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

Debate between Lord Wallace of Tankerness and Lord Marks of Henley-on-Thames

Report stage & Report stage (Hansard) & Report stage (Hansard): House of Lords
Wednesday 17th June 2020 Lords Chamber

[Lord Wallace of Tankerness (LD) [V]]

My Lords, the amendment follows on from my contribution at Second Reading on 17 March. I tabled an identical amendment in Committee but withdrew it from the Marshalled List, having been invited to a further meeting with the Minister, the noble and learned Lord, Lord Keen of Elie. At the outset, I express my thanks and appreciation to him, his officials and his Bill team for their constructive—and, I hope, productive —engagement with me since before Second Reading.

Basically, the purpose of the amendment is something akin to jurisdictional catch-up. It seeks to give force of law in England, Wales and Northern Ireland to the provisions of Hague Convention 35 of 13 January 2000 on the International Protection of Adults. Section 85 of and Schedule 3 to the Adults with Incapacity (Scotland) Act 2000, which I had the privilege to sponsor in the earliest days of the Scottish Parliament, paved the way for ratification of the Hague Convention by the UK Government in respect of Scotland in November 2003.

The convention is intended to give support to vulnerable adults who, by reason of impairment or insufficiency of personal faculties, need legal protection, specifically when there are interests in different international jurisdictions. For example, the convention can determine: which court has jurisdiction in relation to protective measures; the law to be applied in particular circumstances; and the establishment of central authorities, which can locate vulnerable adults, give information on the status of vulnerable persons to other authorities and facilitate mutual recognition of relevant orders.

In supporting ratification, the briefing from the Law Society of England and Wales states:

“Due to not being party to the convention, England and Wales does not have a central authority to issue the relevant certificates of authority for powers of attorney to act outside the jurisdiction. This gives rise to unnecessary difficulties in relation to the protection of overseas property and welfare by attorneys and deputies who have been appointed to protect potentially vulnerable people.”


I believe that there is a compelling case for ratification in respect of all parts of the United Kingdom. In this way, those resident in Glamorgan, Gloucester or Belfast will be on comparable terms to citizens in Glasgow or Banff in relation to recognition and enforcement of relevant court orders in 2000 convention contracting states. One might say that it would be a good example of levelling up.

Indeed, the primary legislation to give effect to the convention provisions is already in place for England and Wales through Section 63 of and Schedule 3 to the Mental Capacity Act 2005 and, in the case of Northern Ireland, through Section 283 of and Schedule 9 to the Mental Capacity (Northern Ireland) Act 2016. It would be helpful if, in his reply, the Minister could give an indication not only of the Government’s intentions but of discussions with the Northern Ireland authorities. Given that the Assembly passed the 2016 legislation, I hope that progress toward ratification for Northern Ireland can also proceed.

The long-overdue ratification of this convention would be beneficial for vulnerable adults and those who support them in England, Wales and Northern Ireland. I commend the amendment to the House and I am hopeful that the case for ratification will commend itself to the Minister. I beg to move.

[Lord Marks of Henley-on-Thames (LD) [V]]

My Lords, I fully support the amendment moved by my noble and learned friend Lord Wallace of Tankerness. It is plainly an anomaly that the 2000 Hague Convention does not at this stage apply throughout the United Kingdom. The inclusion of the convention in Clause 1 will achieve this. I hope that the Government will accept the amendment to achieve the end that my noble and learned friend seeks.

Crown Prosecution Service

Debate between Lord Wallace of Tankerness and Lord Marks of Henley-on-Thames

Monday 23rd February 2015 Lords Chamber

[Lord Wallace of Tankerness]

My Lords, I think I am right in saying that this is the first time the noble Lord, Lord Bach, has been at the Dispatch Box in his new role as Shadow Attorney-General. I want to congratulate him on his appointment to that role. I share his view that the Crown Prosecution Service has performed exceptionally well and has been exceptionally well led in recent times. With regard to his specific question, he is absolutely right to say that there have been a number of large and complex cases, including historic child abuse, violence against women and terrorism matters. CPS officials are working closely with Her Majesty’s Treasury to analyse and manage the impact on the prosecution of the increasing number of large and complex cases to ensure that there are enough resources in place to tackle crime effectively and efficiently. The department will continue to assess and reprioritise resources where possible. Obviously, future funding will be determined as part of the spending review process in the normal way, informed by the analyses which are taking place.

