Parliament. The clause gives far too much power to international trade organisations and allows model laws to be imposed on us at the whim of a trade Minister.
I am also concerned that this measure would be better addressed in the Trade Bill, so that we could develop a comprehensive and coherent system of scrutiny for agreements relating to international trade. Otherwise, we end up with different scrutiny arrangements for trade agreements and the private international law agreements that might go alongside them. Will the Minister please explain how this clause fits with the Government’s promise of Parliament taking back control of our laws and courts? I look forward to Report and the vote that I am positive will happen.
Lord Thomas of Gresford
Two questions arise when laws are made by secondary legislation: is there democratic legitimacy and has there been proper scrutiny? If private international law raised simply technical issues, that might be less important. But as has been said so often today, private international law raises a wide of range of matters; in particular, family law issues, where basic human rights are frequently involved.
On parliamentary scrutiny, the Minister referred to the ample opportunity for debate in the affirmative procedure. We all know about the affirmative procedure. It is a yes/no question, as the noble and learned Lord, Lord Goldsmith, pointed out a moment ago. The matters before the House cannot be amended and frequently, nothing happens as a result of any Motion that may be moved in opposition. If it is Her Majesty’s Opposition’s policy not to vote in favour of a fatal amendment, the whole process is completely nugatory. I have heard Labour Whips tell their members not to vote in the case of a fatal amendment simply for that reason alone. Their turn will come.
The affirmative procedure is not in any way proper parliamentary scrutiny. Scrutiny under the Constitutional Reform and Governance Act 2010 has proved to be a non-event. It has already been quoted, but I will do so again: the Constitution Committee referred to that procedure being “limited and flawed” and indeed never properly applied.
It could be said that you can have democratic legitimacy providing there is direct participation in the legislative process by means of consultation. It is very noticeable that in this Bill there is no provision for consultation. Schedule 6 is devoid of any mention of it. That gives an opportunity for those affected by legislation directly to influence its content. Consultation is not everything: it has its problems. There are issues, for example, about the quality of the consultation document. That document may not reach the hands of everybody who is affected. The choice of who gets the document will be with the Government. Organisations or individuals may not have the time or the skills to deal with it. Strong groups who are well organised may have a disproportionate influence in the consultation process. It is of course useless, unless the Government are prepared to take the views of the consultees into account.
Legal Services Act 2007 (Approved Regulator) Order 2020
Lord Thomas of Gresford Excerpts(4 years, 2 months ago)
Grand CommitteeRead Full debate Read Hansard Text Read Debate Ministerial Extracts
The Advocate-General for Scotland (Lord Keen of Elie) (Con)
My Lords, I venture to suggest that this order is straightforward and uncontroversial. It designates the Institute of Chartered Accountants in England and Wales—for ease, I will refer to it the institute—as an approved regulator under the Legal Services Act 2007 for the reserved legal activity of the administration of oaths.
In summary, the order, if approved, will allow the institute to authorise and regulate individuals and firms administrating oaths within the scope of the Commissioners for Oaths Act 1889, the Commissioners for Oaths Act 1891 and the Stamp Duties Management Act 1891.
As the Committee is aware, the Legal Services 2007 Act defines six reserved legal activities, which only individuals and firms regulated by one of the 11 approved legal regulators can provide to the public. The administration of oaths is one of these activities.
The institute is already an approved regulator and licensing authority under the 2007 Act, but only in respect of probate activities, which is also a reserved legal activity. It regulates more than 300 firms providing probate services and wishes to expand the range of legal services its members can provide. As such, it made the required application to the Legal Services Board, seeking to expand its functions. Following a recommendation from the Legal Services Board, the then Lord Chancellor confirmed in May 2019 that he agreed to make an order to designate the institute as an approved regulator for the reserved legal activity of the administration of oaths. It is envisaged that expanding the institute’s remit will improve consumer choice, enhance competition and enable firms who are regulated by the institute to expand their practice.
This order fulfils the statutory objectives in the Legal Services Act 2007 and is supportive of better regulation in the consumer and public interest. I commend the draft order to the Committee.
Lord Thomas of Gresford (LD)
My Lords, as the noble and learned Lord, Lord Keen, has just pointed out, this is uncontroversial. I have no objection to it. It took me back to my years as an articled clerk in the late 1950s and early 1960s when the perk that one had was to take clients to another solicitor who would administer an oath on probate papers. This would cost the individual 10 guineas, and the shillings in those guineas were for me. There were only 10 shillings, but at a time when I was earning £4 a week, which was extended to £5 a week when I got married, that was quite a considerable sum.
Legal Services Act 2007 (Chartered Institute of Legal Executives) (Appeals from Licensing Authority Decisions) Order 2020
Lord Thomas of Gresford Excerpts(4 years, 2 months ago)
Grand CommitteeRead Full debate Read Hansard Text Read Debate Ministerial Extracts
The Advocate-General for Scotland (Lord Keen of Elie) (Con)
My Lords, I venture that this is also a straightforward and, I hope, uncontroversial measure. The order relates to the functions of the Chartered Institute of Legal Executives which, for ease, I will refer to as CILEx. In summary, the order—if approved—enables the First-tier Tribunal to hear and determine appeals against CILEx in its role as a licensing authority.
