Business of the House

Baroness Kennedy of Shaws Excerpts

Wednesday 4th September 2019 Lords Chamber

[Lord True]

I do not normally like to use the H word, but it will be printed in Hansard and I will not be applying for it to be expunged.

[Baroness Kennedy of The Shaws (Lab)]

I have listened to repeated references to hypocrisy, but the greatest hypocrisy of all is taking place before our eyes. I have listened to the noble Lord all afternoon: you have repeated over and again the same matters. You are filibustering. You are preventing us reaching a Bill of importance to this country, and you are doing it because you want to waste time. You do not want us to reach that Bill, which is about preventing no deal. That is the shocking thing. You are not interested in following through on what the elected House has done. The noble Baroness, Lady Noakes, gave it away in a moment when someone asked, “Why are you making a Second Reading speech; you can make that on the Bill when it comes”, and she said, “If we reach it, I will make it”. She, you and many others are trying to prevent us reaching that Bill. That is disgraceful. It is a real disgrace, and you should be ashamed. I am ashamed watching this. This House has the respect of the country. You are bringing it into disrepute.

[Lord True]

I would like to think that the noble Baroness will reflect on the discourtesy of her words.

--- Later in debate ---

[Baroness Kennedy of The Shaws]

The noble Lord accused noble Lords on these Benches of hypocrisy. In reply, I want to say that the greatest act of guillotine to take place was the introduction of a Prorogation to avoid debate. That was a fundamental guillotine that flew in the face of our democracy. That is why people up and down the country feel affronted by it. I regret to say so, but the noble Lord is carrying on that affront with what is happening in this House tonight. The continuation of this nonsense is an affront to our democracy.

[Lord Dobbs]

May I try to lower the temperature a little and smooth these choppy waters? I came into the House during the time of the coalition Government. I saw everything that I needed to know about filibustering from the Labour Benches when they tried to oppose so much of the then coalition Government’s constitutional programme. From an outside perspective, it appears that the general public look at us as Tweedledum and Tweedledumber. Can we back away from the idea that all fault lies on one side or the other and listen to my noble friend’s wise words?

Privileges and Conduct Committee

Baroness Kennedy of Shaws Excerpts

Monday 17th December 2018 Lords Chamber

[The Lord Privy Seal (Baroness Evans of Bowes Park) (Con)]

My Lords, I did not speak during the debate on 15 November, nor did the leaders of the other main political groups, despite all of us being members of the Privileges and Conduct Committee who unanimously supported its conclusions. We felt then, as now, that whether or not to endorse the committee’s report is not a party-political decision but a House decision. However, as Leader of this House, I feel that today I should speak briefly.

As the Senior Deputy Speaker has said, to an extent the recommendations of the committee’s report have been overtaken by Lord Lester’s decision to retire from the House last Wednesday. But it remains important for us to come to a conclusion on the Motion before the House in the name of the noble Lord, Lord McFall. For my part, I fully support it. I understand that the noble Lord, Lord Newby, is not intending to speak today, but he has asked me to make it clear that the report has his full support too.

I and my fellow members of the Privileges and Conduct Committee believe that the commissioner carefully and methodically followed the procedures set out for her by our Code of Conduct, which I am confident comply with the procedures of natural justice and fairness. Our commissioner is both impartial and independent. She sought and received instruction from the sub-committee in the way she approached the investigation. She ensured that Lord Lester was aware of all the points made by the complainant, and had time to respond to them, and she carefully evaluated all the evidence and explained why she reached her conclusions. A great deal of work went into the investigation of the complaint and into ensuring both parties were given a fair opportunity to comment, and that is only right: two people’s reputations were at stake.

