Northern Ireland (Executive Formation) Bill
Lord Anderson of Ipswich ExcerptsWednesday 17th July 2019
(5 years, 3 months ago)
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Lord Anderson of Ipswich (CB)
My Lords, I shall speak to Amendments 2 and 3 but I do not intend to press Amendment 2, which on reflection adds nothing of substance to Amendment 3. These amendments, which are identical to those moved with cross-party support in Committee, provide that Parliament is to sit at specified intervals between September and, at the latest, December to consider the progress reports already provided for by Clause 3.
Amendment 3 serves a useful purpose in the context of this important Bill. As pressure is exerted to reconvene the Executive, there is every reason for both Houses of this Parliament to review and interrogate such progress as is made. The strong interest of this House in the content of those reports is demonstrated by the amendments agreed on Monday and by those which are yet to be considered today. But the greater significance of Amendment 3 lies less in the subject matter of the debates for which it provides than in the more fundamental fact that Parliament must be in session for such debates to take place.
If enacted, these amendments will express Parliament’s expectation of being consulted on not just these reports but an even more pressing political issue: the future of our relationship with the European Union. If Parliament were to endorse a no-deal Brexit, as it has not done to date, then from my point of view there could be no democratic argument against it. But for that decision to be left to our next Prime Minister, elevated to that office by members of his own party and freed of any requirement to obtain the consent of Parliament, would be another matter altogether. Before the beginning of the current leadership campaign, the notion that Prorogation might be used for the express purpose of silencing Parliament on Brexit could safely have been dismissed as fantasy but, extraordinary though it may seem, that prospect has not been disavowed by the leading candidate and, if reports are to be believed, cannot even now be ruled out.
The situation is uniquely grave because if we are driven over the cliff on 31 October, there is no way back up. An event that occurs while Parliament is prorogued cannot simply be reversed once Parliament is sitting again. So even a short Prorogation, if suitably timed, would permanently deprive Parliament of its voice on this most significant of political issues. Advice to Her Majesty to prorogue Parliament in such circumstances would subvert the principle that the Government are accountable to Parliament and present the monarchy with a highly unwelcome dilemma: no one could safely predict the possible consequences. It is not surprising, therefore, that the Attorney-General is reported to have told Cabinet last month that Prorogation would be unconstitutional and improper. My noble friend Lord Pannick, who cannot be in his place today, described it on Monday as “unlawful” and “a constitutional outrage”.
The legal effects of Amendment 3 will no doubt depend on the circumstances. It would be a matter for any court that may be called on to consider the matter. Others of your Lordships are better placed to judge their political force, but that too would surely be substantial. The Minister helpfully accepted on Monday that it was right and proper for this House to find a means to hold the future leader of this country to account, but when challenged on his statement that,
“there are other means by which it can be done”,—[Official Report, 15/7/19; col. 38.]
explanation came there none. That put me in mind of Iris Murdoch, who wrote, in a rather different context, that we can pass,
“in a second from the time when it was too early to struggle to the time when it was too late to struggle”.
Your Lordships now have an opportunity to assert the necessary role of Parliament in these strange and alarming times. I invite your Lordships to do so by supporting Amendment 3.
Viscount Hailsham (Con)
I shall speak very briefly to Amendment 3A in this group, which is in my name. It might be for the convenience of the House if I say that it is not my intention to move this amendment, largely because it does not add substantially to the amendment in the name of the noble Lord who just spoke with great eloquence. Suffice it to say that I very much support his amendment and if he is minded to test the opinion of the House, I shall vote in favour of it.
Lord Duncan of Springbank
The aspect of a no-deal Brexit that has been discussed here is an important one and has been discussed on a number of occasions in your Lordships’ House and in the other place. It is important to Northern Ireland: I do not doubt that because I have seen it myself. I recognise and have said on more than one occasion how important it is and how different it would have been had an Executive been in place during this period, when those voices could have been part of a wider debate. There is not a single person who does not regret the fact that those voices have been silent for far too long when we could have had them contributing, not least on the question of the Irish border. But we are talking today about a simple and focused aspect, which is extending the window during which there shall be no elections in order to secure a newly formed Executive. That is the key to the discussions today and should be the focus. I am also very happy to get a call from Mr Hunt.
The important thing to stress now is that at this point, I do not believe that the amendment takes us in the right direction. On that basis, I ask the noble Lord, Lord Anderson, to withdraw his amendment.
Lord Anderson of Ipswich
I am most grateful to all noble Lords who have spoken and in particular to the Minister for his courteous response, I do not think that we should prolong things by hearing any more from me. The issues are clear. I do not propose to press Amendment 2, but I want to test the opinion of the House on Amendment 3.