As the Committee is aware, the Legal Services Act 2007 defines six reserved legal activities that only individuals and firms regulated by one of the approved regulators can provide to the public. CILEx is an experienced regulator under the 2007 Act and authorises and regulates individuals and firms in respect of five of the six reserved legal activities: the conduct of litigation, rights of audience, reserved instrument activities, probate activities and the administration of oaths. In February last year, an order designated CILEx as a licensing authority as well as an approved regulator. This meant that, as well as regulating individuals and firms, it can now license alternative business structures. ABSs are legal firms that are partly or wholly owned or controlled by non-lawyers. They were introduced by the 2007 Act to encourage competition by allowing, for the first time, lawyers to join with non-lawyers, for example accountants, to raise external capital. Notable ABSs include Co-op Legal Services and the big four accountancy firms.
ABSs have been permitted by the Legal Services Act 2007 since October 2011, and there are now over 1,300 in England and Wales. Most of the other legal services regulators, including the Law Society and the Bar Council, are already licensing authorities. The 2007 Act stipulates that there must be an independent body to determine appeals against decisions of licensing authorities, and this order enables the General Regulatory Chamber of the First-tier Tribunal to fulfil this role.
Over the last 12 months, since CILEx became a licensing authority, there has been an interim appeals procedure—agreed by the Legal Services Board—in place. However, it is more appropriate that the First-tier Tribunal determines any appeals against CILEx in its role as a licensing authority. The First-tier Tribunal has judges with experience in considering regulatory appeals.
Furthermore, similar orders have been made in the past in respect of appeals against decisions of the Bar Standards Board, the Council for Licensed Conveyancers, the Chartered Institute of Patent Attorneys, the Chartered Institute of Trade Mark Attorneys and the Institute of Chartered Accountants in England and Wales, when they are each designated as licensing authorities.
I assure the Committee that, although Her Majesty’s Courts & Tribunals Service will face additional costs associated with the potential increase in cases to be determined by the First-tier Tribunal, CILEx will meet the set-up and operating costs, so there will be no net financial impact on the public sector.
In conclusion, this statutory instrument is necessary to regulate better in the consumer and public interest. I commend the draft order to the Committee.
Lord Thomas of Gresford (LD)
My Lords, I support the order. I declare an interest in that a close family member is a judge in the First-tier Tribunal—but not, I believe, in the General Regulatory Chamber.
I have been a strong supporter of CILEx from its inception. Indeed, I addressed some of its early conferences due to, as I mentioned in relation to the previous order, my experience 50 years ago of the integrity and probity of legal executives who needed a body to represent their interests in the way that that has happened. I am delighted to see that it has been given this particular power. The strange thing is that there was a temporary appeals provision with a panel set up by CILEx itself; clearly that was unsatisfactory. Far better that it should go through the tribunals system. What are the fees of the tribunal likely to be? Will they be more expensive than the present appeals system, unsatisfactory as it is?
Baroness Chakrabarti (Lab)
My Lords, again I will be completely uncontroversial, and I can be very succinct: the First-tier Tribunal is undoubtedly more appropriate than the interim arrangement.
Sentencing (Pre-consolidation Amendments) Bill [HL] (Law Commission Bill)
Lord Thomas of Gresford ExcerptsTuesday 11th February 2020
(4 years, 3 months ago)
Lords ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Lord Thomas of Gresford (LD)
My Lords, I am looking forward very much to the maiden speech of the noble and learned Baroness, Lady Hallett. Like myself, she is of a police family and a veteran of the criminal Bar, although she subsequently rose to dizzying heights that I never attained on the Bench. We need her contribution at this time, and no doubt in the future.
As the noble and learned Lord, Lord Judge, said, the Bill was pored over in the last Parliament. I have little to add generally, save to welcome it as a precursor to the sentencing Bill. The Leader of the House in another place has promised us that Bill in this Session. I assume that the sentencing Bill will introduce the excellent sentencing code, and I too congratulate the Law Commission and parliamentary counsel for the years of expert work that they have done in producing it.
I am grateful to the Minister for his letters of 23 October and 5 February. In his first letter, he informed me that work was continuing to include Armed Forces sentencing law in the code, and the new provisions in this Bill do indeed include tidying up pre-consolidation amendments. As chair of the Association of Military Court Advocates, I naturally have an interest in this area, and my comments will be directed to that.
The Law Commission, in paragraph 3.23 of its report, had decided that, by reason of pressure on resources, it was unable to draft the necessary amendments to the sentencing code to apply it to the service jurisdiction within the timeframe of this project. It also pointed out that the application of the code to the service jurisdiction could be achieved by way of the next Armed Forces Act, which must be passed before the end of 2021. It noted the ongoing review of military justice, the report of which will no doubt be published shortly. Is it now intended that the sentencing code will be brought to bear on courts martial in the sentencing Bill, or will the Government wait for the review report and for the Armed Forces Bill to be brought forward in 2021?