During the debate on 15 November, much was said about the process followed by the commissioner not being fair, because it did not provide for cross-examination, as the noble Lord, Lord Pannick, has repeated. The absence of cross-examination does not mean that the process followed was unfair. Our code provides for an inquisitorial rather than an adversarial system to determine breaches. What is necessary—and what our code provides—is an impartial adjudicator who takes full statements from all parties, gives each party notice of the case made by the others, gives all parties the opportunity to respond and carefully reaches decisions by thorough testing and evaluation of all available evidence. That is what our commissioner did.

As a House, we should show that we support the processes that we ourselves have put in place and that we are capable of regulating ourselves. I am sure that I am not alone in being very concerned at the letter sent by 74 well-esteemed staff of this House expressing their disappointment in the outcome of our previous debate. As the noble Lord, Lord Pannick, said, this has not been a happy experience for any of us, but I truly hope that following our further debate today, noble Lords will support the report of the committee.

[Baroness Kennedy of The Shaws (Lab)]

My Lords, I was not present at the previous debate. Ironically, I was in India speaking to a gathering of senior judges about the failure of justice systems to deliver justice for women and the underlying problems, sometimes with the law but more often with attitudes, that persist in our societies to the detriment of women.

Had I been here, I would not have voted. I would have recused myself because of my friendship with Anthony Lester. I have known him since I was a young barrister. I have huge admiration for him, and my fondness for him and his family is considerable, but we do not sit in judgment in cases involving a friend or a colleague. No juror would sit in a case where a friend was in the dock; no judge would sit in such a case. That is because friendships colour our judgment. We do not want to think ill of a friend. We see their pain and feel their humiliation. We hear their side of the story and want to believe it. That is in the nature of friendship; we are partisan.

That was why we created in this House an independent commissioner. It was because we recognised that the risks of partisanship were great. We recognised that institutions often protect their own, as we had seen the scandals around the Catholic Church, the Anglican Church, the BBC, the police and different aspects of the establishment. Reflecting on all that, we created the current rules.

I ask the same question as the Senior Deputy Speaker: when the previous debate took place, who was in the House to make the case for the complainant, to speak as her friends and to speak of her character and achievements? That was why, when I read the Hansard of the debate, I was covered in gloom: it was an ill judged and misconceived debate. Although it was presented as being about process, the noble Lord, Lord Pannick, and others expressed views that implied they found such an accusation difficult to believe of their friend. That is how we all feel about our friends. The debate was presented as being about process, but it was not about justice.

All the tropes that imply that women are somehow not be to be relied on were presented to this House; for example, about delay. We have learned that delay is not a reason for not believing somebody, especially when they have experienced some transgression of a sexual kind. Things were said about writing something nice in a book about somebody who might have done something inappropriate to you, but probably every woman in this House will tell you how you get on with business after somebody has behaved inappropriately and try to normalise it so that your relationships can continue, especially if your promotion, your Bill, which you are trying to get through Parliament, or your pupillage might rely on the good will of the person who has crossed the line.

I want to remind the House of the terrible folly that has blighted this distressing business in the way that it has been discussed in the media and in this House: the confusion between criminal trial rules and disciplinary processes. This is not a criminal process—I want to emphasise that to many of the older lawyers in this House who do not seem to have kept up with the times and the disappointment that women feel about how legal processes fail them. This is a disciplinary process. Talk of proof beyond reasonable doubt, rigorous cross-examination and the need for counsel is wholly inappropriate.

Let us remember why: we are here dealing with an imbalance of power. That is the basis of the complaint. Women are complaining that their working lives and professional interactions are blighted by sexual harassment. There will be few women in this House who have not experienced it at some point in their careers. Many of us just learned to brush it off and get on with things but the young do not accept that any more; they want proper processes and they do not want it to be dealt with in the way that has been described by many of our older lawyers. Young women will not come forward to make complaints about powerful men if they are going to be subjected to Old Bailey-style quizzing in the presence of the very Lord they are complaining about.

