Estates of Deceased Persons (Forfeiture Rule and Law of Succession) Bill

Lord Deben Excerpts

Wednesday 15th June 2011 Lords Chamber

[Lord Flight]

I should probably defer to the noble Lord, but I do not think that was a full answer to my mind to the points raised by the noble Lord, Lord Waddington, or to the whole issue of judges subsequently choosing to interpret the position with regard to the martyrs’ case. It seems perfectly possible in theory that there may be a House of Lords judgment which is perfectly valid and accepted at the time it is given, but subsequently manages to get twisted by the interpretation of particular judgments by noble Lords. I come back to the rather straightforward point, which is that from the point of view of those who wish to have this territory absolutely nailed, what is wrong with a belt and braces approach?

[Lord Deben]

I would not like it to be thought by your Lordships that those who were not lawyers disagreed with the lawyers. As a non-lawyer, it seems to me to be very clear that there is a good reason why we should not have the additional parts: it is misleading to have them. It suggests that the additional parts have the same validity and strength as the central issue of the 1972 Act. I would account it as the proudest moment of my parliamentary history when I voted for that Act—it was the moment when we achieved the thing that in all my young life I longed to achieve, which was the beginning of closer European unity, for which I have always stood. I do not want that Act to be removed from its pedestal place. It is the Act that says, very clearly, that the United Kingdom is a sovereign state, and from its sovereignty it grants this particular place for European legislation. Should at some future time a Government, in foolishness almost unimaginable, decide that they did not wish to continue with that Act this sovereign Parliament could, by repealing that Act, change the circumstances—and change them of its own strength, volition and powers.

This is a declaratory statement. I agree with the noble Lord, Lord Richard, that it is not necessary but given that it has been raised, it becomes necessary. Now that it is necessary it is crucial that it should be extremely clear. The noble and learned Lord, Lord Mackay of Clashfern, has given a great opportunity to this House to unite around something which should not divide those on either side of the European divide, or indeed those in the general mishmash in the middle. The worry which I have—this is why I have become less happy in the mean time—is the question which the noble Lord, Lord Kerr, raised earlier: if the Government do not accept this as a reasonable matter, what is it that is hidden in that alternative? For this must be right and if it is not, the rest is wrong.

I shall say one thing to the noble Lord, Lord Waddington. If his worry is a real one, he is worried by either of the statements before us. If his worry is a real one and the noble Lord, Lord Pannick, got it wrong, the fact is that he would be wrong about the Government’s formulation as well. Although I therefore have sympathy with the noble Lord, Lord Waddington, he cannot defeat his problem by preferring the one against the other. To defeat his problem, he would have to initiate some extra bit to the Act to make it clear. I do not believe that is necessary but his intervention, although admirable, is really not about the division between these two formulations, so I pray that your Lordships’ House will support the amendment.

However, I would like it even more if the Government were to say that they thought, on balance, it would be better to go with what is clearly a widely held feeling in all parts of the House and with those who are in favour and those who are against our membership of the European Union.

[Lord Elystan-Morgan]

My Lords, it does not matter a great deal whether the submission made by the noble Lord, Lord Deben, or that made by the noble Lord, Lord Waddington, is correct. At the end of the day, it means not only that the European Communities Act 1972 made great inroads into our independence but that other Acts of Parliament have done exactly the same. However, through the machinery of Section 3 of the 1972 Act, the inroads are not permanent. They are as permanent as we wish them to be. It is very much the same as if we made a lease of part of our sovereignty, but a lease that we can recall and cancel at any time we so decide.

The only other matter that I would like to mention is the modesty with which the noble and learned Lord, Lord Howe, disassociated himself from the triumph of the 1972 legislation passing through the House of Commons. It is true that he did not draft the Bill, but he steered it with magnificent competence through the House. I remember the back-handed compliment which he had from the late Michael Foot, who said words exactly like these: “The honourable and learned gentleman the Solicitor-General has shown such nimbleness and adroitness as would make the great Houdini look like a helpless arthritic”.