Rule of Law: Law Officers

Debate between Lord Falconer of Thoroton and Lord Keen of Elie

Tuesday 15th September 2020 Lords Chamber

[Lord Keen of Elie (Con)]

My Lords, I would find it difficult to disagree with any of the observations made by my noble friend. Of course, we must advise Government—as we would advise others—to temper the rule of law at the level of both domestic and international law. I have to say to this House that, in my opinion, the present Bill does not of itself constitute a breach of international law or of the rule of law.

[Lord Falconer of Thoroton (Lab)]

The key characteristic for law officers is not brains—they can get all the advice they want from the English Bar or the lawyers—but backbone. The Secretary of State for Northern Ireland confirmed that a breach of international law would be caused by the passage of the United Kingdom Internal Market Act under Article 4 of the withdrawal agreement.

The Advocate-General produced a load of rubbish to the EU withdrawal committee this morning when he said that Article 16 justified saying that it was not a breach. The party that changes its story on the law—as this Government do—shows it lacks backbone. How does the Advocate-General feel able, consistent with personal honour and professional duty, to remain as Advocate-General?

[Lord Keen of Elie (Con)]

My Lords, let us be clear that I have satisfied myself as to the correct legal position in this context. As I indicated to the EU Justice Sub-Committee this morning, it is my view that the Secretary of State for Northern Ireland essentially answered the wrong question.

[Lord Falconer of Thoroton (Lab)]

For goodness’ sake. He is a Cabinet Minister.

[Lord Keen of Elie (Con)]

I hope that the noble and learned Lord has not become unwell in view of the noises emanating from him—but, if he has, I wish him well for the future.

Let us be clear that we are in a situation where we have rights under an international treaty. Those rights include our response to any breach of obligations by the counterparty, be that a lack of good faith or such action as would fundamentally alter the obligations under the treaty, giving rise to a position—under Article 62 of the Vienna Convention—where we could withhold our operation of the treaty.

It has been suggested to me by no less a legal authority than the noble and learned Lord, Lord Falconer of Thoroton, that we can simply rely on Article 16. This has immense novelty value. The idea the Executive can enter into a treaty at the level of international law and then rely on that to displace primary legislation passed by the domestic Parliament is, I respectfully suggest, extraordinary. That requires these mechanisms in the UKIM Bill to address the contingency of a material breach that we need to address.

Rape: Prosecutions and Convictions

Debate between Lord Falconer of Thoroton and Lord Keen of Elie

Monday 14th September 2020 Lords Chamber

[Lord Keen of Elie (Con) [V]]

My Lords, wrongly and deliberately accusing someone of a sexual offence is a very serious matter and should be treated as such by criminal law. Clearly, the impact on those falsely accused and their families can be devastating. Fortunately, these cases are extremely rare and should not distract us from the need to support genuine victims of such crimes to come forward and feel confident that they will be listened to.

[Lord Falconer of Thoroton (Lab)]

Something is going wrong here. As my noble friend Lady Gale said, in 2019-20 there were 55,000 rapes recorded by the police, with just 2,102 prosecutions and 1,439 convictions; yet three years earlier, there were 44,000 recorded rapes with 5,000 prosecutions and nearly 3,000 convictions. The dramatic drop in prosecutions and convictions is put down by Sarah Crew, the most senior police officer for rape in England and Wales, to the Crown Prosecution Service increasing the standard before it will prosecute. This has led also to the police submitting fewer cases to the CPS, because they know it will not prosecute. What changes to the approach on rape prosecutions did the CPS adopt between 2016-17 and 2019-20, and has its approach now changed again?

[Lord Keen of Elie (Con) [V]]

My Lords, there has been no material change to the CPS’s approach. The evidential stage of the code test remains as it was, despite some suggestions to the contrary. Indeed, the most recent inspectorate report, in 2019, observed that the code test was being applied correctly in 98% of cases. But I acknowledge that we face challenges in this area, and we are seeking to address them, as I say, by way of a joint inspectorate examination of the issue and a cross-government review of how we can improve matters.

