Charities Bill [HL]

Debate between Lord Thomas of Gresford and Lord Parkinson of Whitley Bay

Report stage
Tuesday 14th December 2021 Lords Chamber

[Lord Thomas of Gresford (LD)]

Is it not the case that, if the amendment were to pass, the Attorney-General would have the power to intervene at any stage in the public interest if the public interest became involved? I do not see why she has to give her consent before the reference to the tribunal can be made.

[Lord Parkinson of Whitley Bay (Con)]

That consent function, my Lords, is something the Government consider important; it is part of the assessment of whether it is in the public interest for the reference to the tribunal to begin, with all the costs and time that it would involve. That is part of the reason why the Government cannot accept my noble friend’s amendment.

While supporting the Attorney-General’s role, we are also aware of concerns raised by noble Lords regarding the time taken for the Attorney-General to make a decision on whether to grant consent in the particular case to which my noble friend referred. His amendment is grouped with Amendment 4 in the name of the noble and learned Lord, Lord Etherton, which provides that the Attorney-General must make her decision on an application for a reference to the tribunal within 60 days, otherwise consent would be deemed to be given. His amendment also requires that the Attorney-General publish a comprehensive statement explaining the reasons for any refusal of consent.

Regrettably, however, the noble and learned Lord’s amendment does not acknowledge that there may be good reasons beyond the Attorney-General’s control that require additional time in her decision-making. There may be times, for instance, when a case requires further information to be submitted, either by an individual charity or the Charity Commission, to enable the Attorney-General to make a fully informed decision. There may be mediation under way between parties involved which needs to conclude before a decision can be made, or a case could be particularly complex and require further investigation and deliberation. Given how complex these rare cases normally are, a strict 60-day time limit following which consent is automatically given would amount to the effective removal of the Attorney-General’s consent function by the back door. I have outlined the reasons why we do not agree that the consent function should be removed. Doing it in that way would also be inappropriate.

It is regrettable that a decision on whether to grant consent to a reference in the case involving the Royal Albert Hall took so long, but one complex case does not justify a change in the law. I thank once again my noble friend Lord Hodgson and the noble and learned Lord, Lord Etherton, for his Amendment 4.

[Lord Parkinson of Whitley Bay (Con)]

My Lords, the Attorney-General is a Member of Parliament. Previously, they have been Members of your Lordships’ House; the current Attorney-General is a Member of another place. She is therefore subject to the same parliamentary scrutiny and the methods available to Members in another place to ask her those questions. This is a reflection of her particular role, but she is not a remote person; she is a Member of Parliament who can be asked questions. She makes her view known, as she has in this case, but we do not think that this case alone should warrant a change in the law.

[Lord Thomas of Gresford (LD)]

Does the Attorney-General claim the same prevention of disclosing that there is when she gives advice to the Government for when she gives or refuses consent under this provision? If it is different, why has she not given more reasons for it in the case of the Albert Hall?

[Lord Parkinson of Whitley Bay (Con)]

My Lords, no, I do not think that the Attorney-General claims client confidentiality in the same way. Her role overseeing charity law is part of her function as parens patriae. However, we think that it is important to maintain the consent function. As I have said, she is a Member of Parliament, so these questions could be posed to her.

The Attorney-General has set out her reasons why she does not think it would be in the public interest for reference to be made. Noble Lords may disagree with that, and they may ask her about that, but I reiterate that I do not think that one case, however long or complex it may be, should warrant a change in the law. It is for that reason that I hope my noble friend may yet withdraw his amendment.

Jurisdiction, Judgments and Applicable Law (Amendment) (EU Exit) Regulations 2020

Debate between Lord Thomas of Gresford and Lord Parkinson of Whitley Bay

Tuesday 8th December 2020 Grand Committee

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

I am very grateful. I am sorry if there has been a glitch. I was ahead of the noble Lord, Lord Ponsonby, on the list that I received this morning.

I do not mind mistakes—everybody makes them—and the helter-skelter of amending the statute book in time for our leaving the EU has no doubt led to many errors in the wave of 2019 regulations put before us. If the mistakes could not be spotted at the time by government lawyers, perhaps the opposition parties can be forgiven for letting them through. I understand that another SI to amend mistakes is in the pipeline, similar to this, and I would expect others to follow.