[Lord Marks of Henley-on-Thames (LD)]

My Lords, have the Government yet considered the recommendations of the recent Leveson review on efficiency in criminal proceedings, particularly concerning charging decisions, case ownership involving continuity of prosecution decision-makers and the early instruction of prosecuting counsel, and how these might help the CPS to increase efficiency within its budget? Have the Government also considered Leveson’s recommendation for 12 to 18 months of transitional funding to enable the CPS to implement the review’s proposals?

[Lord Wallace of Tankerness]

My Lords, I think it is fair to say that the Crown Prosecution Service is already doing much to improve efficiency. Obviously, we are well aware of the review undertaken by Lord Justice Leveson. The CPS finds it a very constructive piece of work. I can assure my noble friend that it is being given active consideration by the CPS.

Succession to the Crown Act 2013

Debate between Lord Wallace of Tankerness and Lord Marks of Henley-on-Thames

Wednesday 26th February 2014 Lords Chamber

[Lord Wallace of Tankerness]

My Lords, this issue was raised during our debates. It was indicated that numerous issues would arise with regard to hereditary titles which did specifically arise with regard to the succession to the Crown—and indeed I think my noble friend Lord Lucas has a Private Member’s Bill which has had one day in Committee, where there was an opportunity to debate that issue.

[Lord Marks of Henley-on-Thames (LD)]

My Lords, with the birth of Prince George some of the urgency has gone out of the need to implement Section 1 of the Act. Does my noble and learned friend agree that it is still important, and indeed urgent, to bring Section 2 into force to start to implement the dismantling of the discrimination against Roman Catholics that has been embedded in our constitution and therefore in those of Her Majesty’s other realms for well over 300 years?

[Lord Wallace of Tankerness]

My Lords, I entirely agree with my noble friend. He is right to say that the birth of Prince George has taken away the immediacy of that particular matter, but he is also right to point out that the Act also allows someone in the line of succession to become sovereign to marry a Roman Catholic. It also removes the requirement of the heirs of George II to seek Her Majesty’s approval before they can marry—it will now be confined to first six in line to the throne.

Justice and Security Bill [HL]

Debate between Lord Wallace of Tankerness and Lord Marks of Henley-on-Thames

Tuesday 26th March 2013 Lords Chamber

[Lord Wallace of Tankerness]

My Lords, for the convenience of the House, I will speak also to the other amendments in this group. The Government have listened to concerns expressed in this House and elsewhere about transparency, particularly around the new closed material proceedings provisions. I know that several Members of your Lordships’ House expressed frustration at the lack of information available about how many CMPs take place.

The Government have accepted that the unusual nature of CMPs means that there would be significant public and parliamentary interest in more information about how the provisions in this Bill will operate. A strong view was expressed in this House, although no amendments to the Bill were passed, that reporting and review arrangements would be valuable safeguards.

The Government have brought forward amendments that address these concerns. We decided to adopt the expert view of the Constitution Committee by providing for annual reporting to Parliament and for a review of the CMP provisions under this Bill to be conducted five years after Royal Assent. The Joint Committee on Human Rights also made similar recommendations.

Given the often lengthy nature of litigation, with cases often lasting more than a year and sometimes several years, we believe that the frequency of review under these provisions allows for regular but meaningful reporting and for a review to be informed by enough cases to provide for substantiated conclusions and reasoned recommendations where necessary.

An annual report is the most proportionate approach. We expect that the CMP provisions in the Bill will be used rarely. More frequent reports may contain too few data to be meaningful. Annual reports will not, however, be the only way in which facts relating to cases involving CMPs will be made public during the reporting period. The Government made an amendment when the Bill was last considered by this House to ensure that where an application is made under Clause 6(2), that fact must be reported to the other parties in proceedings; and there are already existing mechanisms by which the courts publish their open judgments and the media report on cases of interest to the public.

The reports will focus on the volume of cases and applications. The amendment lists the matters of key concern to be included in the annual report as: the number of applications for a CMP declaration and by whom the applications are made; the number of declarations and revocations made by the court; and the number of judgments published, both open and closed, with respect to the determination of Section 6 proceedings—this would include judgments made on the substantive trial and judgments made regarding the outcome of the application for a CMP declaration. The reporting arrangements will also cover “deemed” Section 6 proceedings or those treated as Section 6 proceedings.

In addition to an annual reporting requirement, the Government have introduced provisions for a comprehensive review of the operation of the CMP provisions in this Bill after five years, conducted by an independent figure and with a report made to Parliament. We expect such a review to take into account the views of special advocates, among others; to consider efficiency, trends and types of case; and to analyse the numbers provided in the annual reports to reflect on how CMPs are being used. The reviewer will have to take care not to comment on judicial decisions or on how the judge has run particular cases.