Rule of Law

Debate between Lord Falconer of Thoroton and Lord Keen of Elie

Thursday 10th September 2020 Lords Chamber

[Lord Falconer of Thoroton]

To ask Her Majesty’s Government, further to the remarks made by the Secretary of State for Northern Ireland on 8 September confirming that certain provisions of the United Kingdom Internal Market Bill relating to the Northern Ireland Protocol would “break international law” (HC Deb, col 509), whether they are committed to the rule of law.

[The Advocate-General for Scotland (Lord Keen of Elie) (Con) [V]]

My Lords, the Government have not proposed any breach of UK law. On occasions, tensions can arise between our domestic obligations and our international commitments and we will always seek to resolve these, as we have in the past. The freedoms and protections that we all enjoy rely on the rule of law; it is an important constitutional principle and, as a responsible Government, we remain committed to it.

[Lord Falconer of Thoroton (Lab)]

I am grateful to the noble and learned Lord, the Advocate-General, for that Answer. Brandon Lewis’s acceptance that this Government are deliberately breaking international law will be thrown in the UK’s face for years. Expect dictators to justify murderous breaches of international law by relying on the Lewis mantra: “specific and limited”.

Demanding compliance with anti-Covid measures, yesterday the Prime Minister said:

“We expect everybody … to obey the law.”—[Official Report, Commons, 9/9/20; col. 608.]


The Home Secretary condemned Extinction Rebellion for law-breaking. The rule of law is not pick and mix, with acceptable laws chosen by the Home Secretary or an adviser in No. 10. This stinking hypocrisy chokes our country’s reputation and destroys our Government’s ability to lead at home and make agreements abroad.

In June 2018, the noble and learned Minister, a law officer, whom I am surprised to see in his place, lectured on the importance of law, describing the law officers as

“champions of the … law within government”,

and said that their

“duty … is to ensure that the Government acts lawfully at all times”.

Jonathan Jones agreed and left. Law officers and the Lord Chancellor must stand by their self-proclaimed duty or leave. Otherwise, they will be dismissed as long on self-importance and short on the backbone that their great offices require.

I have two questions. First, how is the admitted breach of international law consistent with the UK’s commitment to the rule of law? Secondly, on what basis does he, as a law officer, remain part of the Government?

--- Later in debate ---

[Lord Keen of Elie (Con) [V]]

My Lords, I think the noble and learned Lord broke up slightly when he was asking his second question, but I certainly understood the drift of his remarks.

[Lord Falconer of Thoroton (Lab)]

Secondly, on what basis does he, as a law officer, remain part of the Government?

[Lord Keen of Elie (Con) [V]]

I thank the noble and learned Lord.

My Lords, from time to time, as I indicated, tensions occur between our domestic legal obligations and our position with regard to international law. Indeed, in 1998, the then Labour Government passed the Human Rights Act, including Section 19 that required statements of compatibility to be made when Ministers introduced legislation. Interestingly enough, Section 19(1)(b) had an alternative statement, which required the Minister to say that

“he is unable to make a statement of compatibility”

with our international obligation but that

“the government nevertheless wishes the House to proceed with the Bill.”

In 2002, the Labour Government introduced the Communications Bill with just such a certificate, because it was perceived that Clause 309 of that Bill could be considered to violate our international obligations under Article 10 of the convention. From time to time, we face these tensions.

Here, there is a very real tension between the direct effect of EU law pursuant to Article 4 and what would occur if we had no agreement at the end of the transition period and there was no determination by the Joint Committee as to the way forward under the Northern Ireland protocol. That is because there are other provisions apart from Article 4. There is Article 4 of the protocol itself, which determines that Northern Ireland is part of the UK’s customs area. There is Article 16 that deals with societal and economic pressures that could lead to us being in breach of the Belfast agreement. All these have to be considered.