First, the 2019 civil jurisdiction and judgments regulations inadvertently broadened the special jurisdiction rules, with the effect that a larger group of employees than the Government intended would be able to sue employers in UK courts. Secondly, the jurisdiction and judgments family rules contain two minor errors. The first are references to “actions for adherence and aliment”, concepts that had been abolished in Scots law before I ever came to know that they existed and, secondly, they inadvertently took away jurisdiction from the Scottish court to hear claims for aliment not connected to divorce or other proceedings.

The 2019 cross-border mediation regulations did not take into account alterations made by the Employment Act (Northern Ireland) 2016. Similarly, family procedure and Court of Protection rules contained minor errors. Two of the civil judicial co-operation exit instruments of 2019, which are very important to ensure co-operation with our former European partners, have been overtaken by the provisions of the withdrawal agreement.

I welcome this SI not so much for what it contains but because of its limited purposes—to use the powers that have been granted under various statutes to put right mistakes. There is nothing grandiose about it. The objection, that we hear so much, to the use of Henry VIII powers arises when they purport to carry into effect policy, not when they rectify errors, as here. By contrast, the powers to make secondary legislation that have been so offensive—the ones put back last night into the United Kingdom Internal Market Bill and abandoned this morning—were not just those which would have permitted a Minister to break the law and are contrary to the rule of law championed for so long by this country; that offence was compounded on this occasion by the unprecedented attempt to give such unlawful secondary legislation the status of an Act of Parliament, so that the use of unlawful powers could not be challenged in the courts by judicial review. The proposal was an extraordinary and unprecedented step, which I hope will never be repeated.

Today is an interesting day, not just for last night’s reassertion of illegality by a pack of Tory MPs, but as the day that the Prime Minister heads off to meet the head of the European Commission to assert the primacy of British sovereignty, having desperately weakened his own bargaining position by demonstrating that the United Kingdom cannot be trusted to keep its word. But I must be up to date. Perhaps honour has been saved this morning, not by the tooting John Soane-ian cavalry coming over the hill, but by that parfit gentil knight in tarnished armour, Michael Gove, the man the Prime Minister most trusts above all others to put a drooping lance into his back—ironic, is it not?

I take the Whig view of history: that, steadily but assuredly, humanity progresses from darkness into light. Such progress involves the necessary recognition of the rule of law, of human rights, and of international co-operation as an expression of our common humanity. In my lifetime, there has been progress. The forces of fascist dictatorship were crushed in the Second World War. International institutions such as the United Nations and its many agencies were created in its aftermath. Domestically, the welfare state, which had its origins in the reforms of Lloyd George in the early part of the 20th century, progressed and was entrenched. It gives us the National Health Service, and today, V for vaccination day.

However, in the last few years, progress has stumbled. Narrow nationalism proclaimed by populist leaders has re-emerged, blinking, into the light. The most notable instance has been the Donald Trump years—America first, when international co-operation in tackling climate change was abandoned, alliances were broken, the international order challenged, and internally, the concept of welfare, as illustrated by Obamacare, was attacked. It was all un-American.

Today, Mr Johnson will, in the Trump tradition, be arguing for British exceptionalism—Britain first. He will be asserting a faded—

[Lord Parkinson of Whitley Bay (Con)]

I wonder if the noble Lord, with his Whiggish view, could come back to the regulations in hand.

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

I am just about to complete. I was about to say that Mr Johnson will be asserting a faded and outdated concept of Machiavellian sovereignty for which Charles I lost his head and the British Empire went to the wall. Not much to do with this statutory instrument, you may think—as the noble Lord who interrupted suggested, and he was right—but this proceeding does for once give me a platform to add a very small footnote to what is an historic day.

