Extension of Franchise (House of Lords) Bill [HL]

Lord Brown of Eaton-under-Heywood Excerpts

2nd reading (Hansard): House of Lords
Friday 19th July 2019 Lords Chamber

[Lord Brown of Eaton-under-Heywood (CB)]

My Lords, I support this Bill just as I supported the same Bill when the noble Lord, Lord Dubs, was promoting it six years ago, in June 2013. I have reread the Second Reading debate of his Bill then and noted rather to my surprise that I managed to speak for eight minutes; I am not sure I shall manage that today.

I recognise, of course, that this is perhaps not the most burning political issue of the day. But it has for some time been, and remains, an issue worth raising and one which should finally be resolved—in its favour, I suggest—and put to bed. I invite your Lordships to look at it this way: suppose that our present bicameral system was being devised and established for the first time today, long after the passage of the Parliament Acts of 1911 and 1949, with an elected House of Commons being rightly accorded the primacy it is recognised to have; it alone having the power to impose taxes and deal realistically with money Bills; it alone having the right by convention to implement its policies, particularly its manifesto promises; it alone having the power to bring down government; and so on. Suppose all that, and that those setting up the system of government then asked themselves—after looking around the world at other bicameral nations where the second Chamber invariably has the vote—should the Members of the upper House have a vote in deciding who should be the Members of the House of Commons? I suggest that one cannot seriously doubt that the answers would be: of course they should; why on earth not?

It is quite wrong to suppose that the mere fact that we have a limited say in scrutinising and refining Bills from the House of Commons, and occasionally promote Bills ourselves, should disqualify us from voting in parliamentary elections. One point I made in the debate brought by the noble Lord, Lord Dubs, is that the 11 of us who in October 2009 ceased to be Law Lords here and were recreated as Justices of the new Supreme Court became at that point totally disfranchised. For so long as we remained Supreme Court Justices, we ceased to have any vote or voice whatever in national political life. We were disqualified from speaking or voting here in the Lords, yet as Members of the House of Lords we had no vote either in parliamentary elections. Still now, 10 years on, there remain in the Supreme Court two such Justices, the noble and learned Baroness, Lady Hale, the President of the Supreme Court; and the noble and learned Lord, Lord Kerr of Tonaghmore. There are, I think, two Scottish law officers similarly placed.

This does not apply to Peers who retire, nor indeed any Peer who may be expelled from the House under the provisions of the House of Lords (Expulsion and Suspension) Act 2015, although no doubt it applies to other Peers statutorily disqualified from active membership. Should we simply write off those cases as mere oversights or regrettable anomalies in an otherwise sensible, logical voting system? I suggest not. It seems to me rather that, as a matter of principle, we should finally end the wider anomaly, which consists in the disqualification of all Members of this House from voting in Commons elections. The right to a parliamentary vote should be regarded as a basic fundamental right that should be denied to citizens only for compelling reasons. It is no longer denied to mental patients. It is, as we all know, still denied to all convicted prisoners. Personally, I regret that, but I suggest that today is not the occasion to debate again its pros and cons. No more is it, pace the noble Lord, Lord Rennard, the occasion to debate the Liberal Democrats’ cause of a wholly elected House of Lords or indeed the question of votes for 16 year-olds.

I accept that there is a stronger case against prisoners voting than there is against Members of this House having the vote, but I suggest that there really is no coherent case for denying us the vote simply because we have a limited—though, I recognise, valuable—role in the overall legislative process. It is not a sufficient role to justify our being denied any say in those who have primacy in legislation, the Members of the House of Commons.

The vote is a symbol of a healthy democracy whose value should be recognised. The Bill would assist in that recognition, and I wish it well.

Census (Return Particulars and Removal of Penalties) Bill [HL]

Lord Brown of Eaton-under-Heywood Excerpts

Report stage (Hansard): House of Lords
Tuesday 18th June 2019 Lords Chamber

[Baroness Barker (LD)]

My Lords, I beg to differ with the noble and learned Lord, Lord Judge: I think these are riveting matters. This debate has shown exactly why that is so, because they are not easy. I am very glad that he has in effect gone back to what some of us said right at the beginning of Second Reading: that the importance is not what is in the Bill but what is on the form that results from this piece of legislation. That is what we have been driving at, not only in the debates in your Lordships’ House, but also in the discussions we have had with civil servants from different parts of government and from people within the community, over a number of very interesting and informative sessions.

