House of Lords Reform Bill [HL]
Lord Brown of Eaton-under-Heywood Excerpts(9 years ago)
Lords ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Lord Brown of Eaton-under-Heywood (CB)
My Lords, an awful lot of water has flowed under Westminster Bridge since the Bill had its first reading on 26 May last year. What nine months ago may have seemed an interesting, imaginative and perhaps even sensible set of proposals now seems, I suggest—if the noble Baroness, Lady Jones, will forgive me for saying this—rather less so. We all know the concept of a probing amendment but I would say that this is rather like a probing Bill, and it can best be viewed surely as no more than a means of encouraging, if we need encouragement, yet further thinking about the direction we want this House take.
Now that we have a Lord Speaker’s committee, chaired by the noble Lord, Lord Burns, looking into the whole problem of size, which I suggest is our core problem reputationally, the Bill can take its place as a response to that committee’s consultation paper—precisely, indeed, as the noble Baroness suggested in a helpful letter that she circulated last week. I suggest, though, that although the noble Baroness is to be commended on advancing this as yet another of the many schemes advanced down the years by thoughtful Peers recognising that we are an un-ideal body and intent on trying to look constructively ahead, it is not a Bill that could ever command the consensus approval of this House.
For my part, with the best will in the world, I cannot support much of her approach. There are many provisions within it with which I profoundly and fundamentally disagree, but others have already made most of the points that I wished to make, and I deplore mere repetition. I put on record my support for the fairly well-known approach adopted by the group of the noble Lord, Lord Cormack, the Campaign for an Effective Second Chamber, in which the noble Lord, Lord Norton, plays a huge part. His magisterial analysis and discussion of the Bill said much, if not all, that needs to be said. Perhaps at this point I should simply adopt the response to the Bill that he suggested and sit down—but I will make just one or two very brief points.
First, like most noble Lords—although not, alas, the noble Lord, Lord Scriven, and one or two others on that side of the House—I could never support an elected House, whether or not, as proposed here, there were second-class non-voting Peers sitting and speaking alongside the elected elite. I share the view of those who regard an elected House as the worst of all possible worlds. The Chamber would lose much of its talent. It would surely have few experts. Many on the Cross Benches would not dream of standing for election. Instead, a body of Peers who would then have acquired more obvious democratic legitimacy would inevitably be vying with the other House for real power.
Surely we are most valuable if we remain as a House of elders. That is what we are: we bring the wisdom of age, experience and expertise to the issues of the day and to the scrutiny of legislation, which emerges in increasingly defective form from the other House.
Lord Scriven
I appreciate what the noble Lord says, but does he accept that in a technologically fast-moving world we need not just the expertise of elders? Younger people understand this world far better, and their expertise is needed.
Lord Brown of Eaton-under-Heywood
I applaud the appointment to this House of people such as the noble Baroness, Lady Lane-Fox. If that meets the noble Lord’s point, so be it. Of course I do not suggest that you have to be quite as old as I am to justify your place in this House.
My second point is a narrow one on Clause 1. I am not a hereditary, but as I understand it, Clause 1 adopts an altogether more dramatic, radical and draconian approach to hereditaries than the Bill of the noble Lord, Lord Grocott, and is altogether less appealing. We are looking to try to achieve consensus in this House. This is hardly the way forward to consensus.
Thirdly, the points system for determining transitional Members set out in Clause 11 is, to my mind, deeply flawed and objectionable. I very much hope that the committee of the noble Lord, Lord Burns—the noble Lord, Lord Beith, who is a member of it, is here—will not be in the least degree tempted down that road. Do we really want to encourage all Members to speak? Some, for my part, I would rather discourage—although, I hasten to say, none who are present in the House today. What constitutes speaking? Is it a supplementary question during Question Time, an intervention during a debate, supporting an amendment in Committee? On voting, what about a conscientious abstention, where the Member, having listened intently to the debate but being unpersuaded of the correctness of either side, abstains?
I happened to listen to the debate about HS2 earlier in the week, and for the life of me did not feel that I knew enough to be able to take a view on either side, so I abstained. That would count for nothing—but does it count when Division Bells ring and somebody emerges from a deep sleep in the Library to vote as whipped, asking what he is voting on as he comes into the House? Do we really want to go down that road?
