Conversion Therapy Prohibition (Sexual Orientation and Gender Identity) Bill [HL]

Lord Trevethin and Oaksey Excerpts

Friday 9th February 2024 Lords Chamber

[Lord Trevethin and Oaksey (CB)]

My Lords, it is a great pleasure to follow the noble Baroness, Lady Kennedy. I entirely agree that today’s debate and the subject generally is not the right place to be taking sides. The debate is not being conducted in the manner in which the culture wars rage. I also echo what she said about the exceptionally powerful and moving speech from the noble Baroness, Lady Hunt.

That said, I will make some observations about the potential legal consequences of a Bill like the one before the House today being enacted. If one is going to criminalise conduct in such a sensitive and contentious area, then it is essential to draw the line between that which is criminal and that which is not criminal with great care. The danger is not so much a risk of convictions and draconian penalties being imposed by the court, because the courts will probably act sensibly if and when cases are brought before them. The danger is more of a weaponisation of the criminal process by parties who are ideologically motivated in relation to these matters one way or another.

One speaker referred to the prospect of teachers reporting parents to the police. One can imagine, in an unhappy situation of divorcing parents, one parent reporting the other to the police for taking the wrong position on the child’s intentions. There are also issues with the actions of priests. It is the risk that the criminal process may be weaponised that we should have very much in mind.

Given that risk, imprecision in a Bill of this type is very dangerous. I want to use the time I have to make one or two observations about what are, with respect, unsatisfactory aspects of the Bill’s wording. I start with “practise” and “practice”, which appear in subsections (1) and (2) of Clause 1. They are dangerously ambiguous words. This has caused problems in the context of employment law. Does it mean—can it be constituted by—a single act or conversation, or does it have to be something rather more long-running? Does it in some way connote the offering of professional services, as in the sense of a doctor’s or solicitor’s practice? These ambiguities are unhelpful.

Then there is the strange word “assumption”. That is an odd word to find in a criminal statute, as another speaker mentioned. I suspect it is a synonym for “belief”. If it is, “belief” should be used because that would bring into sharp focus the arguable tension between this Bill and the rights in relation to religious freedom and religious expression that are contained in the convention. I make that respectful suggestion.

Then there is the odd word “inherently” in the phrase “inherently preferable”. What does that mean? I take it to mean that what has to be demonstrated is an assumption or belief that a sexual orientation or gender identity is preferable in all circumstances, irrespective of the particular circumstances and characteristics of the individual concerned. If I am right, it tends to suggest that what the Bill is really driving at, to some extent, is what Orwell would call “wrongthink”—the wrong sort of belief and one that is disapproved of. Clarification and the use of more precise language might bring these matters into sharper focus.

Then there is the phrase

“has the intended purpose of attempting to”.

It is a little drawn out, but I think it means “is intended to”. In law, you are presumed to intend the normal consequences of your acts, but how will intention be proved here? The clause mentions intention to change gender identity. What is gender identity? No definition is provided by the Bill.

In my remaining time, I want to focus on one type of situation that will certainly arise. What is the Bill supposed to do where there is genuine confusion and uncertainty on the part of the child or adolescent as to the question of gender, as there often will be? Can one be criminalised for attempting to change gender identity where there is real doubt as to the true position on gender identity? The Bill is silent on that. Where does it all get to?

Posit a situation in which, one day, an adolescent girl goes to her mother. She is troubled for whatever reason—she is approaching or going through puberty, for example, or is facing all the difficulties that arise at that time in one’s life—and says to her mother, “Mum, I am now identifying as a boy”. A few days or months later, the girl might say, “I have ceased to identify as a boy. I have decided that I am gay”. What does that situation require? It requires compassion, empathy, love and curiosity. What it does not require is a situation in which that child would arguably be delivering the caution to her mother—“Whatever you say may be taken down and used in court against you”—and in which the mother would be well advised to say, “No comment”. That is what happens when one criminalises, or is in danger of criminalising, communications of that nature.