I say to the noble and learned Lord, Lord Mackay, regarding his problems with the DVLA, welcome to the world of some of the minority groups in this country, who are faced with forms that they wish to answer truthfully but find doing so extremely difficult. It is always a joy to listen to the noble Baroness, Lady O’Neill. I wish she could have been present for some of the discussions that we had with the community groups, the ONS and the civil servants, who are in the middle of extensive testing, not just of the understanding of people who are in these groups and who are familiar with these terms, but with people who are not.

This is something which by its nature evolves over time, and the language within it changes over time; I guess that every 10 years there is something new. We should not be critical of that, but simply do our job in Parliament, which is to oversee those changes and make them as good as we possibly can. I have said this before and think it is worth saying again: the taking of a census is an important moment in our civic life. I know there are those who wish to dispense with it, who make an argument that we can get much of the information in other ways. I understand that to an extent, but nevertheless this is one time when the Government engage with all citizens and ask them questions about themselves. I understand that it is flawed—I suspect that it always will be—but the noble and learned Lord, Lord Judge, has got us to the point we said we wanted to be at, where we will get the most data in the easiest and most efficient way from the greatest number of people. If we send the Bill to the Commons in this state, we will have done a good job.

[Lord Brown of Eaton-under-Heywood (CB)]

My Lords, I came here this afternoon intending to support my noble and learned friend Lord Judge. However, something said by the noble and learned Lord, Lord Mackay of Clashfern—who also had the sagacity to promote me—has given me a slight worry. I was going to support my noble and learned friend Lord Judge on the basis that clarity is all important, but I now wonder whether his amendments are sufficiently clear.

It is made plain you do not have to answer the question, but what if you answer it untruthfully? I confess that I have not sufficiently explored the overall legislative context in which this happens, but the noble and learned Lord, Lord Mackay, says that it is made plain elsewhere that not only do you not have to answer a question but also, if it is one of those questions that you do not have to answer, whatever answer you give, however misleading or absurd, will not expose you to prosecution. However, the formulation in Amendment 1, and equally in Amendment 2, begs rather than answers the question: if you choose to answer, must it be a truthful answer? That itself could give rise to a difficulty which may not exist absent these amendments.

[Lord Young of Cookham (Con)]

My Lords, I thank the noble and learned Lord, Lord Judge, for tabling his amendments, and thank all those who have taken part in this debate. I agree with the noble Baroness, Lady Barker, that the census is an important civic event; we should all discharge our responsibilities and complete it. I will try and deal with the various issues that have been raised during the debate.

We had a useful and informed debate on this in Committee, when the noble and learned Lord did not press his amendments which sought to clarify whether removing the penalty also removed the offence. He did that after an offer to have further discussions before Report to see if there was a way through. I am very grateful to him, and to my noble and learned friend Lord Mackay of Clashfern, who I saw having a discussion outside the Bishops’ Bar last week; I realised that if I joined it I would not understand a word that was exchanged, but I noticed that a cloud of white smoke emerged. They subsequently agreed to come to a meeting with Ministers and officials last week, where I hope we found a way through which satisfied all concerned. I hope that this afternoon we can validate this great meeting of minds.

In Committee, the noble and learned Lord, Lord Judge, raised an important issue on ensuring that there is no ambiguity as to the voluntary nature of certain census questions in the minds of those who will answer them. By removing the penalty attached to a failure to answer, the clear parliamentary intention is to remove the criminal offence. I agree with him that from the point of view of the respondent—the most important person—this must be clear. So far as the guidance on the front of the form is concerned, we have no issue with his proposal. I can confirm that the Office for National Statistics is committed to the inclusion of wording on the front page of the census for England and Wales, as proposed in the amendment. This will make it clear that the census is compulsory, that some questions are voluntary and that not answering these voluntary questions is not an offence. I hope this commitment will meet the shared objective of the noble and learned Lord and others, and of the Government, on ensuring clarity for the public.

I also confirm that the voluntary questions in the form will be clearly marked as “voluntary”, as the amendments would require. This has been the case for the voluntary question on religion since its introduction in the 2001 census for England and Wales, and it has been effective. In each of the last two censuses, 4 million people in England and Wales—over 7% of the population—have chosen not to answer the religion question. This suggests that the public clearly understand this question to be voluntary.

To best fulfil the intent of the noble and learned Lord’s amendments, the wording on the form should be tested with the public to ensure that the messaging is as clear as possible, ahead of finalising the census questions. Stating the precise wording in the Bill would mean that it could not be amended in the light of that testing. The ONS is committed to carrying out this testing, following which the census forms for England and Wales will be put before Parliament and the Welsh Assembly, respectively, in census regulations. While the regulations are not amendable the ONS will engage with interested parties, including noble Lords, as it finalises the form and guidance.