If I may be allowed the briefest of digressions, I would rather support a Bill that provides for unwhipped Cross-Bench votes to count for double—although I might include in the Bill a provision that a vote by a party member against his Whip should count for three times. But put all that aside. When I first read the Bill, I confess that it put me in mind of one of our Victorian statesmen—alas, I forget which one—whose reaction to a suggested reform was, “Reform, reform—good God, man, aren’t things bad enough as they are already?”. For my part, I would suggest that things would be a great deal worse if we adopted this proposed Bill. For my part, I would not progress it, or even give it a Second Reading.
Surrogacy
Lord Brown of Eaton-under-Heywood Excerpts(9 years, 2 months ago)
Lords ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Lord Brown of Eaton-under-Heywood (CB)
My Lords, I, too, am most grateful to the noble Baroness, Lady Barker. Despite more than 50 years in law, I can claim no particular experience or expertise in this subject, although I have boned up on a number of recent cases. I have chosen to speak in this debate not to canvass any particular view as to how precisely to change and develop our existing inadequate surrogacy law, but rather to urge that this is, par excellence, a topic self-contained and policy-laden as it is, that cries out for attention by the Law Commission for inclusion in its imminent next programme of law reform. As the noble Viscount said, its consultation period on what projects to take ended on 31 October, but I have no doubt at all that it will take full account of what is said in this debate for which, alas, no earlier date was available. I have the very highest regard for the Law Commission—its chairman, commissioners, support staff and processes. In many debates in this House, we express regret about the lack of pre-legislative consultation on the various Bills before us, but such consultation is at the very heart of the Law Commission’s processes and, if ever it was desirable, surely it is so here, with regard to reshaping—as we now should—our obviously outdated surrogacy law.
In the 30-odd years since the Warnock committee report and the first surrogacy legislation in 1985, there has been a huge increase in the use of surrogacy to satisfy aspiring parents’ understandable and estimable craving for a full family life. This is due variously, no doubt, to advances in genetics; the expansion of social media, which so greatly facilitate surrogacy arrangements, here in the UK and abroad; and perhaps, also, to the widening recognition of differing types of secure family unit. All too plainly, the law has struggled to keep up with those developments. As others have already said, some of its basic architecture has been causing problems, most notably perhaps in the provision for parental orders to be made only after birth. This results in the surrogate mother and her spouse being at birth the legal parent, the biological parents being wholly dependent on the surrogate’s consent for an order, and the child in the meantime being in legal limbo. That particular aspect of the law was admirably brought to light in the piece mentioned by the noble Lord, Lord Faulks, in today’s Times by Alice Thomson, plainly based on the very case that the noble Lord, Lord Faulks, cited and has now described—as I was proposing to do but now need not do.
But this is far from the only problem that arises in this ever-expanding, sensitive and profoundly important area of our law. As has rightly been said, parental orders are transformational; they go to the very identity of the child as a human being. Another problem encountered was the inability of the court to make a parental order in favour of a single father, as opposed to a recognised couple, declared by Sir James Munby in the case of Z this May to be incompatible with the father’s and child’s rights under the European Convention on Human Rights—the one mentioned by the noble Viscount, Lord Craigavon. It may well be, and the Minister may inform us about this, that that particular problem will be solved by way of a ministerial order under Section 10(2) of the Human Rights Act. But even if it is, surrogacy law as a whole would to my mind be best reviewed and brought up to date in the light of a Law Commission report. As Alice Thomson said at the end of her article today, it is true that the Law Commission could take years, but I question whether the problem that she and the noble Lord, Lord Faulks, have fully described can be regarded as,
“a simple anomaly that could be changed right now”.
Law reform is now required but, in a controversial and difficult subject such as this, I would urge that it be done with the initial involvement and invaluable assistance of a Law Commission report.
Trade Union Bill
Lord Brown of Eaton-under-Heywood Excerpts(9 years, 11 months ago)
Lords ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Lord Brown of Eaton-under-Heywood (CB)
My Lords, in supporting this amendment I will repeat, very briefly, a point that I made in Committee. I might not have done this if the Minister had dealt with the matter in her reply. But, tantalisingly, just as she said:
“Perhaps this is the point at which I should respond to the noble and learned Lord, Lord Brown”,—[Official Report, 8/2/16; col. 2026.]
the noble Lord, Lord Mendelsohn, interrupted—perhaps I mean intervened—to raise a different question and the Minister never came back to it.