“(2A) The Secretary of State must make arrangements for—(a) a copy of each report published under subsection (1) to be laid before each House of Parliament by the end of the day on which it is published,(b) a motion in neutral terms, to the effect that the House of Commons has considered the report, to be moved in the House of Commons by a Minister of the Crown, and(c) a motion for the House of Lords to take note of the report to be tabled in the House of Lords and moved by a Minister of the Crown.(2B) The motions required under subsections (2A)(b) and (c) must be moved in the relevant House by a Minister of the Crown within the period of five calendar days beginning with the end of the day on which the report is laid before Parliament.”
Northern Ireland (Executive Formation) Bill
Lord Anderson of Ipswich ExcerptsMonday 15th July 2019
(5 years, 3 months ago)
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Lord Anderson of Ipswich (CB)
My Lords, Clause 3 already provides for the publication of regular reports on progress towards the formation of an Executive in Northern Ireland, and for those reports to be laid before Parliament—one by 4 September and another by 9 October, with further reports at intervals of no more than 14 days. Amendments 6 and 7, which have support from all parts of the House, require those reports to be debated in both Houses, pursuant to Motions to be moved within five calendar days of each report being laid. I hope that there will be as few of those reports as possible, because when they stop it will be because the Executive have finally been formed. I hope also that the debates that these amendments provide will help to keep up the pressure for that long-overdue development.
However, let there be no doubt about the main purpose of the amendments. They are defensive fortifications against the possibility—unlikely, no doubt, but pointedly not disavowed by the leading candidate—that the next Prime Minister will advise Her Majesty to prorogue Parliament for the express purpose of achieving a no-deal Brexit to which Parliament is opposed. I am no enthusiast for procedural gambits—today of all days, we should be wary of anything that is not cricket—but to my mind these amendments are abundantly justified by the extraordinary gravity of what is apparently being contemplated.
This would not be a standard prorogation of Parliament. The purpose of the prorogation extending beyond 31 October would be to bring about an irreversible change not just to our trade relations but to our central political and economic alliance, without putting anything in its place. If the House of Commons were to give its democratic approval to such a momentous step, of course it must happen—nothing in these amendments would impede, or is intended to impede, that—but for Parliament to have its voice removed precisely because of its anticipated opposition would be astonishing, unconstitutional and without precedent in recent times.
I accept of course that prorogation has attracted controversy in the past. A technical use of it was made in 1948 to fulfil the requirement in the Parliament Act 1911 that a Parliament Bill be approved by the Commons in three successive Sessions. In that case, though, a clear majority of MPs desired the legislation to pass and were in favour of prorogation for that purpose. That episode pales into insignificance when compared to what it seems is now so casually contemplated: a direct assault on the sovereignty of Parliament itself, aimed at circumventing its will irrevocably on one of the central questions of our time.
Lord Forsyth of Drumlean
My Lords, is the noble Lord right to describe what happened in 1948 as a technical matter? It was moved by a Labour Government to impose their nationalisation of British steel, which was opposed by this House, and to remove the ability of this House to delay the legislation. How can that be described as a technical matter?
Lord Anderson of Ipswich
What happened in 1948 was a prorogation to give effect to the provision of the Parliament Act 1911 that approval of the Commons was needed in three successive Sessions. The key distinction between that situation and what is proposed now is that it was a course that the House of Commons desired and was prepared to see go through.
Lord Cormack
Would the noble Lord also remind the Committee that in 1948 there was, relatively speaking, a handful of Members in this House sitting on the Government Benches, and several hundred on the Conservative Benches as the Opposition?
Lord Anderson of Ipswich
I am very grateful to the noble Lord for the point he makes. However, getting hung up on an entirely different precedent from 1948 and suggesting that it might be in some way determinative of the position which we are now asked to contemplate is, I would suggest, too ludicrous to bear.
Baroness Smith of Basildon (Lab)
It may help to remind the Committee that the position to which the 1948 prorogation gave effect was the commitment of the Government’s 1945 election manifesto, which had overwhelming support from the House of Commons.
Lord Anderson of Ipswich
The noble Baroness makes another very good point. I refer to 1948 simply to say, first, that prorogation has been controversial in the past, and, secondly, that it pales into insignificance compared with what we are now asked to contemplate.
Those who contemplate prorogation not only are heedless of the sovereignty of Parliament but risk plunging the monarchy into the heart of an intense political dispute. We saw how this could happen in Canada in 2008, when the Governor General, as the representative of the Crown, was required to adjudicate on a request for prorogation that was widely seen to be politically motivated, and only granted it subject to an undertaking given by the Prime Minister. I appreciated the dry understatement of Catherine Haddon of the Institute for Government when she said last week:
“A constitutional showdown between Parliament and the executive of the order of the Civil War is definitely something that the palace would prefer not to be dragged into”—
but she made a serious point.