The census is a devolved matter. Decisions on the questions, questionnaire and guidance to be issued in the 2021 censuses in Scotland and Northern Ireland are for the relevant authorities in those Administrations, through a similar secondary legislation process. I hope your Lordships agree that it would be inappropriate to make a decision for Northern Ireland, although we will of course make that Administration aware of the changes we propose for England and Wales through the ONS.

The secondary legislation for the 2021 census in England and Wales will begin to be brought forward later this year. As my noble and learned friend Lord Mackay said, an Order in Council will set out the detail of the questions to be asked in the England and Wales census. That order is in part subject to the unusual amendable affirmative procedure before both Houses. It will be laid in the autumn and the regulations, to which I have already referred, will follow in 2020.

I will try to deal with some of the questions raised during the debate. The noble and learned Lord, Lord Brown, asked about the questions being voluntary and whether the penalty for a false response should be removed. The answer is no: Parliament rejected an amendment to this effect in 2000 and it was right to do so. Not wishing to provide a response and wilfully providing a false response are different issues. Removing the penalty for providing a false response would pose a risk to the quality of census data in a way that allowing people not to provide an answer does not.

The noble Baroness, Lady Hayter, asked about military service—as she said, I wrote to her on it. The Armed Forces question is there to help public services serve those who have served their country and is underpinned by the Armed Forces covenant. No one in the household will know whether an individual fills in their own return; it will overwrite the household return. She was concerned about a lodger who might not wish to disclose their previous service to their landlord or landlady. The landlord would fill in the form for the household, but the lodger could apply for their own census form and fill it in without the knowledge of the householder. That would override the household return. No alternative data source fully meets the data that we need.

I think that I have answered all the questions that were asked. I recognise the concerns expressed by the noble Baroness, Lady O’Neill, and remind all noble Lords that we are happy to do a drop-in session to explore these points in more detail. Finally, I repeat my gratitude to the noble and learned Lord for his help in this matter and express the hope that, as a result of the commitments that I have given, he will not press his amendments.

House of Lords (Hereditary Peers) (Abolition of By-Elections) Bill [HL]

Lord Brown of Eaton-under-Heywood Excerpts

Report stage (Hansard): House of Lords
Friday 15th March 2019 Lords Chamber

[Baroness Hooper (Con)]

My Lords, I declare my interest as a life Peer who has sat in your Lordships’ House for 35 years and served the House from the Front Bench, the Back Bench and the Woolsack, and behind the scenes in committees and all-party groups. I also was here for the passage of the reform Bill, which sadly was handled very badly. Although the core purpose of that Bill was to lead to a more “democratic” House of Lords, it did not do so. I cannot say that the fully appointed House of Lords is worse than the mixed House in which I sat for 15 years, which had a mixture of almost equal numbers of life Peers and hereditary Peers. But it is not a democratic House.

I support my noble friend Lord Strathclyde’s amendments. I do not need to go into detail, because he and the noble Earl, Lord Erroll, have explained the situation very clearly. Indeed, it was very helpful to have the intervention from the Minister. It is important to remember that the purpose of the so-called reform Bill was not just to get rid of hereditary Peers, as was said at the time, but to lead to elections of a second Chamber. I have voted in favour of an elected second Chamber in your Lordships’ voting lobbies.

[Lord Brown of Eaton-under-Heywood (CB)]

My Lords, I strongly support this Bill. It is for that reason that I oppose this amendment, not because I do not see powerful arguments for a statutory HOLAC but because they clearly will not prevail in the context of this Bill; as has already been amply pointed out, they can only destroy the limited but important effect of the Bill as proposed.

I have said in the past that I am a huge admirer of the contributions made by hereditaries, but I fundamentally object to the notion that they should be followed by other hereditaries through an assisted-places scheme. That is what it is, and we have called it so in the past. It is of course right to say that the present scheme is also gender and racially biased, but those considerations fall into insignificance compared to that fundamental objection: that it provides for a well-born group of people to be necessarily the only candidates to fill 90 slots. That is just not appropriate. For the reputation of the House, I urge that this Bill be not hampered by the accretion of a statutory HOLAC, but be accelerated through. The fact that this House is trying to modernise and promote its reputation should be foremost in all our minds.

The thought that, as the Burns report progresses and we diminish in numbers, an ever-larger proportion will be hereditaries is absurd. Besides the Prime Minister’s commitment to her reticence and the fact that we are now diminishing in number, the one response of relevance to the Burns report is that in future there is to be,

“no automatic entitlement to a peerage for any holder of high office in public life”.