Let us imagine that it is a young librarian in this House who has been groped by a Peer. Is she really expected to face him or his well-heeled lawyer? How do we create equality of arms when we have a Lord able to secure the professional services of a top QC and the young librarian can afford no such grandeur? Do we find some low-level lawyer and pay him or her out of the public purse when we are cutting legal aid so much to the bone that most people are having difficulty finding representation? Could we justify it? It was for all these reasons that Members of this House devised a system in keeping with most disciplinary procedures, using the inquisitorial method, not the traditional adversarial method. That means an independent assessor, arbitrator or commissioner investigating the complaint, sensitively testing its veracity, applying the same careful, probing attention to the account of the person complained of and then allowing each the opportunity to respond to the account of the other. The commissioner then reaches a conclusion on whether the complaint has probity.

I have sat in that role on a number of occasions. She has the advantage over any of us in that she has heard the live accounts of both parties. We invented this process without complaint at the time. I have no doubt that it could be improved and, as we go forward, I think it should be. Because of my own experience in these cases, sitting as the commissioner did, I suggest that it is better to sit with another assessor, as I usually do. I have always felt that I benefited from the help of others in evaluating credibility. The commissioner in this case has been subjected to wholly unjust criticism. She is a very experienced solicitor and we chose her carefully after a competitive process. She has dealt, in her 40 years’ experience, day in, day out, with the stuff of humankind, sitting as a judge in mental health matters. She is not an acquisitions and mergers lawyer, a commercial contracts lawyer, or someone dealing with fine points of law in the Supreme Court, but she has dealt, day in, day out, with the stuff of human frailty—human falls from grace and issues of dishonesty and honesty. We burdened her with the responsibility of judgment on our behalf and she deserves our respect, rather than what she was treated to.

I shall mention one area where I think she may have been wrong in law. She took the view that the allegations stood or fell together. While she may have felt handicapped by Lord Lester’s position that all the matters were fabricated, it was quite possible, for example, that there was inappropriate conduct and an unwelcome sexual pass but that the business of having a discussion about coming into this House, perhaps sitting on the Cross Benches—a discussion that many of us might have had with talented persons we thought might have contributed to this House—might have been misunderstood. The two may have become conflated, so to have felt that the allegations all stood or fell together seems to me a mistake. Evidence is not a seamless role: you can be absolutely truthful and right about one thing and mistaken about something else. The Privileges Committee, however, agreed with the commissioner’s decision and this House will have to make a decision too.

I suggest to the House that those who are friends of Lord Lester, like me, should not be voting. I will not vote. It would not be appropriate: I am conflicted between my friendship with Lord Lester and my desire to see greater justice for women. I believe that we still have not got the system for women right.

Before I finish, I want to say that I think the suspension of four years was too long, but that boat has sailed now that Lord Lester has resigned.

[Lord Pannick]

As a matter of information, it is not my intention to call a vote today.

[Baroness Kennedy of The Shaws]

That is a source of relief to many of us. It would have been very inappropriate, as it was on the last occasion.

I feel very sad about this whole business. I am sad for the complainant. I am sad that the commissioner has had a tough time. I am sad for Lord Lester, his wife and his family. I want us to make a pledge to behave better. As men and women, we are trying to remake our world. We want an equal society. We will achieve that only when there is mutual respect between men and women. We can only do that together, as men and women. This House should see that we do that as we go forward. These processes have to be good enough for the job.

Brexit: Withdrawal Agreement and Political Declaration

Baroness Kennedy of Shaws Excerpts

Thursday 6th December 2018 Lords Chamber

[Baroness Kennedy of The Shaws (Lab)]

My Lords, the strapline that has been used to sell Brexit is “bring back control”. I cannot help but think that it was probably cynically invented by advertising men on behalf of the masters of the universe who really do want control. I am afraid that the leading lights of the Brexit movement and the people behind them—I emphasise that—are in the business of breaking up Europe as a trading bloc because it sets standards too high for the maximisation of profit. It regulates for the protection of workers and the environment and for the maintenance of standards in commodities and products. It involves collaboration on tax avoidance and restrains corporate excesses. Its members collaborate in dealing with serious crime, with matters like the exploitation of workers, and with criminal matters such as trafficking and the laundering of money.