At all events, the point was simply this: while I support the turnout requirements in these clauses, it should be noted that certain bizarre consequences could, at least theoretically, follow from these provisions. Assuming a bargaining unit of 1,000 union members—the illustration used in the Explanatory Notes to the Bill—if 499 members voted in favour of industrial action and none against, a strike would be unlawful. However, if 499 voted in favour and one against, because at least 50% of those eligible would have voted, a strike would be permissible—so, too, of course if 499 voted in favour and 498 against.
Doubtless, such possible anomalies as these are inevitable in any scheme which combines, as this one does, a minimum turnout requirement with the principle of a simple majority decision. But my point is that surely this underlines the imperative need to ensure that the best and most effective way is found of achieving a maximum turnout of those eligible to vote. This amendment will surely facilitate the search for that better way, and plainly nothing can be lost by it. It prejudges nothing: if electronic balloting were to prove ineffective or insecure in addition to postal voting, it simply would not be adopted. But we should at least let such an independent review be held.
Lord Pannick (CB)
My Lords, I support this amendment for all the reasons given by the noble Lord, Lord Kerslake, and for one further reason, which I mentioned in Committee: promoting electronic voting will make it much less likely that any legal challenge to the new thresholds would succeed if such a challenge were brought in Strasbourg. It is very simple: the less balanced the provisions in the Bill, the greater the danger that the Government will not secure their objectives, and I support their objectives in relation to the ballot thresholds. The Minister mentioned a few moments ago that the Bill is concerned to strike a fair balance. So is this amendment.
Bank of England and Financial Services Bill [HL]
Lord Brown of Eaton-under-Heywood Excerpts(10 years, 2 months ago)
Lords ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Lord Brown of Eaton-under-Heywood (CB)
My Lords, speaking purely as a superannuated judge with no particular expertise in banking, I oppose the amendment. Article 6.2 of the European Convention on Human Rights says:
“Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law”.
Baroness Kramer
I will just make a point of clarification, because a number of noble Lords have made this comment. The reversal of the burden of proof applies not to a criminal offence but to a civil offence.
Lord Brown of Eaton-under-Heywood
With respect, as I understand it, this is a punishable offence; therefore it is a criminal offence. I certainly understand that it is proposed that this offence should be on the statute book to bring blame on those who commit it and lower them in the estimation of the public so that a conviction or finding of guilt under this provision would be to their considerable disadvantage. I have little doubt that Article 6 would apply to how one proves this breach of the law. There is nothing very new in this either. The golden thread that for centuries has been said to run through our law is that it is for those who accuse to establish a case against those who are accused.
Lord Sharkey (LD)
Is the noble and learned Lord aware that the Minister who introduced the Financial Services (Banking Reform) Act 2013 into Parliament certified that it was not in breach of the convention he quoted?
Lord Brown of Eaton-under-Heywood
That is by no means conclusive of the issue. However, for the most part I am not hinging my argument on the convention; it simply represents what I have already indicated is a common thread of our law—it is for those who accuse to prove. Generally, the burden of proving every ingredient, every element of any wrongdoing or offence—including the disproving of any legal defence to it—lies squarely on the prosecution.
Certainly, there are occasions when the law, including the European Convention on Human Rights, accepts a reverse burden of proof. However, in considering whether this is acceptable one must recognise that whenever an accused is required to prove a fact, as here he would be on the balance of probabilities, that permits him to be found guilty, even if the fact-finding tribunal has some reasonable doubt as to his responsibility. That is the whole essence of the burden of proof. Where there is a doubt, it is resolved in favour of he who stands to be criticised and held liable before the public. It is all very well to speak of the cultural impact of a change like this but the consequence is that in a case of doubt, because he has failed to discharge the reverse burden placed upon him, he is found guilty.