I thoroughly approve of the “clean sweep” principle, not least in connection with service criminal law. Service law and procedure have been built up piecemeal. I want to make some comments about an important procedural issue which in my view has gathered barnacles and needs to be challenged in the light of the Law Commission’s report. It is the current sentencing role of a court martial panel, against which I have argued on previous Armed Forces Bills. I take my text from the Law Commission’s report itself, paragraph 1.16 of which states that
“the law governing sentencing procedure is complex, difficult to locate, and difficult to understand, even for experienced judges and practitioners.”
The services, as represented in Parliament, have always been proud and protective of the military justice system. In history, there is not much to be proud of. In the 18th century, general courts martial, before a panel of 13, followed the rudiments of a trial as in a civilian court. Regimental courts martial, on the other hand, before five or three officers, were much easier to summon and consequently more popular with authority. They were, however, much more informal. Witnesses did not give evidence on oath, and severe and unusual punishments were meted out. An example was the wooden horse. This instrument, invented by the Inquisition, resembled a carpenter’s sawhorse standing on four legs, save that the crossbar was not flat but a triangle, the upper point of which was suitably shaved to a sharp edge. The convicted soldier had to sit astride the horse on this edge for the prescribed period, elevated in the air, often with weights tied to his legs to increase the pain and add to the injury.
Records were generally not kept, but a fragment has survived from 1722. Within a five-week period, seven prisoners were sentenced to the wooden horse, some for insolence to an officer, others for going out of camp. Another punishment popular with these regimental courts martial, also recorded in this 1722 fragment, was running the gauntlet. The prisoner would be lashed by a company of soldiers drawn up in two files through which he would be slowly marched, an officer in front of him with his sword pointed backwards and another behind with his sword pointed forward. It could be lethal. Another case is recorded in that fragment where the prisoner was found to have absented himself from guard duty, his punishment being to have his neck and heels tied together.
In the army, flogging was standard. One sentence recorded in 1750 was 600 lashes for being absent without leave. In 1777, one Elijah Reeves received 500 lashes for visiting a whorehouse that had been declared off limits. Military justice very slowly improved, but there was always resistance to change. Flogging was not abolished until 1881, despite campaigns against it throughout the earlier part of the century, led by parliamentarians such as John Bright and Joseph Hume. The military always argued that it was essential for officers to have the power to flog,
“to curb the natural passions of men”,—[Official Report, Commons, 16/2/1880; col. 1167.]
as the Tory MP Colonel John North put it.
As for the informality of these proceedings, a Bill was introduced in 1805 to require that the evidence given in a regimental court martial should be on oath. In the debate on that Bill, Lord de Blaquiere, a supporter, told the Commons that he had
“seen a man sentenced by a regimental Court-martial to receive one thousand strokes, for an offence, which, on board a ship, would not have been punished with more than a dozen lashes”.—[Official Report, Commons, 12/3/1805; col. 860.]
Sir John Wrottesley, on the other hand, a major in the militia as well as an MP, opposed the Bill, arguing that “petty fogging attorneys” would always be lying in wait to interfere with military justice.
As a pettifogging attorney myself, I recall moving amendments to the 2006 Armed Forces Bill, one of which proposed that members a court martial panel should, as in the United States, be drawn from other ranks as well as officers. Another proposed amendment was that members of a court martial panel should be mixed, drawn from all three services instead of solely from the prisoner’s service. These amendments were opposed by the Minister, Lord Drayson, strongly supported by a noble and gallant Lord who later, in a touch of banter outside the Chamber, told me that my amendments were outrageous and asserted, with the approval of two other noble and gallant Lords from different services, that I should be shot.
There have been significant improvements over the years, despite such resistance. However, both the services and the Ministry of Defence have insisted up to now that sentencing should be the responsibility of the court martial panel—its decision being, of course, by a simple majority. Under the current law, the role of the judge advocate at the sentencing stage is merely to advise panel members of the extent of their sentencing powers, rather like a clerk to the justices. Under Section 160(4) of the 2006 Act, the judge advocate has a casting vote only in the event that the panel is equally divided on sentencing. He has no vote, of course, on the issue of the finding of guilt or innocence. I remind your Lordships of the comment of the Law Commission that the law is incredibly complex and difficult to understand, even for experienced judges and lawyers. One wonders at the faith placed in a court martial panel to get a sentence right, particularly when it may be dealing, under Section 42 of the Act, with a most serious crime, all the way up to rape, manslaughter and murder.
In the civilian courts, where a person has been convicted of manslaughter, I have known sentences of life imprisonment, but also sentences of lesser severity, all the way down to an absolute discharge. How can a court martial panel deal with that? Remember that, unlike a much more experienced bench of magistrates, whose powers of sentencing are limited to two years’ imprisonment, the officers on the panel, save for the president, may well be new to the job. For many, perhaps the majority, this will be the first and last time they are called upon to sit in judgment. Surely it would be more sensible to leave sentencing as the responsibility of the judge advocate, assisted by the panel on any service issues that may arise.