You can understand why there are people who might be interested in getting rid of some of those regulations. For fundamentalist free-marketeers, minimising regulation is a religion, and you have only to spend time with them to see that. That is what this is about: trading without constraint. That is the attraction of World Trade Organization rules: the idea that we do not have to live by, and set, the standards in the way that we do as part of the EU bloc.

So this is in fact an elite project being sold to people who are already suffering the consequences of globalisation. Those people are already victim to the removal of safety nets and protections—austerity was used for that—but Brexit is being sold as a project of liberation, and that is dishonest. The dishonesty is not only fraudulent, it is mindlessly cruel. I say to the noble Lord, Lord Mancroft: you cannot possibly know about the lives of ordinary people if you can be sanguine about the idea of us leaving Europe altogether and turning our back on it.

To be utterly careless of the consequences for many in our population is shocking. There is now recognition across the board of the financial damage to the economy and the lives of people in Britain—particularly the poorest, as some have suggested, but also the middle classes, the majority—that would be caused by no deal but also by the deal being offered by the Prime Minister. Even the wild elements of the Brexit leadership, who want out at any cost and, as we have heard, actually want no deal, admit that there will be detrimental financial consequences but claim that it will be worth it in the end. They will say that as they sit and eat cake like Marie Antoinette. They will happily throw the poorest to the wolves. They also claim to be devoted unionists but do not seem to care very much about our relationship with Scotland and are prepared to put Northern Ireland at risk. That claim of concern for peace in Ireland is phoney, as we can see from the way that the technological fix has been promoted when we know it cannot yet work. There has to be a customs union.

Their ideological position makes them blind to good argument. How can Jacob Rees-Mogg, with a bare face, move the headquarters of his own business to Ireland to ease his pain while the rest have no such option? How can the noble Lord, Lord Lawson, apply for a French passport to ease his travel arrangements to his house in France when no such convenience is available to most of our children who want the option of working in Europe? To the leading lights of the Brexit movement, freedom means every man for himself without restraint. I say “man” advisedly because it is poor women who will suffer the most. Some 90% of single parents struggling on low wages are women. You can be sure that employment protections will disappear if there is no deal. Part-time workers, who are mainly women, are protected—they have holiday pay, maternity rights and so on—yet we hear a constant moan about the burden of those employee protections on business. That is not a burden; it is what decent societies expect of good employers. As the most reverend Primate the Archbishop of Canterbury said yesterday, there are moral issues at the heart of this debate, and we should not forget it.

On the issue of law, I am very concerned that the withdrawal agreement put forward by the Prime Minister still does not go far enough in protecting EU citizens living in this country. What happens to their voting rights in European elections? What happens if, for example, they are posted somewhere for five years? Do they lose their opportunity of being protected as citizens here in this country? Often they have homes and families here now.

There is little reassurance on the law front. The whole business of having put a red line around the European court means that we are now setting up arbitration panels. If you examine the report, you will see that it is not suggesting that they will be totally transparent and operate like proper courts, because of course we cannot admit to their being courts due to this nonsense about red lines.

I am very concerned about the loss of the European arrest warrant. It is really important in collaboratively dealing with crime that crosses borders. Extradition processes will be difficult with somewhere like Germany, which has provisions in its constitution saying that it will not hand over its citizens to anyone else. There are other countries in Europe in the same position. The Euro-warrant rose above all that, and now we are going to be outside it.

