Retained EU Law (Revocation and Reform) Bill

Debate between Lord True and Lord Beith

Committee stage
Thursday 2nd March 2023 Lords Chamber

[The Lord Privy Seal (Lord True) (Con)]

My Lords, if it would help the Committee, I understand that this is an extremely controversial Bill for many Members of your Lordships’ House. A good deal of time is being taken over it, which is your Lordships’ pleasure. On the question of interruptions, this is Committee and Members are free to speak more than once, but we make good progress if we allow all noble Lords to develop and complete an argument.

While the Companion says:

“A member of the House who is speaking may be interrupted with a brief question for clarification”—


not a speech—it also says:

“Giving way accords with the traditions and customary courtesy of the House.”


I think that is absolutely correct. The Companion continues:

“It is, however, recognised that a member may justifiably refuse to give way”.


It gives various circumstances, including

“in the middle of an argument, or to repeated interruption”.

The Committee must allow the Minister latitude to complete his argument. If a noble Lord has a new concrete point to put forward to the Committee afterwards, that is reasonable. I also remind the Committee that the Companion says:

“Lengthy or frequent interventions should not be made, even with the consent of the member speaking.”

[Lord Beith (LD)]

My Lords, I do not make lengthy or frequent interventions, but I welcome the Leader of the House giving your Lordships some guidance on this subject, which is helpful from time to time.

I raised a point that the Minister has not covered on the position of Defra, which clearly does not take the view that its corpus of material must be changed urgently. The noble Lord, Lord Benyon, said:

“Defra’s default approach will be to retain EU law unless there is a good reason either to repeal it or to reform it.”—[Official Report, 28/2/23; col. 205.]


Will the Minister comment on that?

House of Lords: Appointments

Debate between Lord True and Lord Beith

Wednesday 18th May 2022 Lords Chamber

[Lord True (Con)]

My Lords, my noble friend refers to a back door. The back door is actually the law of the land, a statute passed by Parliament. Hereditary Peers continue to contribute to the work of your Lordships’ House through committee memberships and in debates in the Chamber, and I think they do so in an outstanding manner.

[Lord Beith (LD)]

The Minister said that there were no plans. There are of course plans and they have had the general approval of this House. They were plans put forward by the Burns committee to enable an orderly system of retirement and replacement on a one-for-two basis, with a proper arrangement for representation of the various parties and groups in the House. Why does the Minister still set his face against those plans?

[Lord True (Con)]

My Lords, the previous Prime Minister and the current Prime Minister have made it clear that they do not accept the principle that a cap should be placed on the size of your Lordships’ House. Such an event with an appointed House would mean that the appointed House was impervious to any response from the House of Commons in a constitutional crisis.

Elections Bill

Debate between Lord True and Lord Beith

Lords Hansard - Part 2 & Committee stage
Thursday 10th March 2022 Lords Chamber

[Lord True (Con)]

My Lords, we had a debate on the previous group. Despite the beguiling invitation of the noble Lord, Lord Stunell, I am not going to rehash that debate. I am certainly not going to accept advice from those Benches on how many legs I should stand on at one particular time. They often seem to have about five or six legs, in my campaigning experience.

The Government oppose these amendments. I understand that they are probing, but I can reassure the noble Lord that we do not consider them necessary because, under the Bill as we propose it, the approval of Parliament—the whole of Parliament, both Houses—is required when a statement is created or whenever it might be revised. That is, as my noble friend Lady Noakes said, there in the Bill. That will ensure that the Government consider its views and then gives Parliament the final say over whether a statement takes effect.

This measure, in our judgment, will improve the accountability of the commission to the UK Parliament and ensure that Parliament, in the last resort, remains firmly in control of approving any statement. That is why the Government have proposed the affirmative procedure in the Bill for the approval of a new or revised statement and I can certainly confirm for the noble Lord that any statement must be approved by both Houses, including your Lordships’ House, before it can be designated. Therefore, we think these amendments are unnecessary.