I have no doubt that I shall return to this point when we consider the sentencing Bill in this Session, or the armed forces Bill in the next. As we await anxiously the findings of the current review, I wish this Bill a fair passage.
Release of Prisoners (Alteration of Relevant Proportion of Sentence) Order 2019
Lord Thomas of Gresford Excerpts(4 years, 3 months ago)
Lords ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Lord Judge (CB)
My Lords, I shall be very brief; following the remarks of the noble and learned Lord, Lord Garnier, there is not much more to be said. However, I wish to underline, first, that I very much hope that we will have a commitment today from the Minister that the Government do not intend to hold back on the enactment of a sentencing code. We have been through the whole of that process. It was cut short by the general election but it is an absolute imperative, as the Minister well knows and as anybody who has ever listened to the discussions on these issues fully understands. If we are to have changes to prison regimes, let them be done by amendments to an existing code rather than being introduced piecemeal and added on so that we are still looking through 17 volumes of laws to find out what the appropriate level of sentence might be.
My second point is much more general. The Minister’s introduction suggested—and it is perfectly obvious that it is right—that this is just the beginning. The Government are committed to a wholesale investigation of whether sentencing levels and dates for release are appropriate, and so on and so forth; this is a mere first step.
Speaking for myself, I find it alarming that we have started this process by secondary legislation. The issues raised, as the eloquent speech of the noble and learned Lord, Lord Garnier, made clear, are immensely significant to the entire way we run our punitive system in this country. Yet we are to have secondary legislation for this and, I suspect, a piecemeal series of secondary legislation as the Government’s thinking develops. A very good example—for once I am not looking at the Conservative side; this was Labour legislation—is the Criminal Justice Act 2003, which gave the Minister amazing powers to come to Parliament by way of a statutory instrument and effect enormous changes in our arrangements for prisons. Please, can we be more cautious about dishing out these powers?
Lord Thomas of Gresford (LD)
My Lords, the policy change to increase the release date of prisoners sentenced to more than seven years to two-thirds of the sentence has been brought forward far too quickly and without proper consideration. It is not evidenced-based. Before the election, the Lord Chancellor wound up the rhetoric and gave the reason for ensuring that the most serious violent and sexual offenders would face longer behind bars, as he put it, as restoring “public faith in sentencing”—sentiments that the noble and learned Lord, Lord Keen repeated. By contrast, the impact assessment attached to this statutory instrument says:
“Research into victims’ views on sentencing and time spent in custody is limited. However, a 2012 study found that victims of sexual offences (who will be more likely to be affected by this policy) were unclear on what the sentences handed down by the court meant in practice.”
There is no other study on which this change of policy is based and, as the noble Lord, Lord Ramsbotham, pointed out, there has been no public consultation. There have been only newspaper headlines in the popular press.
Before spending £440 million in construction costs and £70 million a year for 10,000 new prison places, as envisaged by the impact assessment, it would have been far better for the Government to take their time to form a proper evaluation of experience to date. In 2014 permission was granted for the Berwyn training prison to be built on the industrial estate of my home town, Wrexham. I know the area well; in my youth I worked on that very site as a member of a railway gang replacing wooden wartime sleepers with concrete ones. I learned how to use a pick and shovel, drink very sweet tea and place a bet—matters of great importance.
As I watched the buildings go up, to open in February 2017 at a cost of £250 million, I noted that it was the largest operational prison in the UK and the second largest in Europe. Here, I thought, was the opportunity, with modern design and facilities, really to do something to tackle attitudes, change people’s lives and turn prisoners away from crime. All rooms, as the cells are called, have integral sanitation, a shower cubicle, a PIN phone and a UniLink laptop terminal. It is designed to hold up to 2,106 prisoners serving four years or more. There have been criticisms. In particular Frances Crook, the chief executive of the Howard League, told the Welsh Affairs Committee, which reported on prison provision in Wales in April 2019, that it was built in a way that even Victorians would not build. She said:
“It is going to be the most disgusting prison in Europe within 10 years.”
She was concerned in particular that only 30% of the accommodation is single-cell, to save money, in flagrant disregard of the recommendations of the Mubarek inquiry into the murder of a young man by his racist cellmate.
As the prison was going up, a local rugby player, an experienced prison officer from a Merseyside prison, told me that, despite attractive offers, no regular trained officers would be attracted to work there. “It’ll be full of newbies,” he said. “You need to know who you’re dealing with, who’s standing next to you.” He was right: the report of the Welsh Affairs Committee revealed that 89% of the prison staff were in their first two years of training. The Prison Officers’ Association says that the recruitment pool in north Wales is exhausted and that
“we see very young inexperienced officers joining … with very few experienced staff to guide them.”
An inmate released last May told the Daily Post that
“it’s being run like a youth club.”
Queen’s Speech
Lord Thomas of Gresford Excerpts(4 years, 4 months ago)
Lords ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Lord Thomas of Gresford (LD)
My Lords, in 1978 I was the guest of a senior lawyer in Philadelphia, Pennsylvania. That evening at home, he answered a phone call and came back wreathed in smiles: “The Republicans are struggling to get their legislation through the State Senate”, he told me. “The Democrats have told them they have to pay a price, and I’m the price: they’re making me a judge.”