A Scottish KC described the similar but much more extensive proposed legislation in Scotland as a jellyfish—something that it is impossible to get hold of but has a sting in the tail. It is not that far wide of the mark. The Bill is clearly borne of excellent intentions, but I very much doubt that it is curable by amendment.

Dissolution and Calling of Parliament Bill

Lord Trevethin and Oaksey Excerpts

Report stage
Wednesday 9th February 2022 Lords Chamber

[Lord Hope of Craighead (CB)]

My Lords, I supported these amendments in Committee and I should like to do so again today. I cannot help feeling that there is just a hint—as the noble Lord, Lord Lansley, put it earlier—of the generals fighting the last war, because it is very obvious why Clause 3 is there: it is to head off what was seen to be a trend at least in the decision in Miller 2.

I will make two points, if I may. First, following my noble friend Lord Butler of Brockwell, I agree that the clause is unnecessary. One of the things that was said by the Supreme Court at the beginning of Miller 2 was to distinguish the Prorogation issue with which it was concerned and Dissolution. It was made quite clear in a very few words at the start of that decision that decisions about Dissolution were nothing to do with the courts. The noble Lord, Lord Grocott, made that point very clearly when he said that this is the most political of decisions that could be taken. That is a very clear warning to the courts that it is nothing to do with them. It is unnecessary, because I cannot see the courts engaging with a Dissolution issue in addition to the points made by the noble Lord, Lord Norton.

The second point that I would like to say a little more about is the unwise precedent. The problem here is that the language of paragraph (c) in Clause 3 removes entirely from the courts the possibility of determining the limit or extent of the powers. The reverse of the coin is that it is the Executive who are the determination and who decide the limit or extent of their own powers. Earlier today, the noble Lord, Lord Reid of Cardowan, said that this was the basis for a dictatorship. My noble friend Lord Butler referred in Committee to a number of examples not very far away from us in Europe, where there is perhaps a trend moving towards that. We have to be extremely careful not to give a signal to a Government that they can get away with an exclusion clause of this kind. The question is how far the clause should go, and it is paragraph (c) of Clause 3 that is completely objectionable, leaving it to the Executive to determine the extent and limits of their own powers.

The question of precedent is worth dwelling on. I admire greatly the skills of the parliamentary draftsmen. They have their own skills and traditions, one of which is that they are very determined to follow precedent in the way in which they engage with legislation. This has great value, because it means that there is constancy in the way in which issues are expressed in our legislation, which is of a very high standard. My concern is that, whatever may be said today about this not setting a precedent, it will nevertheless be there in the books, and the draftsmen will, some years ahead, say, “That is what was done in 2022. It is an example that we can follow.” That is danger that I fear in this clause, which is unnecessary. It is unnecessary, so we should not risk the creation of a precedent that, in future years, we may deeply regret.

[Lord Trevethin and Oaksey (CB)]

My Lords, I respectfully agree with much of what the noble and learned Lord said about the drafting of this clause and agree that it should not be treated as a precedent in the future for other ouster clauses. The drafting is unprecedented, because the decision of the Supreme Court in Miller 2 was itself unprecedented. I do not agree with the amendment of the noble Lord, Lord Butler, and I will briefly explain why.

I regard with horror, and I suggest that your Lordships should regard with horror, the prospect of what one might notionally call Miller 3: namely, a piece of litigation challenging the propriety or legal effectiveness of a Dissolution. In Miller 1, the noble and learned Lord, Lord Reed, now President of the Supreme Court, warned against the legalisation of political issues and observed that it was fraught with danger, not least for the judiciary. There is a danger that, because the Supreme Court in Miller 2 found itself able to determine that case against the Government without getting involved in the underlying political issues, one might suppose that a similar exercise could be undertaken in relation to litigation about Dissolution without the judges having to address political questions in an objectionable way. That reasoning would be fallacious.