In line with most other legislation, this clause provides for the appointment of the reviewer by the Secretary of State. Amendment 19A in the name of my noble friend Lord Marks would require consultation first with the Lord Chief Justices and the Lord President of the Court of Session. We do not believe that such consultation is necessary for a reviewer or commissioner to be independent or to be perceived as being independent, as has been repeatedly shown by the independence displayed by Mr David Anderson QC and other independent reviewers and commissioners. David Anderson has been clear about his views on this Bill, for example, and has been influential in persuading the Government to change their position on a number of issues. Such appointments are now subject to a statutory code for public appointments to ensure that they are undertaken transparently and on merit. This should provide reassurance that the person with the right skills and background will be appointed.

It has also been suggested that a review after a shorter period of time would be better. My noble friend’s Amendment 19B would reduce this period from five to four years, which I note seeks to ensure that the sunsetting provision follows consideration of the reviewer’s report. I believe that given how long litigation can take and the small number of cases expected, five years is the right period for there to be enough evidence for a review meaningfully to draw upon.

Amendment 19C would require a further review every five years. In its report, the Constitution Committee said the House may wish to consider the Bill being independently reviewed five years after it comes into force. We have followed that recommendation. Any reviews should be focused where there is proper justification for them, and they should be proportionate.

We should remember that judges have full discretion over whether to grant a CMP, whether to revoke it at any point in a case, whether they agree with the Secretary of State’s assessment of national security damage, how material should be treated within the CMP, effective management of the case, whether a CMP should continue, and in deciding the outcome. There have also been some suggestions that the unusual nature of the CMP provisions means that a sunset clause would be appropriate. This would allow Parliament the opportunity to revisit the need for the provisions in the Bill once they had been operating for a while. The Joint Committee on Human Rights recommended such a provision but the Constitution Committee did not.

Amendment 19D in the name of my noble friend Lord Marks and Amendment 19E, tabled by the noble Lord, Lord Beecham, seek to introduce a sunset and renewal clause for the new CMP provisions, requiring renewal every five years. My noble friend’s amendment provides for a renewal order to follow completion of the reviewer’s report. His amendment makes it clear that the CMP provisions would cease to take effect except relating to proceedings where a declaration had already been made, thereby not interrupting ongoing cases.

I point out to noble Lords that the effect of this amendment would also be to disrupt the Norwich Pharmacal clauses in the Bill that are intended to bring clarity to the Norwich Pharmacal jurisdiction when sensitive information is involved and to provide reassurance to intelligence-sharing partners, a point that was made in the previous debate by the noble Lord, Lord Owen. Although such a clause would apply to the new CMP Clauses 6 to 10 of the Bill, it would also affect proceedings connected to Norwich Pharmacal, both those where the Secretary of State would need to apply for a CMP and the reviews of certificates issued by the Secretary of State under the Norwich Pharmacal clauses. These proceedings are deemed to be Section 6 proceedings because the case needs to be heard in a closed material procedure to ensure that the outcome of the proceedings is not prejudiced by having already publicly disclosed the very information with which the proceedings are concerned.

Such a sunset clause would undermine the purpose of the Bill and unnecessarily so. Both Houses have agreed that there is a gap in the law, that there are circumstances where a judge may decide that a CMP is preferable, that claimants’ cases must sometimes automatically fail without a CMP and that the judge should have a CMP in his toolkit. Given the wide discretion that we have given the judge about when the provisions should be used, I do not know why we would then want to remove CMPs from the judge’s toolkit.

As I have said, the Bill provides for the procedures of the court over which the judge has discretion and not the exercise of controls by the Executive. I reinforce the point, made in an earlier debate, that international partners have expressed concerns regarding the United Kingdom’s ability to protect sensitive information shared with the United Kingdom in cases where claimants are making allegations against the state and its defence rests on national security material. We risk further undermining the confidence that partners have to share information with us if they feel that we do not have secure processes in place to protect their material while defending government actions. We fear that a sunset clause would introduce unnecessary uncertainty.

As I indicated before, the Constitution Committee did not recommend a sunset clause. In its report it said that the House may wish to consider the Bill being independently reviewed, but not renewed, five years after it comes into force; or rather it did not recommend renewal. The Government have accepted the Constitution Committee’s recommendations, and believe that the report and review provisions are sufficient to provide reassurance about how CMPs are used. I therefore beg to move that the House agrees with the Commons in their amendments.

[Lord Marks of Henley-on-Thames]

My Lords, I rise to speak to Amendments 19A to 19D in my name as amendments to Amendment 19, concerning review and renewal of the operation of CMPs in the legislation.