On Monday of this week, a senior lecturer in the Cardiff Law School, Mr Bharat Malkani, was randomly selected by the research organisation Kantar to take part, as a member of the public, in a survey concerned with the independence of the judiciary. There were two questions. The first was, did he think the judiciary sufficiently independent from government? The second was, why is the judiciary independent? Was it lack of political interference, costs, or lack of interference from the media? When Mr Malkani asked on whose behalf the survey was being conducted, he was told that he could not be given that information until he had answered the questions. When he had finished answering, he was told it was on behalf of the Government. He phoned Kantar back later to check and was then informed that it was simply an in-house survey and had no connection to the Government at all. What is this all about? What is going on?
In recent months, as the noble and learned Lord, Lord Judge, observed, we have seen tensions. The Executive, without majority support in Parliament, unlawfully attempted to frustrate Parliament’s deliberations by way of Prorogation, relying upon prerogative powers of the Crown not deployed since the days of Charles I. Parliament reacted with unprecedented procedures, which were open to it only because the Government did not have the votes. Boundaries which were thought to be understood were crossed and the Supreme Court had to sort out the mess. Who else could have done it? The judges were portrayed by the Government, however, as unelected, unaccountable and anti-democratic: an echo perhaps, of the Mail’s “Enemies of the People” tag. The Government obviously find it difficult to get over losing a case. Anti-democratic? As Lord Bingham pointed out in a leading case:
“The function of independent judges charged to interpret and apply the law is universally recognised as a cardinal feature of the modern democratic state, a cornerstone of the rule of law itself.”
In Emlyn Hooson’s Chester chambers, in the elections of the 1960s, 1970s and 1980s, five of us stood as Liberal candidates—
Lord Thomas of Gresford
We have one over there. Another fought Lord Roberts of Conwy for Plaid Cymru and there was even a Conservative contender, for a valleys seat in south Wales. I welcome the noble Lord, Lord Davies of Gower, and particularly welcome his support for the A55—a north Wales road, I note—which runs into the Irish Sea, and the new Irish border, somewhere to the west of South Stack, Holyhead.
The well-worn track, however, between the Temple and Westminster was becoming rocky. For a young barrister, political involvement risked a black mark. None of the current Supreme Court justices appears to have had a juvenile fling at politics, although I note that one of them once owned a racehorse called, provocatively, “Young Radical”—something we all thought we were. Now there are these vague proposals, in the Conservative manifesto and in the Queen’s Speech, to establish a constitution, democracy and rights commission. Protecting the Constitution, the paper published by the right-wing think tank Policy Exchange on 28 December, expresses alarm at the entry of the Supreme Court into the political arena. The authors appear to see the Supreme Court justices, hitherto political virgins, coming together as a collective body with a determination to seize political control and promulgate new laws. We heard an echo of that in the speech of the noble Lord, Lord Strathclyde, who referred to “imaginative” new laws.
It is a highly regressive document, even calling for the removal of the title of “Supreme Court” and reverting to the wording of the Victorian Act of 1876 when Lords of Appeal in Ordinary were created to man the Judicial Committee. The authors of the paper write:
“If appeals against judgments were reviewed, in the words of section 4 of the Appellate Jurisdiction Act 1876, before Her Majesty the Queen in her Court of Parliament, it might be much less likely that the UK’s apex appellate court would mistake its position in relation to the Houses of Parliament.”
Accordingly, this paper—the basis of Tory policy—calls for the renaming of the Supreme Court as the “Upper Appeals Court” to emphasise its inferiority to the political sovereignty of Parliament and the Executive. That may not be quite compatible with the concept of independence of the judiciary as the third pillar of our democracy. Are we on the way to Philadelphia?
Justice and Security (Northern Ireland) Act 2007 (Extension of duration of non-jury trial provisions) Order 2019
Lord Thomas of Gresford Excerpts(4 years, 11 months ago)
Lords ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Lord Thomas of Gresford (LD)
My Lords, I have considerable experience of jury trials, and of non-jury trials in other jurisdictions, and I know which I prefer. The jury trial is superior in efficiency and fairness, and, in particular, in maintaining public confidence in the system; but it is with a heavy heart that we accept the need for these provisions and we will not object to the order that is sought.
There is still a clear danger from small groups of dissidents, as we saw on 18 April with the tragic murder of Lyra McKee in the Creggan area of Derry, and last week in the placing of a bomb under a policeman’s car at a golf club in east Belfast. As Chief Constable George Hamilton said:
“Those who carried out this despicable attack have nothing to offer Northern Ireland but a return to the pain and suffering of the past”.
As the Minister has pointed out, the threat level remains at “severe”, where it has been for the last 10 years. Such actions make jury trials very difficult in a very small number of cases in Northern Ireland.
Northern Ireland is a relatively small jurisdiction, but these actions reflect the fact that it is a divided society, despite the Good Friday agreement being signed 21 years ago, and paramilitary organisations are still active in many parts of Northern Ireland. Political motivations are no longer at the forefront. Paramilitary organisations have turned to crime, and they enforce discipline through violence and intimidation in those tight-knit communities. Any residents who informed on a member of a paramilitary organisation to the police would be at risk.