[Lord Beith (LD)]

The Minister is relying so strongly on the case that Parliament would have final control over whether the statement was acceptable, he must be assuming that each House has the capacity to turn down and reject the statement. Can we take it that he will not, in those circumstances, say that it is somehow unconstitutional for this House to say that the statement is in defiance of the principles of democracy and damaging to our electoral system?

[Lord True (Con)]

My Lords, again, I am not going to be led into a wide and potentially very interesting debate on how your Lordships would behave in regard to any legislation, including primary legislation. I draw attention to what is before the Committee, which is that your Lordships would have to pass an affirmative resolution, and that does give your Lordships a power in law.

Dissolution and Calling of Parliament Bill

Debate between Lord True and Lord Beith

Committee stage
Tuesday 25th January 2022 Lords Chamber

[Lord True (Con)]

My Lords, I seek to put into the record the points put to me by those who argue and maintain that this is necessary.

I will further address the specific question of bad faith that was raised. This touches on another area around “purported”. Bad faith was mentioned by Lord Reid in Anisminic as one of the ways in which a decision may be treated as a nullity. Case law suggests that, if an exercise of power by a public body is taken in bad faith, it is unlawful and will be quashed by the court. A decision is taken in bad faith if it is taken dishonestly or maliciously, although the courts have also equated bad faith with any deliberate improper purpose. Therein lies the challenge. Again, there is no suitable standard by which a court can judge what an “improper purpose” is. By what standards can the courts assess the legitimate or illegitimate purpose—

[Lord Beith (LD)]

I want to clarify something. Clearly, one reason to include the word “purported” is to deal with the annulling of decisions that have begun to be put into effect. But the Minister referred earlier to the importance of protecting the political space for the particular decision involved in this legislation: the calling of an election. Is it his understanding that this is quite unlike any other exercise of executive power? If it is not, I shall be even more worried because it would bring about situations in which it is generally publicly accepted that the courts were right to annul, for example, a bad faith decision or a decision that has taken none of the processes that should go with it.

[Lord True (Con)]

I heard what the noble and learned Lord, Lord Hope, and the noble Lord, Lord Beith, said and I was going to, and will, come on to this point. I am trying to put a considered position on the record for the benefit of the House between Committee and Report.

By what standards would a court assess the legitimate or illegitimate purpose, or for that matter the impropriety or propriety, of a Dissolution decision by a Prime Minister? Is a Government calling a snap election because that may be to their advantage in some way an improper purpose? Where is the line to be drawn? Ultimately, these are matters that political actors and the electorate, not, I respectfully suggest, judges and lawyers, are best placed to opine on.

Therefore, although bad faith is suitable in the context of behaviour seen as, for example, commercially unacceptable or a deliberate improper exercise of an ordinary discretion by a public authority, it is not a term that is apt in the context of the Dissolution and calling of Parliament. This is something that is inherently political or, in the words of Lord Justice Taylor, a matter of “high policy”. Dissolution is simply not amenable to these legal tests.

I turn to the second part—a further amendment to delete “limits or extent” from the clause. Again, I am grateful to my noble friend and the noble and learned Lord, Lord Hope, for meeting me prior to Committee to explain their thinking. I hope that what I am about to say reassures your Lordships’ Committee of the necessity and proportionality of Clause 3(c).

As with the inclusion of “purported”, the words “limits” and “extent” are also a necessary response to case law. Clause 3 is drafted in response to the judgment of the Supreme Court in Miller II; that is clear. By reference to certain constitutional principles, the Supreme Court established a legal limit on the power to prorogue Parliament and concluded that it had been exceeded. The point we want to make is that by framing the issue in Miller II as being about the limits of the power to prorogue Parliament, the court was able to put the arguments about non-justiciability to one side.

In analysing the importance of Miller II, the Independent Review of Administrative Law observed that

“it creates the potential for the courts to circumvent the ‘no-go’ signs currently mounted around the exercise of prerogative powers in relation to ‘matters of high policy ... [such as] … dissolving Parliament”.