In the other place, as my noble and learned friend has explained, the Government conceded that the operation of Clauses 6 to 10 of the Bill should be the subject of a review after five years of the Bill’s operation. That is the effect of Amendment 19. As far as they go, the provisions of the amendment are welcome. They were introduced against the background of the recommendation of the Joint Committee on Human Rights in each of its two reports in November last year and February this year that the operation of Part 2 of the Bill should be subject to annual renewal. This amendment not only fails to meet that recommendation but, as it stands, has a number of significant weaknesses that make it frankly unfit for its purpose.

First, proposed new subsection (1) requires the Secretary of State on his or her own to appoint the reviewer. Yet one of the central complaints about the Bill, as my noble friend Lord Macdonald pointed out earlier, is that in practice it gives too much power to the state and to the Secretary of State in particular. The concerns focus not only on the degree to which the Bill sacrifices common-law principles of fairness and open justice but also on the relationship between the Secretary of State and the courts. That remains true notwithstanding the concessions, important though they are, that there have been on judicial discretion and equality of arms.

The Bill undoubtedly accords to the Secretary of State significant new power to influence how trials of some civil cases may be conducted. How the Secretary of State exercises that power and whether it is found in the light of experience to be either excessive or unnecessary will be fundamental questions for the reviewer to address.

Justice and Security Bill [HL]

Debate between Lord Wallace of Tankerness and Lord Marks of Henley-on-Thames

Tuesday 6th November 2012 Lords Chamber

[Lord Wallace of Tankerness]

My Lords, I certainly agree with the noble Lord that these proposals are controversial, difficult and complex. Indeed, they have already been the subject of much debate in your Lordships’ House. As I indicated, the Government believe that they are compatible with Article 6. Upon introduction of the Bill, I signed a statement that its provisions are compatible, and the Government have published their own summary of the human rights issues in the Bill, which we gave to the Joint Committee on Human Rights and which has been published. The definition of national security was debated in your Lordships’ House in Committee, and there are many reasons as to why national security is not defined in many statutes. The noble Lord asked if there will be a further opportunity for discussion. Indeed, there will be such an opportunity because the future business set down for the House indicates that the Report stage will be held on the 19th and 21st of this month. I anticipate some informed and robust discussions during those debates.

[Lord Marks of Henley-on-Thames]

My Lords, my noble and learned friend the Advocate-General will no doubt agree that the opinion of John Howell QC obtained by the commission needs to be taken seriously. Have the Government yet had time to consider how far amendment of the Bill might address the thrust of the criticisms he advances—in particular, by ensuring that its impact is strictly limited to material that would otherwise be subject to public interest immunity and to cases where otherwise no trial at all would be possible, and by giving claimants as well as the Government the right to have such material considered by a court, with the assistance of a special advocate?

[Lord Wallace of Tankerness]

My Lords, I can certainly assure my noble friend that the Government give serious attention to representations from the Equality and Human Rights Commission and to this particular opinion, as I have indicated. There is a good response to the two key concerns that have been raised. It is the Secretary of State who applies for the CMP, but it is nevertheless the courts which decide whether to grant a declaration and, thereafter, which material will be heard in closed proceedings. With regard to criticism of the standard of gisting, we believe, as we said in Committee, that following the judgment in the Tariq case the Supreme Court found that the requirement of fairness can vary from case to case. The Bill states that closed material proceedings must comply with Article 6, when it applies, and we leave it to the courts to decide what Article 6 requires in any case. I am grateful for the constructive proposal of my noble friend. He will be aware that as well as considering seriously the opinion of the ECHRC, we will also consider the comments made in Committee, and I think we will receive before Report stage the report from the Joint Committee on Human Rights. I certainly look forward to giving that the consideration it deserves.

Justice and Security Bill [HL]

Debate between Lord Wallace of Tankerness and Lord Marks of Henley-on-Thames

Monday 23rd July 2012 Lords Chamber

[Lord Marks of Henley-on-Thames]

I am sorry to interrupt my noble and learned friend but I am just confused as to how the Government can argue that a power which may be exercised to add or remove a court or tribunal in non-criminal proceedings—which by his own admission these are—cannot be said to extend to a coroner’s court. It was that problem that exercised the Delegated Powers Committee and we saw no reason for the conclusion for which my noble and learned friend is arguing.

[Lord Wallace of Tankerness]

We shall have to agree to differ. Considerable thought has been given to this and we believe that it would not be possible to extend the power here. I am always wary of putting “for avoidance of doubt” clauses into Bills, and I know parliamentary counsel also have anxiety about these things. If that helped, I would certainly be prepared to look at it to put that beyond doubt, although I do so with the caveat that by putting in such things, you have to watch you do not stir up more problems than the ones you are trying to resolve.