If Cabinet Secretaries, CGSs, Chief Metropolitan Police Commissioners, Lord Chief Justices and the like will not be able to count on appointment in future, why on earth should future hereditaries?

[Lord Jones of Birmingham (CB)]

My Lords, I do not think I need to remind noble Lords that, at this moment, all over the nation, the political class is seen to have failed the country. If ever there was a time when noble Lords could make a stand for connecting more with the people, it is now. I assure noble Lords that, in pubs from Cradley Heath to West Bromwich, to Kings Heath in my home town, they talk of nothing but reform of the hereditary peerage system.

I fully support the noble Lord, Lord Grocott, in what he is trying to achieve. The time has come when, if we truly believe in making the political class that which I know this talented nation can provide for its people, this House must set an example. These amendments—every one of them—should be withdrawn, and after five days of debate over 240 words, we should push this through and stop the farce. We can then get on with not only running the country but reconnecting the political class with the people who have trusted us to look after them.

--- Later in debate ---

[The Earl of Caithness]

My Lords, the noble Lord, Lord Grocott, prompted me to rise when I was not going to speak on this amendment. He quoted again the odds of becoming a Member of the House of Lords and said that the balance is tilted in favour of the hereditary Peers. Does he agree that once hereditary Peers are removed, the quickest and easiest way to get into this House is to become an MP? A third of the House are ex-MPs and that proportion will go up. Does he agree that that is an equally unjust way to fill the House of Lords, and that the right way is to hold elections?

[Lord Brown of Eaton-under-Heywood]

My Lords, I suggest that a feature of this group of amendments—indeed, of all the others too with the single exception of Amendment 2A, moved by the noble Lord, Lord Strathclyde—is the destruction of the Bill’s essential purpose: to abolish hereditary Peers for the future but keep our present invaluable 90, or 92. The original proposal of the noble Lord, Lord Strathclyde, was at least consistent with the Bill in the sense that he was prepared, as he said, to accept the abolition of future elections provided that we introduce a statutory HOLAC but that is not true of the rest of these amendments.

[Lord Snape]

My Lords, I did not intend to speak on this group of amendments but I was provoked to do so by the intervention from the noble Lord, Lord Strathclyde. He was around in 1999; indeed, I am pretty sure that he played a major role in what took place then. It is all very well for the likes of the noble Viscount, Lord Trenchard, to pray in aid the agreement that came about then and use it as an excuse to say that it was a solemn and binding—he did not use that particular phrase—way to reform the House, that it was at only an initial stage and that he intended to continue that reform later, but the noble Lord, Lord Strathclyde, knows full well how the 1999 agreement came about. It was accepted by the Labour Government because the Conservative majority in the House of Lords at the time was enormous. Despite the equally enormous Labour majority down the corridor as a result of the 1997 election, that Conservative majority, in which the noble Lord, Lord Strathclyde, played a major role, made it quite plain that it was either this particular deal or no reform of the House of Lords at all. So let us not have any nonsense that this was merely stage one and talk of solemn and binding promises.

Indeed, that agreement came about without the knowledge and permission of the leader of the Conservative Party in the House of Commons. The leader of the Labour Peers in the House of Lords lost his job as a result of the agreement. He was a descendant of Lord Salisbury. I would have thought that it takes a lot to shift a Salisbury from your Lordships’ House, but that is exactly what happened. The noble Lord, Lord Strathclyde, knows not only where the bodies are buried but I suspect wielded a shovel himself.

House of Lords (Hereditary Peers) (Abolition of By-Elections) Bill [HL]

Lord Brown of Eaton-under-Heywood Excerpts

Committee: 2nd sitting (Hansard): House of Lords
Friday 7th September 2018 Lords Chamber

[Lord Blunkett (Lab)]

My Lords, to address the issue that has been put before us and to avoid prevarication, there is a new phase 2: it is Burns. There may be a phase 3—who knows? If a Jeremy Corbyn-led Government were elected, there would a phase 3 which might disturb the Benches opposite slightly more than not having by-elections for hereditary Peers. Burns is a phase 2, and it has consequences. Unless the issue of hereditary Peers and by-elections is addressed in the way that my noble friend Lord Grocott proposes, it is not my party or the broader opposition who will find themselves in difficulty, it will be the Conservative Benches. I would like them to reflect on what would happen if we implemented Burns and this House were decanted in six years’ time, with the two things coming together, and the Conservatives were faced with hanging on to their hereditary Peers while losing their life Peers.