The independent reviewer, Mr David Seymour, cites figures from 2016 and 2017, which show that 197 offences—my Lords, I feel that I have to resume my place.
Lord Lexden (Con)
My Lords, the need for this order arises from continuing paramilitary activity in Northern Ireland. First, could my noble friend comment on the work being done by the Independent Reporting Commission—established by our Government in conjunction with the Republic’s Government in 2017—and its effectiveness? There was considerable debate in this House when the commission was under preparation. Its objective is,
“to monitor progress on tackling paramilitary activity”.
It would be useful to hear how this joint body set up by Dublin and London is getting on.
Secondly, could my noble friend comment on the panel set up by the Northern Ireland Executive? Its task is to provide a strategy for the disbandment of paramilitary groups. In view of the significance of paramilitary groups, a comment on the work of these two bodies would be useful.
Parliament: Freedom of Speech and the Rule of Law
Lord Thomas of Gresford Excerpts(4 years, 11 months ago)
Lords ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Lord Thomas of Gresford (LD)
My Lords, naturally the disclosure of material contrary to a court order offends against the training of all lawyers. We are brought up to respect the rule of law, to keep our mouths shut when it is appropriate, to respect the courts and their judgments and not to criticise them. I am wary that this approach may not have the same cataclysmic effect upon those who are not lawyers.
This issue came to a head in 2011 with John Hemming, the Liberal Democrat Member of Parliament for Birmingham, Yardley from 2005 to 2015. I have been a guest in his house and I know him very well. John Hemming was a scholar in theoretical, atomic and nuclear physics at Magdalen College, Oxford, and he became a millionaire with a software business by the age of 27, at which point he took up Liberal politics. He really was a good, old-fashioned Liberal campaigner. He passionately opposed super-injunctions, orders forbidding the revelation not just of the parties but even of the existence of the injunction itself. He considered that their use was the preserve of the rich, because only the rich could go to court and obtain them. I was very interested to hear from the noble Lord, Lord Hain, that Jess Phillips, who succeeded him in Birmingham, Yardley, made precisely the same point—that this is the preserve of the rich. In 2011 John Hemming revealed a number of well-known figures under parliamentary privilege: the chairman of Barclays Bank, Mr Goodwin and a well-known Welsh footballer. The result of that seems to be that the use of super-injunctions has declined—you can spend a lot of money and find that, if it is mentioned in Parliament, you have wasted it all.
Similarly, another friend of mine, Paul Farrelly, Member of Parliament for Newcastle-under-Lyme in Staffordshire, disclosed the existence of a super-injunction in the Trafigura scandal by means of a Parliamentary Question. Trafigura was dumping toxic waste products in Côte d’Ivoire, causing injury in the nature of burns to skin and lungs to 30,000 people. These are exceptional cases involving very considerable public interest. I oppose altering our disciplinary procedures so as to make such disclosures a breach of the Code of Conduct. It seems to me that, in exceptional circumstances, it may be justified to do what the noble Lord, Lord Hain, did—although I must say that, as a lawyer, I was shocked at the time, I can tell him that, and I do not think it quite comes into the category of some of the other disclosures that have been made. However, I think it is highly unwise to make such disclosures.
First, I think that a Member of Parliament who does so must examine his own motives. It may be a vehicle for a lowly Member of Parliament to indulge in publicity he would not otherwise get, as a result of the dramatic disclosure he makes and all the press that follows.
Secondly, it is obviously wide open to abuse. I do not suggest that abuse has taken place in any of the cases I have mentioned, but it would be possible for parties to proceedings and the press to approach a particular Member and induce him in one way or another to ask a Parliamentary Question under the cloak of privilege. We should be very concerned about that.
Thirdly, the Member in question is not a caped crusader, going around the world to seek justice and end injustice wherever it may be; someone must put him up to the particular issue, as we have heard from the noble Lord, Lord Hain. Whether it could amount to a criminal conspiracy to perform an unlawful act is doubtful, but it is inappropriate for a representative of the people to engage in an unlawful act, and it is unlawful to breach a court injunction. The fact that you are an MP and will not be punished for mentioning it in Parliament is an exercise of the privilege of Parliament, not the privilege of the Member. The Member is not cloaked and protected by the armour of this principle. It rests with Parliament itself.
I do not criticise the noble Lord, Lord Hain, for doing what he did. I am sure that he had very good reasons and was moved to do so. However, it is unwise, and anyone who seeks to do it should examine their conscience very carefully.
Devolved Administrations: 20th Anniversary
Lord Thomas of Gresford Excerpts(4 years, 11 months ago)
Lords ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Lord Thomas of Gresford (LD)
My Lords, I remember very well 18 September 1997, when the referendum result was announced. The cracach were at the count in the College of Music and Drama. The rest of us—the workers—were at the Park Hotel. Tension mounted, because the yes vote was falling behind. Then the very last result was that Carmarthenshire had voted by 65.5% in favour of an assembly. That was 6,721 votes out of the well over 1 million cast altogether.