If agreed, these amendments will serve two purposes: the sending of a political message and the sharpening of a legal challenge such as that already mooted by Sir John Major, should it be needed as a last resort. My noble friend Lord Pannick made a powerful case in the Times last month for the proposition that the courts, if invited, would come to the rescue of parliamentary sovereignty, as they did on the basis of the noble Lord’s submissions in the Miller case. Over 30 years, I have learned to bet against the noble Lord only rarely and I would not do so on this occasion. One who has done so is the legal academic Robert Craig, who recently suggested that the courts would decline to intervene because,
“there is no particular statutory provision that would be frustrated by prorogation”.
To the extent that there may be merit in that view—and I accept that absolute certainty in this area is difficult to achieve—that is all the more reason for supporting these amendments.
I regret that it has been necessary to table them in the context of this Bill, but they will put beyond doubt the resistance of Parliament to an undemocratic and profoundly discreditable device. I beg to move.
Viscount Hailsham (Con)
My Lords, I rise very briefly to support the amendment which the noble Lord, Lord Anderson, has argued for so eloquently. This amendment, to which I set my name, has only one purpose: namely, to make it more difficult—
Lord Duncan of Springbank
It would be easy to answer that in a simple way, but I suspect that tucked inside the question is a matter for greater constitutional scholars than I. I stand before noble Lords not, I am afraid, as a lawyer but as a humble geologist. I therefore feel ill-equipped to answer a question of that august nature.
In returning to the point before us, I say that this is not the right way to achieve these ends. The other place has spoken on these matters. It has spoken in a voice which we have heard on other issues and should hear today. I would ask that these amendments should not be pressed. I do not believe that they give comfort to the ongoing talks in Northern Ireland, and nor do they progress the important aspects for which those talks have been set up.
Lord Anderson of Ipswich
My Lords, I am grateful to the Minister and noble Lords, and for the support that these amendments attracted. I hope it is now clear that it is not the purpose of this amendment to prevent the United Kingdom from leaving the European Union on or before 31 October; it would not be apt, and it is not intended, to do that. I am grateful to the noble Lord, Lord True, for his research and I am delighted to have him as a social media follower, but my views on the wisdom or otherwise of Brexit are no more to the point of this amendment than are his.
I listened carefully to everything that was said and it still seems inescapable that, if there are any fetters at all on the absolute power of the Government in this matter, those fetters must be in the courts, in Parliament or, as a last resort, in the person of the monarch. I did not detect any enthusiasm from those who spoke against the amendments for any of those options. I found myself wondering what checks or balances on the authority of the Executive they were minded to acknowledge —but there we are. In short, I am undeterred by what I have heard. It may be—it is very likely—that I will come back to this on Wednesday. But, for the time being, I beg leave to withdraw the amendment.
Parliament: Freedom of Speech and the Rule of Law
Lord Anderson of Ipswich Excerpts(5 years, 5 months ago)
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Lord Anderson of Ipswich (CB)
My Lords, we all have our prejudices. Mine, in common perhaps with the noble Lord, Lord Hain, include unease about the use of non-disclosure agreements in the employment context—particularly where bullying and harassment are concerned—and a strong belief that in corporate, as in public, life, sunlight is the best disinfectant. Hence the importance of dispassionate and disciplined legal analysis, exemplified by the case to which the noble and learned Lord, Lord Brown, referred in opening, and in which I declare a remote interest, having been instructed in the past on unrelated matters on behalf of one of Sir Philip Green’s companies, and on behalf of the owners of the Telegraph group.
The High Court favoured the public interest in publication. The Court of Appeal, having carefully weighed what it referred to as,
“important and difficult policy considerations”,
gave precedence to the public benefit in the enforcement of settlement agreements freely entered into by the parties. Legal principles developed over many years were argued out and applied in a way that held the ring, pending a speedy trial by judges with the experience and aptitude to do so.
Of course, the development of the law should be robustly debated and criticised in Parliament. We are in the law-making business. If the judges take a wrong turn, it is open to us to reverse it. One thinks of the long history of the admissibility of complainants’ sexual history in rape trials. No legal topic could, or should, possibly be considered off-limits in this House. However, to ignore a court order and so prejudge the result of a trial is an entirely different matter. What would we think of a Supreme Court that overrode the Court of Appeal on the basis of an interview with a single witness, and without troubling to read the judgments of the courts below? Yet if the noble Lord, Lord Hain, is right, then not just he but any Member of either House would be entitled to do exactly that, because his or her personal morality suggested that it was a good idea.
The noble Lord told the commissioner that he was motivated by human rights, and on human rights his record is well known and highly respected, not least by me. But this is an area where rights conflict. There is the right of the public to be informed, certainly, and the countervailing privacy rights of the two complainants mentioned by the noble Lord, Lord Trevethin and Oaksey, who had signed non-disclosure agreements and supported the application for an injunction. Crucially, there is also the right of Sir Philp Green and his companies to a judicial determination of their legal rights, guaranteed by Article 6 of the European convention.