[Lord Brown of Eaton-under-Heywood (CB)]

My Lords, I am a great admirer of our hereditaries. Man for man, pace my noble friend Lady Mar, they are at least a match for those like me who have been appointed here. They are a match in their commitment, their contributions to the House, their expertise and, as the noble Lord, Lord Mancroft, pointed out at Second Reading, their independence of mind and spirit.

Like many others here, I would welcome wider improvements in our appointments system, with a larger role not least for the noble Lord, Lord Kakkar, and his excellent Lords Appointments Commission. In the meantime, I strongly support this Bill, which would go some considerable distance to enhancing the reputation and image of this House.

Therefore, far from supporting the amendment in the name of the noble Lord, Lord Trefgarne, I see positive merit in this reform being achieved by way of a Private Member’s Bill rather than by government. It demonstrates our own desire and commitment to achieving reforms for ourselves. Consistently with that goes the report of my noble friend Lord Burns, which again is our own attempt to modernise and reform this House. I cannot resist harking back to the words of the noble Lord, Lord Grocott, in closing the Second Reading debate. He asked why hereditaries should,

“have an assisted places scheme to get into the House of Lords?”—[Official Report, 8/9/17; col. 2186.]

There has been much criticism throughout these debates of hereditaries being, virtually without exception, male and white. As the noble Baroness, Lady Berridge, put it at Second Reading, the existing system is, “gender and racially biased”. Surely altogether more fundamentally objectionable even than those criticisms is the fact that this system favours a very tiny, and—I suppose I had better put this in quotes—“well born” number within a wider population of millions. A number of those millions may have even more to contribute to our House than the hereditaries—the few future hereditaries who, if the Bill passes, will not join us. In short, why should they have assisted places? Should we not modernise and reform?

[Lord Wakeham (Con)]

My Lords, I shall say just a few words at this stage. First, I must declare an interest: I was chairman of a royal commission some years ago that produced a number of proposals for reform of the House of Lords, and I have to say to the noble Lord, Lord Grocott, that it did not include by-elections for Peers. I am sympathetic to what he wants to do; my concern is about the timing. Since that report, we have had a Bill from the Labour Government, from Jack Straw, which failed to get through. We had a Bill from the coalition parties which failed to get through. Some of us felt that there was very little likelihood of any Government bringing forward another Bill to reform the House of Lords.

Referendums: Parliamentary Democracy

Lord Brown of Eaton-under-Heywood Excerpts

Thursday 19th July 2018 Lords Chamber

[Lord Brown of Eaton-under-Heywood (CB)]

My Lords, we are indeed fortunate to have listened in a single debate to two such distinguished maiden speeches, each delivered with great style, wit and charm. I am particularly pleased to follow my noble friend Lord Anderson and thus be the first to congratulate him. I confess to no surprise at the excellence of his speech: periodically during my years as a judge he used to come before us and make dazzling appearances; not invariably with success, but that was probably our fault and not his. He is described in the main reference book appraising members of the Bar as the—the, not a—leading EU public law expert, with,

“an incredible level of analysis and mastery of presentation … charismatic and charming”,

and,

“a spectacular advocate”.

His huge contribution to public life, as the Government’s Independent Reviewer of Terrorism Legislation for some years, until February last year, needs no emphasis from me. It is well summarised, surely, in the citation for his knighthood, awarded just a month ago in Her Majesty’s Birthday Honours List:

“For services for national security and civil liberties”.


To advance both those twin imperatives, wrongly thought by some to be in conflict, is surely a singular achievement. This House is going to benefit immensely, I suggest, from the expertise and wise judgments of my noble friend Lord Anderson, and we greatly look forward to his future contributions to our debates.

Turning to the issue of the debate, referendums, I first join with others in congratulating the noble Lord, Lord Higgins, on securing and so skilfully opening this debate. I should begin by confessing to having written a “Thunderer” article in the Times on this question in April, headed, “Britain needs one last referendum before we ban them”. A few days later I was confronted in a corridor by the noble Lord, Lord Lawson, to whom the noble Lord, Lord Pickles, has already referred. He asked me if it really was me who had written this piece, and when I acknowledged that it was he said he hoped I realised how stupid it was. Did I recognise, for example, that 20 years ago the referendum held on both sides of the border in Ireland had been integral to the success of the Good Friday agreement? I was, I confess, rather shaken by that encounter and I have become rather less clear in my view that once, by a further referendum, we have, as I suggest we should, obtained the public’s view on whether, after all, we should Brexit, we should, as I said in the article,

“legislate to ensure that never again will our parliamentary representatives feel bound by a referendum to sacrifice their own mature judgment on the altar of public opinion”.