It was a consolation for the noble Lord, Lord Bourne, that it was as narrow as that. He was the chairman of the Just Say No campaign. For me, it was the end of a long campaign for devolution. My noble friend Lady Randerson referred to the Government of Wales Bill of 1967, presented in the House of Commons by Emlyn Hooson MP. Emlyn was a very good delegator. “Just draft a Government of Wales Bill for me, will you, Martin?” he said. That is how the Bill came into being. It was presented in this House by Lord Ogmore. It may interest the noble Lord, Lord Bourne, and other noble Lords to know that the assembly I proposed was called the Senedd. Now, 50 years later, we are finally getting there—I have always been 50 years ahead of my time.
My next memory is of 26 May 1999, the day the Assembly opened. I was there as a guest and was in the Assembly chamber. I had been invited by my noble friend Lady Humphreys, a new Member, to look at her desk and all the accoutrements there. I noticed on the television in the chamber that the Queen had just stopped outside the building in her landau. I thought I had better get out of there, so I went through the door. There was a long lobby, which had been very full, but was now completely empty. I saw 150 metres of red carpet, with the Queen at the far end being greeted by Dafydd Elis-Thomas, the then convenor. I wondered what to do. Should I go left or right? There was no exit, but there was a little alcove. In the alcove was the chorus of the Welsh National Opera, who were to sing a specially composed piece as the Queen went past. I joined the basses. I held out my programme and, as the Queen went past, John Redwood had nothing on me and the passion with which I delivered that piece, I can tell you.
The Assembly grew in prestige and embedded itself in the national life of Wales. Other noble Lords have spoken of its achievements and I will not repeat them. What was important was that the elections were based on a form of proportionality. It was not the most satisfactory one but it was the result of a compromise, a deal, between Labour, who were all for first past the post, the noble Lord, Lord Carlile of Berriew, for us, and the noble Lord, Lord Wigley, for Plaid Cymru. We had a degree of proportionality. Of course, this resulted in coalition Governments who were remarkably stable. Labour led every Administration and has continued to do so—I agree with the noble Lord, Lord Wigley, that there should be a change—but Liberal Democrat and Plaid Cymru Ministers acting in coalition, separately and at different times have made very significant contributions. Kirsty Williams, the current Liberal Democrat Member of the Assembly Government, is certainly making a magnificent contribution.
In 2011, the confidence of the Welsh people in the new Assembly was shown by the two-thirds majority who voted in the national referendum in favour of full legislative powers. That is not finished. We need, and have always needed, to expand the numbers from 60 to 90. Indeed, the Assembly building was built with that capacity, just in case we ever get round to increasing the number of Members. Accountability in the Welsh Assembly is not as strong because of this. Some 40% of the Members are Ministers of one sort or another.
I turn to the present. At the moment, it is like a car crash. I do not know if noble Lords have ever been in a car crash, but I remember two in particular, which happened when I was driving on ice. You have no control; you cannot steer or brake. All you can do is wait for the bang. In one of those crashes I hit a line of fence posts, two of which went through the windscreen with sufficient power to whistle past my ear and go out through the back. They went all the way through the car and another came in from the side. The feeling you cannot control is how I feel at the moment, considering where we are in politics: how have we got here?
What contribution have the devolved Administrations been asked to make to the negotiations? After the 2016 referendum, a joint ministerial council was established—the JMC (EU Negotiations). Its terms of reference were to,
“seek to agree a UK approach to, and objectives for, Article 50 negotiations”.
That was before the withdrawal process had even begun. It had a few preliminary meetings but did not meet at all between February and October 2017. Article 50 was invoked without any attempt to develop a common UK approach. The devolved Administrations were ignored. The European Union (Withdrawal) Bill was published without consulting Cardiff and Edinburgh at all. There was no attempt to involve Members or officials from the devolved Administrations in the negotiating team. Protests from Mark Drakeford for Wales and Mike Russell for Scotland to David Davis, who was then trying to negotiate, were ignored and not replied to.
After considerable pressure, including from this House, the JMC (EU Negotiations) met in October 2017 and agreed that powers repatriated from Brussels would in devolved areas pass to the devolved Administrations, but that new “common frameworks” would be required to limit policy divergence in the UK. A new inter-ministerial group was created in February 2019 on the key areas of environment, food and rural affairs. The analysis we saw last April shows that the Government expect there to be 21 areas where legislative frameworks may be required, chiefly in agriculture, fisheries, health and food standards.
But has there been any agreement between the UK Government and the devolved Administrations? Not at all. Scotland refused legislative consent to the European Union (Withdrawal) Bill and has indicated it will withhold consent from the Trade Bill, the Agriculture Bill, the Fisheries Bill and any other Brexit Bills, whenever they resume their stumbling progress. Two months ago, in March, Mike Russell, the Brexit chief in Scotland, said that,
“the Scottish Government is refusing to have any truck with the UK Government’s invented concept of the supposed needs of some non-existent ‘UK Single Market’”.