The noble Lord, Lord Hain, told the commissioner that he was not seeking to challenge the decisions of the judges, and that he totally respected their authority. However, whatever his intentions may have been, the foreseeable result of his actions was to pre-empt their jurisdiction and prejudge the outcome of the case. Were this matter to be considered in Strasbourg, our system would be scrutinised as a whole. At the very least, as we know from the A v UK case, the European Court of Human Rights would need to be satisfied that there are strong mechanisms in place to prevent privilege from being abused. That case would be a hard one to make, given the absence of a Speaker who controls our proceedings, the limited jurisdiction of the Parliamentary Commissioner for Standards and the lack of mechanisms for redress.
In his recent lecture to the Commonwealth Law Conference, the Lord Chief Justice observed that for almost 300 years it did not appear to occur to any Member of either House that it was appropriate to use the freedom of speech in Parliament to undermine an order of a court. The practice seems to have emerged in the 1970s—ironically, not long after the sub judice rules were formalised. Since then, the pace has picked up. In his lecture, the Lord Chief Justice identified five cases in the past 10 years, only one of which he discounted as inadvertent.
What is the solution? I freely defer to the experience of those who have been in this place much longer than I have, though I respectfully doubt whether the Lord Speaker’s Written Statement of 29 October, welcome though it was, is enough. I have not heard anyone say that we should subject parliamentary sovereignty to the power of the judges, as the noble Lord, Lord Hain, characterised the argument. However, can we not at least consider the ways in which our code of conduct could be beefed up to give the commissioner jurisdiction over the central issue in these cases, and not just questions of conflict of interest? That would avoid the need for these matters to be ventilated in this Chamber in the context of individual cases, which currently seems to be all we can do to register our disappointment or dismay.
I suspect that we also need to achieve clarity about the application of the sub judice rule, or some broader rule, to matters pending before tribunals; to private proceedings in this House, such as Select Committee meetings in closed session; and to cases in which final orders have been made, such as injunctions or orders for anonymity in criminal or family cases. It is seductive to be placed above the law, and it may be tempting to do nothing in the hope that the problem will not get worse. However, the threat to justice is real. We need to get our own House in order, and I hope we will.
Brexit: Negotiations
Lord Anderson of Ipswich Excerpts(5 years, 11 months ago)
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Lord Anderson of Ipswich (CB)
My Lords, Denmark and Ireland joined the Common Market with us in 1973 and some predicted that they would follow us out. However, the latest Eurobarometer poll, taken this spring, showed that 75% of Danes and 91% of Irish thought that their countries had benefited from being members of the EU. Across the continent as a whole, we are seeing the highest levels of satisfaction with the EU in 35 years. Brexit has achieved this at least: by deciding to leave we have fortified the others in their desire to stay in the world’s largest and most frictionless trading bloc, its strongest promoter of civilised values and its only regulatory superpower.
We have all been formed by our own experience of Europe. In my case, it was as a junior in the office of Lord Cockfield, the architect of the single market; as an advocate for 30 years in the courts where its principles were worked out; and, after 1989, as a visiting teacher in places where—as Mrs Thatcher had prophesied in her Bruges speech—people were once again starting to enjoy a full share of European culture, freedom and identity. Despite that perhaps unusual enthusiasm for the European project, I believe that we could do worse than this agreement. I see the backstop as an opportunity for Northern Ireland rather than a threat. The procedure for ending it is both fair and inevitable. By providing so carefully for an orderly withdrawal, it demonstrates how disorderly a no-deal Brexit would be. If we need to come out, this agreement enables us to do so in a grown-up way.
However, it also demonstrates the greater folly of our present course. It binds us to EU rules while removing all representation and influence. Our historic leadership role in areas from sanctions and security to financial services and the internal market will abruptly end. As to the future relationship, we might have a long wait for the struts and girders to which my noble friend Lord Kerr referred. The intention apparent from the seven pages is already plain: to pay a heavy price for the primary goal of ending free moment in terms of our exclusion from other economically vital elements of the single market. The next four years at least will be consumed by negotiations that will make these ones look simple, and not only with the EU. Other pressing priorities will be relegated, as they have been since 2016. We cannot hope to end up with the same benefits as we have now. That is not the basis on which Brexit was sold.
If I had a meaningful vote today—for all the great respect that I have for the Prime Minister and for those on the ground who negotiated and drafted this workmanlike agreement—I would use it to seek an extension to the Article 50 deadline so that the public could vote for the first time on whether to accept this predictably inadequate Brexit deal or to cancel the whole unhappy project.