The hypocritical behaviour of some of the leading Brexiteers betrays deep cynicism. The purpose of this project is really deregulation. It is an elite project for extreme globalisation, and the people who will suffer the most are the majority of the citizens of this country. It will line the pockets of a few. This is ideology gone mad. It is ideology that is red in tooth and claw; it says the welfare state should be cut to the bare minimum, opposes trade unionism and wants the lowest of tax levels. It has no roots in one-nation conservatism or social democracy, and as far as I am concerned we are going to see our nation suffer as a result of this blind ideological move.

I believe that many people in this country have had the opportunity, as the discussions and negotiations have unfolded, to see what this is really going to mean. I will absolutely vote against the withdrawal deal that the Prime Minister has come back with because it is not in the interests of this country, and I will certainly want to see “no deal” taken off the table. We should be taking this back to the people, and if the Prime Minister were sensible she would initiate that by saying, “Are you in favour of my deal or do you want to remain?” I hope that is the course that is eventually taken.

Salisbury Incident Update

Baroness Kennedy of Shaws Excerpts

Monday 12th March 2018 Lords Chamber

[Baroness Evans of Bowes Park]

I thank my noble friend for his comments. This is of course an extremely serious situation. As the Prime Minister made clear, and as I did in repeating her Statement, we will return to the House as soon as further conversations have been had to make sure that the House is fully updated on these extremely important matters. We need to come together and make sure that we take action to defend this country and keep our citizens safe.

[Baroness Kennedy of The Shaws (Lab)]

My Lords, I welcome the Prime Minister’s Statement and the strong language that she has used in deploring what has taken place. I know she must be basing that on intelligence and information she has received in the last days, which point towards it being “highly likely”—a high standard of proof—that Russia was responsible for these poisonings. We know that, even if this was not the work of Russian agents, there is evidence that Russia frequently outsources some of this kind of activity. Having watched closely the developments around Litvinenko, my concern is that we did not learn the lessons then and put in place a Magnitsky law. I want to challenge the idea that the pieces of law that we have managed to put together from different legislation that has gone through this House in recent years fill all the gaps; it is my suggestion that they do not. We had to fight very hard—

[The Countess of Mar (CB)]

My Lords, I am sorry to interrupt the noble Baroness but is she aware that this is the time for Back-Bench questions, not for statements or discussion?

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[Baroness Kennedy of The Shaws]

I just wanted to put it to the House and the Minister that the Magnitsky law has not been fulfilled. For example, opposition is still being made to the Bill on visas that I put before the House just before Christmas. We are not seeing visas being refused to government officials travelling here from Russia. We know who many of them are—they own properties in Belgravia and apartments all over London—but we are not refusing them visas. The likelihood is that Putin would take really seriously our measures to prevent them coming here and taking part in activities here with impunity.

[Baroness Evans of Bowes Park]

As I said in response to the noble Baroness, Lady Smith, we have a range of powers. For instance, we have a power to exclude from the UK non-EEA individuals whose presence is not conducive to the public good; EEA nationals may be excluded on the grounds of public policy or public security; and a person may be excluded for a range of reasons, including national security, criminality, involvement in war crimes, crimes against humanity, corruption and unacceptable behaviour. As the Prime Minister made clear in response to questions in the other place, we will continue to keep these matters in mind and, if we feel further action needs to be taken, we will consider doing so.

European Union (Withdrawal) Bill

Baroness Kennedy of Shaws Excerpts

2nd reading (Hansard): House of Lords
Wednesday 31st January 2018 Lords Chamber

[Baroness Kennedy of The Shaws (Lab)]

My Lords, since the referendum this nation has been on a rather incredible journey. Our learning curve has been huge; at least for most of us in Parliament, certainly for me. There are ideologues who do not want to listen to the fine detail about anything, but there cannot be many of us who have not discovered through debate, conversation or the media that the strata of connections and collaborations between the nations of Europe run very deep and to the benefit of us all.