We do not believe that the order-making power here can be extended by this coalition Government or any future Government to inquests without primary legislation.

I would like to pick up on the points made by my noble friend Lady Berridge and the differences between civil proceedings, between parties and the inquisitorial nature of a coroner’s inquiry. The Government recognise that inquests have a unique role in our justice system. In inquests where intelligence evidence cannot be disclosed without risking national security and public safety, we will continue to use existing arrangements. In such circumstances, the Government can make a public interest immunity application to exclude the material. The coroner will exclude the material if he or she decides that the public interest in withholding the information outweighs the public interest in disclosing it. An inquest can also be converted into an inquiry under the Inquiries Act 2005. My noble friend made that point in regard to the inquest into the death of Azelle Rodney which could not proceed because neither the coroner nor the jury could see highly sensitive material. To allow all the material to be seen, the inquest was converted into an inquiry with terms of reference mirroring the purpose of the inquest.

With regard to the Mark Duggan case, it would be inappropriate for me to comment at this Dispatch Box on how the Inner North London and North London coroners propose to handle any sensitive material in their conduct of the inquest into the death of Mark Duggan. It is for the coroners concerned in these cases to decide the best course of action.

Finally, Amendments 70A and 70B would limit instead of remove the order-making power. Amendment 70A would omit the aspect of the power which would enable the adding or removal of a court or tribunal. We believe it is the key aspect of the power and so we could not accept it being limited in this way.

Amendment 70B would omit the aspect of the order-making power which enables orders to be made which amend or repeal any enactment, and I fully understand why Parliament is always wary of any such power. The provisions are for the situation where the definition of “relevant civil proceedings” is changed and certain supplementary or consequential changes are needed. An example of this is in subsection (4), and I hope that it meets the specific concerns raised by my noble friend Lord Hodgson. So, if a tribunal is added, Clauses 6 to 11 of the Bill may need to be adapted for use in relation to that tribunal. The power could be used to explain what “rules of court” mean for the tribunal because tribunals have “procedural rules” rather than “rules of court”. These sorts of differences would be reflected in the use of that power.

I hope I have been able to explain why the Government reached this position.

Fixed-term Parliaments Bill

Debate between Lord Wallace of Tankerness and Lord Marks of Henley-on-Thames

Tuesday 29th March 2011 Lords Chamber

[Lord Wallace of Tankerness]

It is not what the Government envisage. However, if a vote of confidence had been on 10 December 2012, holding an election on 1 May 2013, which the noble and learned Lord mentioned, might well be considered to be an abuse of the statutory power. Under judicial reviews, the court would not necessarily substitute its own date, but the Prime Minister would be required to nominate or recommend a date to Her Majesty that would be consistent with a proper exercise of the statutory power. It is highly hypothetical and unlikely, but it would not be unreasonable; if there had been a vote of no confidence and 10 days had elapsed in December 2012, setting an election date for 1 May 2013 would be an abuse of power. That would be widely recognised.

However, the point that I am making is that we do not believe that there should be the kind of restrictions set out in my noble friend’s amendment. They could run into practical problems for the very reasons that he illustrated, but, in practical political terms, it is not likely that a date would be set that would be seen to be an abuse by taking it too far.

[Lord Marks of Henley-on-Thames]

My Lords, I am grateful for the consideration that has been given by noble Lords and my noble and learned friend to the amendment. The problem that it sought to address was simply the question of the lack of a timetable. I am bound to say that the exchange we have just heard between the noble and learned Lord, Lord Falconer of Thoroton, and my noble and learned friend illustrates that there is—in theory, at least—scope for an abuse of power by a Prime Minister that could, perhaps in extreme and unlikely circumstances, lead to a challenge, because executive action of this sort might be justiciable and there is room for an abuse of power. The amendment simply seeks to address that.

Of course we are open to consideration of that time, but the noble Lord, Lord Grocott, talked of James Callaghan; it does not follow that because James Callaghan behaved well on that occasion everyone else necessarily would do so. As regards the number of weeks, it is right that there is a window of only a month, and that could involve a holiday period. However, the corresponding argument is that it may be undesirable for a vote of confidence in June to lead to an election being deferred until September or October, on the basis that holidays would intervene. We took the view that is worthy of consideration that it is more important to have an election than it is to avoid the holiday periods and allow them to be an excuse for not holding an election. I beg leave to withdraw the amendment.