Against that contingency, Ministers considered it appropriate to provide, or ask Parliament to provide, a means of addressing these issues. At the end of the day, it will be for the sovereign Parliament to determine whether Ministers should be able to deal with such a contingency. Indeed, it will be for this House to determine whether it considers it appropriate for Ministers to be able to deal with such a contingency.

In these circumstances, I continue in post and continue to advise, encourage and stipulate adherence to the rule of law—understanding that, from time to time, very real tensions can emerge between our position in domestic law and our position in international law. It is not unprecedented for legislation passed by this Parliament to cut across obligations taken at the level of international law. In those circumstances, domestic legislation prevails.

Covid-19: Prisoners

Debate between Lord Falconer of Thoroton and Lord Keen of Elie

Thursday 16th July 2020 Lords Chamber

[Lord Keen of Elie]

My Lords, I am perfectly content to take further questions on this issue as we seek to implement some of the recommendations of the IAP report. As I indicated, it has already been the subject of consideration at a joint sub-committee ministerial meeting and we are taking forward some of the recommendations. I have mentioned two; the others I would mention are improvement in family contact, and the introduction of bereavement support and counselling for prisoners.

[Lord Falconer of Thoroton (Lab) [V]]

I congratulate the independent advisory panel on its report. One problem at the moment, because of coronavirus, is the fact that there are very few jury trials or magistrates’ courts trials, the consequence of which is that more prisoners are spending longer on remand. Can the Minister describe to the House what steps have been taken by the Prison Service to facilitate having more, and quicker, jury trials and magistrates’ courts trials, in particular by facilitating video links to prisons, courts in prisons and lawyers being able to take instructions from people remanded in custody?

[Lord Keen of Elie]

My Lords, the Prison Service is not directly facilitating the issues relating to jury trials, but we are taking steps to introduce additional courts so that we can, essentially, restart and develop the criminal justice system.

Private International Law (Implementation of Agreements) Bill [HL]

Debate between Lord Falconer of Thoroton and Lord Keen of Elie

3rd reading & 3rd reading (Hansard) & 3rd reading (Hansard): House of Lords
Monday 29th June 2020 Lords Chamber

[The Advocate-General for Scotland (Lord Keen of Elie) (Con)]

My Lords, I am grateful to the House for Members’ engagement on the Bill throughout its passage. The amendments in this group are all consequential on the removal of the delegated power contained in the former Clause 2 of the Bill. I am moving Amendment 1, and support Amendments 2 and 3, as the provisions to which they relate do not function without the delegated power.

Before I turn to the detail of the amendments, I wish to make clear from the outset that we believe that the delegated power contained in the former Clause 2 of the Bill was a necessary, proportionate and constitutionally appropriate measure, for the timely implementation in domestic law of future private international law agreements which the Government had decided that the UK should join. Subject to a successful application, this could have included the Lugano Convention 2007.

Any decision for the United Kingdom to join a treaty or agreement in this area of law would still have been subject to successful completion of parliamentary scrutiny procedures under the provisions of the Constitutional Reform and Governance Act 2010. The former delegated power in the Bill did not alter the well-established approaches to parliamentary scrutiny of treaties and wider ratification processes under CRaG. Instead, it was simply a mechanism to draw down the treaty obligations into domestic law in readiness for ratifying the treaty.

I will now speak to Amendment 1, in my name, which seeks to remove from the Bill subsections (2) and (3) of Clause 2, formerly Clause 3, which establishes the Crown application of the Bill. These provisions were consequential on what was, originally, Clause 2, containing the delegated power. They provided that regulations made in the exercise of the delegated power in former Clause 2 could bind the Crown, subject to exceptions which reflect those contained in Section 51 of the Civil Jurisdiction and Judgments Act 1982, as referred to in subsection (1).

The Government are bringing forward this amendment to remove these subsections from the Bill, as these two interlinked provisions were originally intended to apply to regulations made under the delegated power and therefore serve no function following its removal. As I have indicated, this is purely to ensure that the Bill is workable for its introduction into the other place, given the outcome of our deliberations in this House.