My more up-to-date views are these. First, referendums are, I suggest, by their very nature a risky and dangerous way of determining important political issues. I will not quote again the famous quotation from Margaret Thatcher, but they are a populist device, all too often ill-informed and dangerously repressive, and they ride roughshod over minority interests. Of course, all that was notoriously true in Nazi Germany, as has been observed. Nevertheless, with appropriate safeguards there may be occasions when, perhaps as a prelude to major constitutional change, a referendum is indeed appropriate. The Good Friday agreement is, I am inclined to accept, a good example of that. So too, I think, was the vote on Scottish independence and possibly—although here I put a particular emphasis on safeguards—the vote on membership of the EU.

By safeguards I am really talking about the various ways of protecting representative democracy from the obvious deficiencies that we can now see to have afflicted the 2016 EU referendum. That gave the public a deceptively binary choice, to be made by a bare majority and in circumstances where, although in strict legal theory the result was advisory only, politically it was really compelling, as has been acknowledged, at least to the extent of requiring an Article 50 notification to begin the Brexit process, although not, I would argue, to the extent of pre-empting any further, final referendum once the available terms become clear.

Possible future safeguards, obviously interrelated, for any future referendum would, I suggest, include the following. First, we should require more than a bare majority of those voting before giving effect to a vote for change. Secondly, we should spell out as precisely and truthfully as possible the actual likely consequences of a choice either way. As my noble friend Lord Wilson put it, any referendum should follow, not precede, a full public debate on the questions at issue. Thirdly, we should make it plain that the result of the referendum will be treated as advisory only. The weight of such advice, the respect in which it is held, would depend always on the clarity of the choice offered to the electorate, the extent of the majority, in both absolute and proportionate terms, and indeed the relevance of subsequent events.

Taking the present situation, surely there are here highly relevant subsequent events. They include, do they not, the increasing likelihood that leaving the EU will prove altogether more difficult, and possibly damaging, than many of those who voted for Brexit can possibly have supposed; the discovery of substantial breaches in electoral law by those campaigning for leaving; and of course the mere passage of the two years, which of itself has enfranchised many of the younger generation, who plainly wish to remain.

Three suggestions have been made. The suggestion of the noble Lord, Lord Sherbourne, is that we simply slavishly follow the referendum, however imprecise may have been the decision then taken: it was to leave and we should do no more than follow that. Secondly, the noble Lord, Lord Higgins, suggested that parliamentarians could properly now ignore the referendum utterly. I suggest that there is a real risk of forfeiting public trust in the political process if that course was taken. Thirdly, it is suggested that we should ask the public and respect their view on the deal now available by a further referendum, and that is the course that I support.

Brexit: European Arrest Warrant (European Union Committee)

Lord Brown of Eaton-under-Heywood Excerpts

Thursday 8th February 2018 Lords Chamber

[Lord Brown of Eaton-under-Heywood (CB)]

My Lords, I have prepared a speech and shall deliver it, although what of any great value it will add to the series of outstanding speeches that we have already had—and it would be invidious to choose between them—may be doubted.

In the increasingly borderless world in which we live, it is really difficult, as others have said, to overstate the critical importance of the European arrest warrant to international criminal justice. The scheme, as your Lordships know, originated in a European Council framework decision in 2002 and was transposed into UK legislation in the Extradition Act 2003, coming into force on 1 January 2004. It immediately transformed extradition arrangements between EU states, making for an altogether swifter and more streamlined process. It was immeasurably an improvement on what had gone before; essentially, the 1957 Council of Europe Convention on Extradition was criticised variously as being,

“inefficient, cumbersome, slow (which resulted in long periods of pre-trial detention for suspects), expensive, technical, political, restrictive, containing a series of loopholes and subject to less judicial oversight”.

That is the description in the EU Committee report of 2013, paper 159, to which my noble friend Lord Hannay has already referred.

As your Lordships will know, under the Lisbon treaty the Government initially opted out of some 130 measures in the field of justice and home affairs and then, in December 2014, three years ago, opted back into 35 including, notably for our purposes, the European arrest warrant. This for the first time conferred jurisdiction on the CJEU or the ECJ in regard to our operation of the scheme. This opt-in occurred during a 15-month period in which the ad hoc Select Committee on Extradition Law of this House sat. I was privileged to be a member of that committee, under the excellent chairmanship of the noble Lord, Lord Inglewood. On 10 November 2014, we published a short interim report recommending that we should indeed opt back into the scheme. In our final report on 10 March 2015, we reiterated, with emphasis, that conclusion. Of course, we had by then indeed opted back in.