Therefore, Clause 3(c) seeks to make it clear that in the context of the Dissolution and calling of Parliament, the “no-go” signs should not be circumvented in this way.

My second point is about what standards or limits a court may seek to impose. In Miller II, the Supreme Court considered that two principles of constitutional law were relevant in establishing the relevant limit on the power to prorogue; namely, parliamentary sovereignty and parliamentary accountability. The Prorogation of Parliament is of course different from the Dissolution and calling of Parliament, as we have heard more than once tonight. In particular, the latter enables the electorate to deliver their verdict on the incumbent Government.

However, one might conclude that a court could look to impose a limit on the revived prerogative powers to dissolve and call Parliament, analogous to the limit imposed on the power to prorogue Parliament in Miller II, and in effect require in law a Government, of whatever persuasion and under whatever lead, to have a reasonable justification for calling an election in certain circumstances.

To paraphrase the independent review, in the case of Dissolution, deleting the words “limits” and “extent” would allow the courts to impose

“various conditions on when such a power can be said to have been validly exercised”,

and then declare

“that the power has not been exercised at all if those conditions are not observed.”

The Government consider that this would be an entirely inappropriate limit on the revived prerogative powers.

As I have argued, the Dissolution and calling of Parliament are inherently political decisions that are entirely unsuitable for review by the courts. More specifically, with relevance to Clause 3(c), we do not believe that it is appropriate for the courts to impose legal limits of this sort on when a Parliament may be dissolved and a general election called.

In reply to the noble and learned Lord, Lord Hope, we contend that this clause is not contrary to the rule of law. The Government agree with the independent review, which said:

“It is … for Parliament to decide what the law … should be, and it is for the courts to interpret what Parliament has said.”


The majority of the Joint Committee also concluded that it is

“not inherently incompatible with the rule of law”

for Parliament

“to designate certain matters as ones which”

should

“be resolved in the political … sphere”.

I come now to the point of precedent raised by the noble Lord, Lord Beith, and the noble and learned Lord, Lord Hope, for whose conversations I was very grateful. They asked a specific question and voiced their concerns that this clause sets a precedent. It is not so. As I have explained, Clause 3 is a very specific clause drafted with a particular purpose in mind; namely, to confirm a widely shared view of the nature of the prerogative powers to dissolve and call Parliament. For this reason, it is more accurately described, to use the phraseology of the independent review, as a “codifying clause”—a clause that in effect seeks to prevent the courts in future declaring something to be justiciable that is already currently understood to be non-justiciable.

In this case, it is seeking to ensure the non-justiciability of the prerogative powers for the Dissolution and calling of Parliament, which traditionally the courts have had no role in reviewing—nothing more. This is a bespoke exclusion to address this precise task.

Brexit: Civil Service Code

Debate between Lord True and Lord Beith

Thursday 17th September 2020 Lords Chamber

[Lord True (Con)]

I do not agree with that and I regret that the noble Lord—with his enormous experience in government, which I hugely admire—takes that view. Everybody in this House and outside who has had experience of working with the Civil Service, as I have over many years, understands the relationship. Sometimes we each have to do things—even Ministers—that, in our heart of hearts, we do not agree with. There is a clear process for civil servants who believe that they are being required to act in a way that conflicts with the code. That system exists and is set out in writing; it is available to the House and I am happy to circulate it to Members. The safeguards are there.

[Lord Beith (LD)]

My Lords, the Attorney-General is said to believe that the obligations under the Civil Service and Ministerial Codes apply to keeping domestic law, but not international law. Is that the Government’s position, or is their position, as set out by the noble Lord, Lord Faulks, when he was a Justice Minister, that:

“The obligations on Ministers under the law, including international law, remain unchanged.”—[Official Report, 3/11/15; col. 1522.]

[Lord True (Con)]

My Lords, I am not going to repeat in detail any position that the Attorney-General may or may not have set out. There are traditional rules on that. The Government’s legal position has been set out and sent to the chairmen of the Select Committees. Do the Government maintain the position set out by previous Administrations that law includes international law? Yes, they do.