Covert Human Intelligence Sources (Criminal Conduct) Bill

Debate between Lord Thomas of Gresford and Lord Parkinson of Whitley Bay

2nd reading & 2nd reading (Hansard) & 2nd reading (Hansard): House of Lords
Wednesday 11th November 2020 Lords Chamber

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

I congratulate the noble and learned Lord, Lord Stewart of Dirleton, on his excellent maiden speech. He referred to many sports in Dirleton, and I was hoping that he might mention the excellent North Berwick Rowing Club. I think he should have a word with his noble friend— I refer to the noble Earl, Lord Courtown—or with my noble friend Lord Paddick, who spoke third in the debate. I promise that, if he joins us in the House of Lords eight, we will overlook his youth. I also welcome the noble Lord, Lord McLoughlin, to the House, but he should be aware that the West Derbyshire by-election of 1986, where he narrowly but fairly defeated that outstanding Liberal Chris Walmsley, has not faded from memory in some quarters.

This Bill has some extraordinary features. Suppose an official from the Gambling Commission believes, quite unreasonably and without any basis, that, in his view, it is necessary, in the interests of the economic well-being of the United Kingdom, to infiltrate a perfectly lawful organisation—say, a trade association or, as the noble Lord, Lord Whitty, mentioned a moment ago, a trade union. Under this Bill, he may authorise a 16 year-old to commit a criminal act and give him full immunity against criminal prosecution or civil liability, removing any consideration as to whether, even in part, he himself had a criminal intent or was incited to the sort of abuses to which the noble Lord, Lord Hain, referred.

It is obviously right that there should be a framework that is open and transparent to control the exercise of state power to authorise the commission of criminal offences, but it must be a tight framework. The noble and learned Lord, Lord Stewart, referred to authorisations that will have strict parameters and be tightly bound—but only by the word of the authoriser of the CHIS, his immediate controller.

I will analyse the scenario I set out. What is the rationale for putting into the hands of an official of the Food Standards Agency, or similar organisations, the extraordinary power to authorise criminal acts? Is it for labelling or pursuing dodgy hamburger vendors? This power should be used in the public interest and only in the pursuit of serious crime by professional criminal investigation agencies.

As for immunities, should not the decision as to what is in the public interest remain with the CPS or the Director of Public Prosecutions and not with the initial authoriser? Why should that official, unchecked, exercise this power on his own subjective belief as to its necessity and proportionality? Surely his belief should be, and be seen to be, reasonable? I agree with my noble friend Lord Beith that, as with ordinary warrants, he should be required to obtain the prior consent of a judge or, as in other covert operations, judicial commissioners. A judge would have the power to interrogate the authoriser to establish that he has a rational base in law for issuing an authorisation. As the noble Lord, Lord Rosser, pointed out, there is a duty High Court judge on hand 24 hours a day.

The Bill permits the commission of crime by an agent or CHIS infiltrating a perfectly lawful organisation —for example, a protest group. If such lawful groups need to be infiltrated to ensure public order, it is curious that this Bill should permit the infiltrator to commit crime. I would like to know from the Minister whether an authorisation issued under the Bill could permit a CHIS to act as an agent provocateur, stirring up crime where none exists. This Bill should be limited to national security and the detection and prevention of crime.

However, the most glaring anomaly is that the Bill would permit authorising the CHIS to commit murder, rape or robbery anywhere in the world without any of the limitations set out in other similar jurisdictions—Canada, the US or Australia—and with immunity from prosecution or civil liability, rather than prosecutorial discretion. Is the European Convention on Human Rights a sufficient safeguard? The Minister will find that his colleagues want to scrap it.

This is a very specific question and I would like the Minister to answer it: do the Government concede at last that convention rights bind an agent of the Crown acting outside the jurisdiction in, for example, Europe, the USA or the Republic of Ireland? The Bill should be clear as to what is or is not within its scope, territorially and in substance. In Committee, I hope to pursue safeguards for children, which other noble Lords have addressed, and redress for victims. I am sure there will be many other issues.

[Lord Parkinson of Whitley Bay (Con)]

My noble and learned friend Lord Garnier will speak next, but this pause gives me the opportunity to remind noble Lords about the advisory four-minute time limit for Back-Bench contributions. This is only advisory, but it would be a courtesy to the large number of Peers who want to contribute. I hope that my noble and learned friend Lord Garnier will set a fine example.

Human Rights Act 1998 (Remedial) Order 2019

Debate between Lord Thomas of Gresford and Lord Parkinson of Whitley Bay

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.