In preparing the interim report, we heard oral evidence from two witnesses: the noble Baroness, Lady Ludford, who supported the opt-in, and Mr Jacob Rees-Mogg, who advocated leaving the scheme on the basis that it was an unacceptable extension of European judicial influence. That was not a view that we accepted, nor, evidently, was it a view shared by the Government, who of course then opted in.

I should perhaps note that, during the pre-Lisbon operation of the scheme, and therefore before the European court had jurisdiction over its operation here, a number of EAW cases came before our courts, both in this House and then, after we were banished in 2009, in the Supreme Court. Indeed, I was involved in a number of them, including, shortly before I retired in 2012, a Mr Assange’s appeal—although, in the event, it appears to have taken him no further than Knightsbridge. Against that background, I assert some experience at least of the scheme in practice.

I believe that, both before and after we opted in, overall the European arrest warrant has operated admirably. Of course, as the noble Baroness, Lady Ludford, said, there have been flaws and obviously there remains room for further improvement. There have, however, been certain notable legislative amendments made to the 2003 Act that have undoubtedly helped; for example, the introduction of a forum bar, the effectiveness of which can be seen this very week in the Administrative Court’s judgment in the Lauri Love case, the computer hacker with Asperger’s who is not now to be extradited to the Unites States but who will, one trusts, instead be tried here for his alleged criminal activities. That was under Part 2, not Part 1, of the 2003 Act and is not therefore an EAW case, but the point is none the less well made.

Perhaps I should note in this connection that I in fact wrote the single judgment of the Appellate Committee of this House in the earlier case of McKinnon, where we unanimously dismissed Mr McKinnon’s appeal—a judgment that was then fully upheld in Strasbourg under the European convention. Of course, at that stage there was no question arising at all as to Mr McKinnon’s health. It was argued on an unarguable case by the noble Lord, Lord Pannick; he failed. Only later was Asperger’s diagnosed and there was of course then executive discretion—which is no longer there—for the Home Secretary to bar extradition. Now, the position has improved under the legislation: there is a forum bar, and the court rather than the Executive will make the final determination on the merits of issues such as oppression.

Thus far, I have focused on the critical importance of the warrant scheme—as all your Lordships have, I think, emphasised—and the imperative need, as I see it, to maintain its operation in the post-Brexit era. Indeed, as I read the Government’s response to the report, there is really no longer any doubt or dispute about its importance and the necessity of maintaining it. Rather, the remaining question is simply about how in future its operation should be judicially overseen. I say this simply remains the question, but actually, as other noble Lords have indicated, it is really rather difficult.

The Government’s response, I think of December last, to this report, consistent with their published paper in September last, the future partnership paper Security, Law Enforcement and Criminal Justice, while asserting that they will,

“bring about an end to the direct jurisdiction of the CJEU in the UK”,

recognises that some form of supranational resolution mechanism will be required, certainly after the transitional implementation standstill period, during which, as I understand it, the Government are now ready to accept that they will continue to acknowledge the CJEU’s continuing jurisdiction in this field. But what will then follow?

As I read the report, while indeed it acknowledges the need for some future international judicial process to be devised in place of the CJEU’s direct jurisdiction, it gives, as others have pointed out, no real clues as to what precisely, or indeed even imprecisely, it currently envisages will fit the bill. For all the reasons set out in this admirable report, it needs to be a court, a judicial body, as opposed to some arbitral body. It needs to be available to individuals and not merely to states. It needs to enforce the scheme, I would suggest, in full measure, and not, for example, some alternative scheme, such as that devised in the case of Iceland and Norway, whereby those states are now entitled to refuse to extradite their own nationals, which under the EAW scheme is not a permitted restriction. Above all, it has to be acceptable to the other 27 EU states.

For my part, I cannot see how any replacement for the existing role of the CJEU would be an improvement on it. As I have said on other occasions, I greatly regret that the Government have demonised that court and, essentially on ideological or doctrinal grounds, are intent on ending its jurisdiction. I cannot think of a single instance of that court’s rulings in this field which has caused the UK the least problem or, indeed, been regarded as in any way unsatisfactory. That court may on occasion be criticised for its integrationist approach and its bias towards ever-closer union, but no such tendency has the least application or relevance in this particular context, and to schemes such as the EAW, and so too, indeed, in relation to other criminal justice measures which we opted back into.

I am conscious that I am taking up a lot of your Lordships’ time, but it is perhaps worth mentioning that essentially the same point arises also with regard to a number of EU civil justice co-operative measures: the various Brussels Regulations, maintenance regulations and so forth, dealing with a host of important questions affecting our citizens and businesses, the recognition and enforcement of judicial judgments, family law disputes and so on. All these were the subject of an excellent report, and subsequent debate last December, led by the noble Baroness, Lady Kennedy of The Shaws. Frankly, the same problems of certainty, predictability and continuity were left at the end of that debate as I fear may be left at the end of today’s debate too. I would dearly love the Minister to assuage my doubts and misgivings when he comes—as I understand it, comparatively fresh to this issue—to wind up. I just hope he can.