It is necessary to bear in mind what happened in Miller 2 in relation to the evidence. The noble Lord, Lord Pannick, who is about to rise, will be able to help us with that if need be. The government evidence in Miller 2 could politely be described as sparse. It consisted of a handful of partially redacted memos and there was no witness statement, as far as I understand it, which dealt substantively with the reasons for—that is, the justification for—the Prorogation. Why that was, I have no idea. It might have been pressure of time. It might have been—though I doubt it—some kind of Machiavellian strategy on the part of the Government, who were unafraid to lose the case. It might have been because no one was prepared to make a witness statement. It might have been for the legitimate reason that the legal position was being argued for that justiciability had to be taken as a preliminary issue, as the Divisional Court held that it should be, prior to any consideration of evidence. Never mind; there was no good evidence from the Government.

That enabled the Supreme Court, when it came to apply its test as to reasonable justification, to say in robust terms that there was no evidence before the court that would begin to support the contention that there was reasonable justification for the Prorogation. In that way, the Supreme Court avoided the need to tackle a question that might have arisen if the Government had given their evidence in a different way. The Prime Minister might have said: “Look, Parliament has made Brexit very difficult. I am engaged in an immensely important negotiation with foreign counterparties, which is going to affect the future of this country for many years. I regard it as desirable to convey the message to my negotiating counterparties that I mean business. That is why I intend to prorogue for an unusually long period of time.” The Prime Minister might have said that and that might have been true—I do not know. If that had been the evidence before the court, it is inconceivable that the Supreme Court justices would have felt able to enter on to that terrain, because it was nakedly political. That is the way that it might have gone.

That indicates that allowing even the faintest possibility of litigation about the legal effectiveness of a Dissolution is a grave error. It should be unthinkable that the judges should be forced to engage with that type of issue. I respectfully agree with what I think the noble and learned Lord, Lord Hope of Craighead, and others, have indicated—that it is very unlikely that the judges would entertain litigation of this nature. They would wisely be reluctant to do so.

But we should recognise the risk of litigation of this nature being initiated for collateral reasons. We are contemplating a period leading up to a general election. All the politicians will be on manoeuvres. There are potentially collateral advantages to litigating points of this nature, so Miller 3, or something like it, is conceivable. It should not happen. That is why, even though the drafting causes me concern, the ouster clause is good and this amendment should not be agreed to.

[Lord Beith (LD)]

My Lords, this is a new threat. We have heard of the threat of an election being called to the detriment of Back-Bench Members whose support is being sought, but the threat of Miller 3 is not one that has been produced before. I found it an unpersuasive line of argument, particularly that the Prime Minister could go to the courts and say, “In order that I should have a stronger position in dealing with foreign counterparties, I must suspend Parliament to make sure that nobody can attend Parliament and say anything in the course of its proceedings while I am engaged in these negotiations.” I cannot see any basis for that, as opposed to the contention that has come into the debate of a Prime Minister adducing in evidence, “I wish to have a Dissolution and I have a majority in Parliament supporting me in this desire”, which would be the case under the amendment that we passed previously. We would be in an absolutely clear position and the courts would have no basis for intervening.

In the preceding debate, the noble Lord, Lord True, said that the simple and proven practice of the past is what we should follow. But the simple and proven practice of the past did not include an ouster clause of this nature. The Representation of the People Acts do not contain ouster clauses of this nature, nor does most other legislation. That is a situation that might change, as the noble and learned Lord, Lord Hope, pointed out, if this is taken as a precedent. I will come back to that in a moment.

It is necessary to be clear, first, that in the event of the other place agreeing to the amendment that we passed a moment ago, this ouster clause is particularly unnecessary because no court would interfere with so clear a decision of Parliament. There are other reasons why the request to the monarch to dissolve would be protected from the actions of the courts. One is that it is, as the noble Lord, Lord Norton of Louth, pointed out in moving his amendment, a personal prerogative power. It is not a matter of advice which might be challenged, as it was in the Prorogation case. It is a personal prerogative power, which results from a request from the Prime Minister. I do not believe that the courts would be in any way inclined to interfere with the exercise of that personal prerogative by the monarch.