There is a great deal of law in all this, which I will not go through, but I will make just one or two points. First, there is all the difference in the world between the legal burden of proof and the evidential burden of proof. Realistically, the latter is of comparatively little importance. In relation to many defences, the evidential burden is said to be on the defence but this burden is found to be discharged whenever there is any evidence—basically, any evidence at all, wherever it comes from—which raises the possibility that such a defence may exist. For example, when somebody is accused of assault, if there is a suggestion that he may very well have acted in self-defence, the legal burden to disprove that immediately shifts back fully on to the prosecution. The fact is that courts—there are many cases to indicate this—do not like reverse burdens of proof and prefer this golden thread. It is by no means impossible, and I think it is quite likely, that under the 2013 Act—the one for which the certificate was given under the convention—that would be found to be consistent with the convention because the court would construe the legislation as involving not the legal burden of proof but the evidential burden of proof, in which case it would have precious little effect.
The legal burden of disproving guilt is only very rarely put on the defendant. It generally happens only in the case of statutory offences concerned with the regulation of conduct in the wider public interest, and generally in comparatively minor cases involving—I quote from an earlier judgment—
“no real social disgrace or infamy”.
That approach was applied in a trademark case where a trader in branded goods was required to prove that his sale of the goods did not involve any infringement of the trademark legislation. It was held to be in the nature of a regulatory offence with a minor degree of moral obloquy rather than a truly criminal case. Indeed, that was also the position in a case in this House in 2008 in which I was one of the judges. We held that it was not disproportionate to put the legal burden on employers to conduct their undertaking in such a way as to ensure that people were not exposed to health and safety risks. It was for them to establish on the balance of probabilities that it would not have been reasonably practicable for them to have done more than they had to achieve those requirements.
The effect of this amendment is conveniently and succinctly set out in paragraph 137 of the Explanatory Notes. It says that under the 2013 Act senior managers in the relevant area,
“are guilty of misconduct if there has been a breach of any regulatory requirement in an area for which they are responsible unless they can prove that they have taken reasonable steps to avoid the breach … This will be amended so that no senior manager will be guilty of misconduct unless the regulators can prove that the senior manager did not take reasonable steps to avoid the breach happening”.
I respectfully support the Government’s view that the offence being introduced by this legislation, prospectively from the coming March, should properly be considered to be not just a mere regulatory offence involving negligible obloquy—that is not how I understand that the bulk of those opposite would regard guilt of such an offence—but, rather, as constituting serious misconduct. It is the sort of offence, therefore, which should be fully proved and where any doubt as to whether it was committed should be resolved in favour of he who is accused.
Lord Grabiner (Non-Afl)
My Lords, I declare the interests shown under my name in the register. I should also declare that I am an authorised person under the regimes operated by the FCA and the PRA.
This part of the Bill is designed to extend the senior managers and certification regime, which replaces the much reduced—or, I should say, criticised—approved persons regime. It introduces a new statutory duty of responsibility for all senior members across the extended SMCR in place of the reverse burden of proof, which would otherwise have applied to deposit-takers and PRA-regulated investment firms. The new duty obliges the responsible senior manager to take reasonable steps to prevent regulatory breaches in her or his area of the business. As a result, if the complaining regulator shows that the senior manager has failed to take appropriate steps, she or he will be guilty of a breach of statutory duty. No doubt the Minister will assist us on this but I think that that will subject the individual to serious penalties, including an unlimited fine and/or a prohibition. These are very serious matters, whether they are offensive to Article 6 or otherwise.
Constitution: Gracious Speech
Lord Brown of Eaton-under-Heywood Excerpts(10 years, 7 months ago)
Lords ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Lord Brown of Eaton-under-Heywood (CB)
My Lords, I want to touch briefly on the proposed British Bill of Rights. Of course, I recognise that a delay for consultation is now proposed, but there could be no clearer commitment than for such a Bill. Indeed, just two days ago in the other place, Dominic Raab, the new Justice Minister, full of enthusiasm, stated:
“We will legislate for a Bill of Rights to protect our fundamental rights, prevent abuse of the system and restore some common sense to our human rights laws”.—[Official Report, Commons, 23/6/15; col. 748.]
He continued by saying that, although leaving the convention was not the Government’s objective, no option was off the table.