Noble Lords might think that there is a considerable amount of work to be done to get the Scots, and indeed the Welsh, on side. Never mind trade deals all around the world if Brexit goes through, with people shooting off to China or Australia; what about holding the United Kingdom together? I believe, and I have said in the House before, that Brexit means a united Ireland and an independent Scotland. The tectonic plates will move inexorably in that direction.
In Wales, there is particular concern about the loss of European structural and investment funds, which have been very important to Wales and made us net recipients of funds from Europe. The UK shared prosperity fund has been loudly trumpeted, but is it anything more than a name? Who is designing it? What are the criteria for eligibility? Will it be GVA per head, as now? The noble Lord, Lord Wigley, pointed out that Wales has the lowest GVA per head at I think £16,000, as opposed to the English £27,000. Will it be the regional human poverty index? Will it be measures of disposable income? In particular, how will this shared prosperity fund be shared? As a devolved matter, will it be administered by a Welsh, Scottish or Northern Irish Administration? If we crash out on 31 October, will this shared prosperity fund suddenly come into being on 1 November?
When you step out of the car crash and see the remains all around you, you look for help and guidance. Where will we find the vision, leadership and energy to deal with these internal pressures and tensions—never mind foreign trade—to manufacture the economic frameworks, to design the shared prosperity fund, and to reconcile the devolved Administrations and their Parliaments, which have been disgracefully overlooked in the negotiations? Will we look to Mr Nigel Farage and his cronies to provide that leadership, vision and reconciliation? I do not think so. He said this morning that he is looking forward to returning to the pub next week, where no doubt he will hold court about the great betrayal. There is the whole raft of Tory aspirants to leadership running around presenting their wares to their members. Which one of them, still declaring his or her eternal support for Theresa May while manning the telephone banks, has the courage and the ability to do what is so necessary for Wales, Scotland and Northern Ireland?
The debate is about the role of the devolved Administrations in the governance of this country. All I can say is, “Don’t panic! Don’t panic!”
Law Applicable to Contractual Obligations and Non-Contractual Obligations (Amendment etc.) (EU Exit) Regulations 2019
Lord Thomas of Gresford Excerpts(5 years, 1 month ago)
Grand CommitteeRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Lord Thomas of Gresford (LD)
My Lords, I think it very appropriate that the Ministry of Justice should decide as a principle as far as possible to preserve the existing rules as they currently apply in the UK immediately after exit day. The purpose is,
“to provide maximum certainty and stability for businesses and individuals”.
However, I am concerned about the impact on business, even though the impact assessment does not throw up anything in particular. I am always very conscious of the strength of Hong Kong, which built its reputation and financial power on the fact that it uses English common law as the basis of its legal system. That means that contracts are readily made and understood, which has been of great economic benefit to Hong Kong. I notice that the impact assessment refers to the,
“strong international reputation as a centre of legal excellence”,
that this country currently enjoys. Anyone connected with the law knows that our legal profession has a great reputation, English law is frequently the preferred law and English courts are used even though a particular dispute has nothing to do with England, so this is a very profitable part of the legal world.
I shall take as an example one matter referred to in paragraph 7.7 of the Explanatory Memorandum, which refers to,
“the law applicable to non-contractual obligations arising from infringements of unitary EU intellectual property rights … Trade Marks … Design Rights and … Plant Variety Rights. These unitary EU IP rights will no longer apply in the UK … and UK courts will no longer hear proceedings relating to such rights after exit day”.
It seems to me that there is a whole area of law which may be cut out from the jurisdiction of English courts and the services of English lawyers.
That is compounded by the fact that these regulations remove the ability of UK courts to refer questions of interpretation of the 1980 Rome convention to the Court of Justice of the European Union—to my mind, that is a significant restriction—just as the interpretation of retained EU law generally cannot be decided by that court. We are going from a well understood legal system to something that is much more limited than we have been used to.
On the broad basis, however, the fact that the rights are generally retained is to be welcomed.
Baroness Chakrabarti (Lab)
My Lords, in an attempt once more to be succinct, I can echo the point that the noble Lord, Lord Thomas, was making. The concerns from this side are essentially about regulatory diversion. I do not think anybody is going to object to these regulations; the concern is with ongoing regulatory divergence and its potential impact, whether it is on unfair competition cases or IP cases and so on. Perhaps the Minister might consider briefly that risk of regulatory divergence in his reply.
In relation to insurance, the Explanatory Memorandum says:
“The Government engaged with representatives of the insurance industry”,
in relation to “insurance risks”. Can the Minister outline the types of risks identified in that engagement? We are told that banks and insurers are shifting hundreds of billions of pounds in assets out of the UK ahead of exit day to keep their contracts and policies within the EU area. We have learned that Aviva, Britain’s second largest insurer, will transfer around £9 billion in assets to a new Irish company, for example. Does the Minister agree with having that sort of risk to our economy? Does this reflect the concern about different outcomes that could result from insurance contract cases being resolved differently in our courts and those of our EU partners in the future?
As I say, my general proposition is on the risks of regulatory divergence, but one can hardly object to the instrument itself.