I strongly assert that the comparison with Prorogation is quite wrong. The effect of Prorogation is that Parliament cannot meet; it cannot sit or discuss and it cannot challenge the Executive. That is quite different from the Dissolution of Parliament and the calling of an election. Indeed, it has been adduced from the quarters of those who support the Government’s position that the calling of an election, referring the matter to the people, is so clearly the right outcome in so many circumstances that it should not be interrupted in any way. In my view, the courts would certainly not want to be seen to be preventing a general election from taking place. I find that inconceivable.

My primary worry about this ouster clause is not that it has some practical effect or that it changes what would be the clear reluctance of the courts to become involved in arguments about the calling of an election. It is that the Government have form on ouster clauses; we saw that earlier this week when debating the Judicial Review and Courts Bill, which has its own ouster clause. In that case, the Government have declared that it is their intention to use the wording in that Bill as a precedent for ouster clauses in other, unspecified Bills in future. That was clearly stated in a government press release.

The noble and learned Lord, Lord Hope, made the point that parliamentary draftsmen like to act on precedent. When they have found a form of words that suits their purpose in one case, they like to use it again in another, if possible. We are creating precedents for issues around, for example, purported powers that will be very unhelpful in future as we seek to defend the ability of the citizen to challenge abuse of power, which is what judicial review is about. We are doing so because of fears that are not justified and dangers that do not exist, because the likelihood of courts preventing a general election from taking place is clearly vanishingly small, to the point of non-existence, for the reasons that I and others in this debate have adduced. We would be better off without the ouster clause provision. We do not need it and therefore we support the amendments of the noble Lord, Lord Norton of Louth, and the amendment of the noble Lord, Lord Butler of Brockwell.

UK Government Union Capability

Lord Trevethin and Oaksey Excerpts

Thursday 1st July 2021 Lords Chamber

[Lord Trevethin and Oaksey (CB) [V]]

My Lords, I congratulate the noble Earl on his illuminating speech introducing this debate. I merely wish to make one observation about the following passage in chapter 4 of the review, which discusses intergovernmental relations:

“While the Review therefore agrees there should be a far greater role for Parliament in scrutinising discussions which take place in an IGR setting, to put their basis in statute risks dragging the courts into what fundamentally should be a political and parliamentary realm. In order to build respect and trust around IGR it is therefore important political differences are handled in a political, not legal, space.”


Litigation can be used, and perhaps misused, as a continuation of politics by other means. Some aspects of the Brexit litigation suggest that the concerns expressed in the Dunlop review about the courts being dragged into devolution issues are well founded. The Wightman case was problematic. The applicants there sought a reference to the CJEU of the question of whether an Article 50 notification could be revoked. The issue was academic at that time, although the applicants hoped that it would cease to be so. It is very unlikely that an English court would have been prepared to make the reference. In Scotland, the Outer House dismissed the application as an unacceptable encroachment on political terrain, but the Inner House made the reference and the CJEU determined the issue.

Putting the merits of the decision to one side, the case exposes the risk that politically motivated litigants may forum shop. Forum shopping and moving between the English and Scottish courts in relation to this agreement between central government and devolved Administrations is obviously very undesirable. Miller II, the Prorogation case, involved an actual—as opposed to potential—difference between Scottish and English decisions. The Scottish court made findings about the Prime Minister’s motivations which raised questions that would probably be regarded as non-justiciable in the English courts. The Supreme Court did not need to address the findings of the Scottish court directly, but the constitutional tensions inherent in the case strongly confirmed the wisdom of the preference of the noble Lord, Lord Dunlop, for political solutions to devolution issues.