I find myself repeating, “if only”. If only the national debate before the referendum had been as rich in information. If only people had known just how much poorer this rupture will make them and their children. If only they had seen how it would diminish us as a nation and reduce our power in the world. If only people had known about the damage to our constitution that the referendum would unleash, with all the talk of “the will of the people”, forgetting that we live in a representative democracy and that that will is expressed through having representatives in Parliament, precisely because they immerse themselves in the complexity of issues.

If only there had been a proper debate about cross-border trading always requiring an overarching international court of some kind. All the bluster about wanting our own courts to decide everything that affects us did not deal with the fact that if you trade with Poland the Poles are not going to settle for a UK court deciding the outcome of a dispute. The World Trade Organization, out there in the great blue yonder to which Brexiteers aspire, also has its own court to deal with disputes. Norway and its little grouping in their semi-detached relationship with Europe had to invent the EFTA Court for precisely that reason.

If only people had been truly informed about the high level of medical and scientific advances—the creation of medicines and cancer remedies—that are made because of experts working closely together. There are the benefits to our universities in advancing knowledge and understanding. Defence and security collaborations prevent conflict and crime. There is consumer protection. There is the risk now to peace in Ireland. Was it ever fully explained that the customs union was key to a borderless Ireland?

If only we had not had a slanging match but instead had grown to understand the extent and benefits of the financial and trading relationships that flowed from our membership. If only we had spoken softly about how important it is to work with our closest neighbours because it stops wars and that together we can keep a check on the rise of extremism. With neighbours, there are inevitably aspects of the connection that grate on us and which we would like to change, but that should never be the reason for pulling up the drawbridge.

I am a lawyer, and because of the nature of my practice I am all too aware of the incredible advantages of Europe, Eurojust and a European arrest warrant. The underbelly of markets is black markets, and today they cross borders. We have trafficking in drugs, arms, fissile material, body parts, human eggs, babies, and women and children for sex and domestic servitude. You cannot deal with that kind of crime without close collaboration and developed mechanisms, and these require reciprocity and a level of legal harmony.

A few weeks ago, the House of Lords European Union sub-committee on justice issues, which I chair, heard from a very distinguished judge on the EFTA Court. He had been its president for 12 years and had sat on it for years beforehand. I asked him whether we could be part of the Euro-warrant system—EFTA is not part of that system—without the European Court of Justice. His answer was no.

So how are we going to collaborate on all these issues of crime? Legal processes affecting families, individuals and businesses are reliant on essential regulations that have been very successful and to whose creation we have been party: Brussels 1, Brussels 2 and the maintenance regulation. A woman married to an Italian can go to her local court and get an order if he shoves off back to Italy and is not paying maintenance for his children. A company that suddenly has a default from its trading partner in Poland can go to a court in Middlesbrough and get an order that will be effective over there. That is done because of mutuality, and it is reciprocal. I fear that bringing law in here, nailing it down and saying, “We are introducing it”, does not deal with that reciprocity. We are going to have to have 27 separate relationships in order to make it happen.

The Henry VIII powers still have not been adequately constrained in the amendments that passed in the Commons, and I am very concerned about what the implications will be for the rights of individuals in this country. We have been given an account that employment rights will not be eroded. I am afraid I do not have much confidence in those promises because we know that a section of the Conservative Party is very keen to deregulate and remove employment protections around the working time directive, the agency work directive, pregnancy protections and so on. Across the whole of Europe there is a European protection order to deal with violence against women and girls. Did your Lordships know that? Of course not; most people do not.

What about the promise of meaningful debate at the end of all this? There has to be a clarification about the options that will be available, because one of the options has to be to remain. I hope the amendments will nail down some of these problems. I am most concerned about the excision of the Charter of Fundamental Rights from the Bill. That should set alarm bells ringing because it is telling us that rights are not a high priority for this Government.

It is hard for people to change their minds, but with more complete information people do so. We do it in our daily lives. I will deeply regret it if we do not put information clearly in front of people. I am not going to settle for a bad deal, and if that means a second referendum then noble Lords can count on me being behind it.