I have also put my name to Amendment 2, in the name of the noble and learned Lord, Lord Falconer of Thoroton. The amendment seeks to remove Schedule 6 from the Bill. It details how the delegated power could be exercised in practice, including the parliamentary procedures to be followed for making regulations. I accept that the House has made its view clear, and without the delegated power in the former Clause 2, Schedule 6 serves no useful purpose. In these circumstances, purely to enable the tidying up of the Bill, we support the amendment to remove Schedule 6 from the Bill at this point.

Amendment 3, also in the name of the noble and learned Lord, Lord Falconer, seeks to amend the Long Title of the Bill. Again, this is a consequence of the removal of the delegated power. Given that the new title more accurately reflects the content of the Bill as amended by the House, namely the implementation of the 1996, 2005 and 2007 Hague Conventions under Clause 1, in these circumstances the Government are content to support the amendment.

I beg to move.

[Lord Falconer of Thoroton (Lab)]

I am obliged to the noble and learned Lord. There is no dispute between us; all three amendments should be approved, to reflect the changes resulting from removing the wider power. The Minister repeated his argument for why that power should be there. We have had this argument three times now. It was rejected when he put it to the Delegated Powers Committee, rejected when it was put to the Constitution Committee, and massively rejected when it was put before your Lordships’ House, so there is no point repeating it again.

The Minister said that we should be dealing with subsequent conventions by secondary legislation. We have made amendments in this Bill to the three conventions that we are bringing in today. We could not have done so if his Clause 2 powers had been there. I hope that he will bring back what was the view of everybody in the Chamber, apart from him—namely that the Clause 2 power should not be there.

Private International Law (Implementation of Agreements) Bill [HL]

Debate between Lord Falconer of Thoroton and Lord Keen of Elie

Report stage & Report stage (Hansard) & Report stage (Hansard): House of Lords
Wednesday 17th June 2020 Lords Chamber

[Lord Falconer of Thoroton (Lab)]

My Lords, the noble and learned Lord, Lord Wallace of Tankerness, makes a very strong case. It is extraordinary that this has not yet been incorporated into the law of England, Wales and Northern Ireland. I very much hope that the noble and learned Lord, the Minister, will explain why that is not the case and, at the very least, give us a timetable for it becoming part of our domestic law.

[The Advocate-General for Scotland (Lord Keen of Elie) (Con)]

My Lords, I begin by thanking the noble and learned Lord, Lord Wallace of Tankerness, not only for his contribution to the debate but for engaging with my officials and me on this matter.

As noted, the amendment seeks to deal with the ratification of the 2000 Hague Convention on the International Protection of Adults in respect of England, Wales and Northern Ireland. Of course, the United Kingdom has ratified this convention, but the extent of this is limited to Scotland. I am pleased to confirm to the noble and learned Lord that it is our intention to extend the ratification of this convention to England and Wales. Discussions have commenced with officials in Northern Ireland to ascertain whether the Northern Ireland Executive would require the extension to apply to Northern Ireland.

The Mental Capacity Act 2005 largely implements the convention and contains powers to make any additional provision required. Schedule 3 to that Act provides for the recognition and enforcement in England and Wales of protective measures made in respect of vulnerable adults by the courts of other contracting states. Some Schedule 3 provisions are already in force and some will come into force upon ratification, at which point reciprocal recognition of domestic protective measures by other states will also come into effect. There remain some outstanding matters that require further implementation; largely, additional operational arrangements for the location or placement of vulnerable adults as between contracting states.

It is the Government’s view that the most appropriate way to implement these remaining matters is to make any additional provision required in or under the 2005 Act, using the powers provided for in that Act for this specific purpose. We will proceed with this as soon as we reasonably can, taking account of the need to take the Northern Ireland Executive with us if it is their wish that the matter be extended to Northern Ireland. In these circumstances, I invite the noble and learned Lord to withdraw this amendment.