As a postscript, the one point on which I record my disagreement with the noble Baroness, Lady Ludford, is on the European Charter of Fundamental Rights. My mind of course, as always, remains open until I have heard the last word of the argument on both sides, but my present feeling is that the Government are right to discard that. I can see that it would add nothing whatever to the issue of the European arrest warrant.

European Union (Withdrawal) Bill

Lord Brown of Eaton-under-Heywood Excerpts

Tuesday 30th January 2018 Lords Chamber

[Lord Brown of Eaton-under-Heywood (CB)]

My Lords, I am happy to follow the noble Baroness, Lady Thornton, particularly as on this occasion she has said nothing to make me change my speech. I remain a remainer but, for the purposes of this Bill, regard that as a complete irrelevance. As many have said, this is a necessary continuity Bill to transpose EU law, which represents a large part of our existing law, into UK law when we repeal the 1972 Act. In short, it will avoid a huge legal vacuum if and when we leave the EU.

That said, save in one eventuality only, the entirety of this Bill could and in some ways—pace the noble Lord, Lord Wilson of Dinton—should more appropriately be dealt with not here but in the next Bill. The withdrawal agreement and implementation Bill will come along later in the year when, one hopes, we will know—at least to the extent of heads of agreement—the basis on which we are leaving. The one eventuality in which this Bill truly would be crucial would be if—one hopes it is a remote “if”—the Government at some point abandoned negotiations for an agreed withdrawal and we simply crashed out of the EU on exit day. Then indeed, with no prospect of a later Bill, a continuity Bill to keep our laws intact would be required. That eventuality apart, why can all these provisions, as to what should be retained law and our future approach to it, not be part of the implementation Bill?

In all probability, we will initially leave by a transition, implementation or standstill period—call it what you will. During this period, we will continue to recognise the jurisdiction and jurisprudence of the CJEU. Given that, surely the point at which EU law will be frozen and, as retained law, become part of UK law will be at the end, not the beginning, of that transitional period. Clauses 2 and 3, which in effect freeze EU law as at exit day, will have to be amended, presumably by the implementation Bill itself rather than by any of the highly contentious regulation-making powers in this Bill, most notably Clause 9(2).

Incidentally on the question of the Bill’s regulation-making powers, not only do Henry VIII powers—executive powers to repeal or amend primary legislation —need to be curbed; so too we should place controls on the Executive’s power by secondary legislation, which is generally unamendable and not that closely scrutinised, to implement policy decisions that are more properly the subject of primary legislation.

That takes me to the Constitution Committee’s recommendation in yesterday’s report that “retained direct EU law” should have the legal status of “domestic primary legislation”. That is a most interesting recommendation. Instinctively I am inclined to agree, in so far as it would prevent retained law being changed merely by executive regulation by secondary legislation. However, I am less convinced that retained law should not be subject to the Supreme Court, as proposed under Clause 6(4)(a) and 6(5), being able to depart from it as it can from its own or previous House of Lords decisions under what lawyers know as the 1966 Practice Statement—exceptionally and only for compelling reasons. That is essentially the test now proposed in the Bill.

I have a final word or two about the Charter of Fundamental Rights being disapplied by Clause 5(4). I see no good reason to retain the charter. We are of course retaining the Human Rights Act and our full acceptance of the reach of the European Convention on Human Rights. The convention and the Supreme Court’s ever-growing readiness to invoke our own historic common law, as necessary, fully meet our human rights requirements. It is true, as the noble Baroness, Lady Smith of Basildon, pointed out in her speech, that David Davis himself invoked the charter last year when making his complaint against the UK about investigatory powers, but all that is now expressly taken care of in the Data Protection Bill that we have just passed on.

The charter, I suggest, would needlessly complicate things to no good purpose. It is, at best, of uncertain reach, applying as it does only to the implementation of EU law, which is, of course, to become a past concept. The present criteria for deciding the scope of EU law is already described as “incredibly ambiguous”. The charter, of course, consists both of rights, essentially mirroring ECHR and other international law rights, and of principles. The latter are mostly social and economic, are really aspirational and without direct effect. In short, I accept the Government’s arguments on the charter, but clearly there are aspects of the Bill that will need amendment and we look forward to 10 busy days to deal with those.