There is time today to make only one or two brief points. First, in the debate on the gracious Speech on 1 June, the noble and learned Lord, Lord Mackay of Clashfern—whom I am happy to see in his place—with regard to our failure to implement Strasbourg’s judgment on prisoner voting, confessed to,
“a feeling of great anxiety that the United Kingdom, with its tradition for respect of the rule of law, not the rule of lawyers, should be in breach of a treaty by which it is bound”.—[Official Report, 1/6/15; col. 179.]
That of course was entirely consistent with evidence that the noble and learned Lord had given the Joint Committee on the Draft Voting Eligibility (Prisoners) Bill, as recorded at paragraph 92 of its report, HL Paper 103. Later in his speech, the noble and learned Lord, Lord Mackay, suggested a possible way of dealing with this sort of situation short of withdrawing from the convention. He suggested—as reported at cols. 179-80 of the Official Report for 1 June—that the convention should recognise the possibility that member states such as the UK whose Parliament is sovereign and not subject to having its Acts set aside or modified by the courts of that country should be exempt from the obligation to implement a decision of the Strasbourg court that one of its statutes contravenes the convention, provided only that the state’s legislature passes a resolution which, for stated reasons, declines to implement the Strasbourg court’s decision.
Clearly, the noble and learned Lord was attempting to avoid the unthinkable possibility of withdrawing from the convention and to put forward a constructive suggestion. However, with the best will in the world, it seems to me inevitably doomed. In the first place, it is surely inconceivable that all the states party to the convention would agree to such an amendment of the convention. In any event, would we really be happy to achieve a position where, for example, if the Russian Duma, or indeed the Irish Parliament, wanted to recriminalise homosexuality, it would be perfectly able to do so? In truth, we must recognise that our preparedness to accept the very occasional unwelcome ruling against us is the price we pay for the huge benefits to the wider population of the Council of Europe of subjecting less liberal states to the constraints and disciplines of the convention.
I should make it plain that I, too, regret a number, although in fact only a very small number, of Strasbourg’s decisions. Frankly, they do not include that on prisoner voting—a decision that we could satisfy simply by giving the vote only to those serving 12 months or less. Surely we are, after all, trying not to outlaw prisoners but to instil in them some sense of civic responsibility. However, I regret one or two Strasbourg decisions—for example, the cases of Al-Skeini and Al-Jedda, which are in direct disagreement with our own final court’s decisions, to which I was party respectively in this House and in the Supreme Court, and which tend to undermine our forces’ fighting capabilities in armed conflicts abroad. I am troubled, too, by the extent to which Strasbourg has extended the scope of the Article 8 right to respect for private and family life.
As to the application of the convention to warlike operations, there are possible solutions. Indeed, I canvassed them in a conference last month at Oxford, but there is not time to develop them today, although I hope that we may one day come back to them. With regard to Article 8 and, in particular, its impact on the deportation of foreign criminals, let us see how the changes to the legislation introduced by last year’s Immigration Act work out. According to the Times, there is shortly to be a Court of Appeal case which questions those changes.
There has been extensive debate during recent years about Section 2 of the Human Rights Act requiring our courts to “take into account” Strasbourg’s jurisprudence on the convention. High authority in our courts dictates that we should not only take account of that case law but, where it is settled, directly on point and authoritative —for example, a clear decision of the Grand Chamber—follow it. The object of the 1998 Act was, after all, to “bring rights home”. If our courts were to refuse to apply a clear Strasbourg decision, the inevitable consequence would be, as the noble Baroness, Lady Kennedy of The Shaws, mentioned, to drive the disappointed litigant back to Strasbourg to establish the claim there.
Of course, success in Strasbourg would bind the Government only in international law, as with prisoner voting, where primary legislation stands in the way of domestic enforceability. But I can see some arguments for preferring that to the present position, which, just very occasionally, requires our Supreme Court to follow a Strasbourg case against its own better judgment—those arguments were indeed canvassed by the noble and learned Lord, Lord Irvine of Lairg, back in December 2011. But it is one thing to elaborate Section 2 of the Act to spell out that our courts are not obliged to follow Strasbourg or, indeed, to repeal the 1998 Act—essentially reverting to the position before 2000, when we merely took account of the UK’s international law obligations—but quite another to legislate contrary to certain specific convention requirements as determined by the Strasbourg court, and that is what I understand the Government presently have in mind. We shall need to watch their proposals very carefully indeed.