--- Later in debate ---

[Lord Falconer of Thoroton]

My Lords, I support the amendments. I will make two points. First, had the noble and learned Lord had his way in Clause 2, he could not have made these amendments, which indicates the importance of primary legislation. Secondly, I hope that he heeds what the noble and learned Lord, Lord Mance, said in his closing remarks. They were important. In the future, it would be more sensible to consult the Lord Chancellor’s Advisory Committee on Private International Law before producing primary legislation, rather than after.

[Lord Keen of Elie]

My Lords, I am most obliged, particularly for the contribution from the noble and learned Lord, Lord Mance. As he noted, as co-chair of the Lord Chancellor’s Private International Law Advisory Committee, he and I discussed this very point in detail at the May committee. I greatly appreciate not only his contribution but those of the other members of the committee, who have an in-depth understanding and knowledge of how these international agreements work and how the choice of court clauses work.

I am conscious of the issue of choice of jurisdiction and choice of law clauses arising in contracts made before 1 October 2015. I am also conscious of our need to do what we can to simplify the process in regard to that matter and, indeed, the matter of serving out of a jurisdiction, which we would have to look at in the context of the rules. These matters have been raised and I have them in mind at present, so I am most obliged to noble Lords for their contributions.

--- Later in debate ---

[Lord Keen of Elie]

My Lords, clearly, given that Clause 2 is no longer part of the Bill, this amendment would have no effect. However, I understand why the noble and learned Lord moved it—to allow further discussion of the issue. We believe that the inclusion of the provision to which the amendment relates would have been important in allowing the implementation of private international law agreements that necessitate the creation of a criminal offence, particularly in the family law area. I mentioned that in Committee.

In response to the observations of the noble and learned Lord, Lord Mance, I am not aware of any current examples where we have provided for criminal penalties when implementing a private international law agreement. However, that does not mean that it would not be the appropriate step to take in future agreements, for example, on mutual recognition and enforcement of protection measures, where the equivalent domestic orders were enforceable by criminal penalties such as orders under the Family Law Act 1996, or, indeed, injunctions under the Protection from Harassment Act 1997. One is looking to the equivalents of such orders made by a foreign court when it comes to enforcement in the United Kingdom.

I continue to suggest that the safeguards on the power that I outlined in Committee, including use of the affirmative procedure as a matter of course, would be effective and appropriate in this regard. However, since the Clause 2 delegated power is no longer part of the Bill, I invite the noble and learned Lord to withdraw his amendment. In the event that Clause 2 comes back to this House, it appears that there might be scope for him to revisit this issue.

[Lord Falconer of Thoroton]

The only example that the noble and learned Lord has given of the need for a criminal offence is in relation to family law—for example, making it a criminal offence not to comply with an order made by a foreign court. I think that is a very sensible power to have. What the level of criminality should be, and whether we should recognise those sorts of offences, is plainly a matter on which Parliament should properly take a view in primary legislation. I was extremely struck by the fact that he gave no examples in answer to the question of the noble and learned Lord, Lord Mance.

I am absolutely bewildered as to why the Government are doing this. The amendment does not stop them doing what they want to do in relation to private international law; all it requires is that Parliament gets a say and can amend things, as we have just done in relation to the implementation of the three treaties that we are dealing with today. What is wrong with that? It does not cause problems. It means that you get much higher-quality implementation, as we discovered this afternoon through the amendments being debated.

Is it a knee-jerk reaction on the part of the Government that they want to keep Parliament out of things as much as possible? The Minister gives fatuous justification for this by saying that it is “necessary” and “essential” for the UK to remain in its pre-eminent position. This is obvious tosh, as we have been in a pre-eminent position without this existing power before.

I am not going to press this amendment because, as the noble and learned Lord impliedly accepts, Schedule 6 will drop out at Third Reading, which means that there will be nothing to amend. I am very surprised that he is being a dog in the manger about that—of course that schedule has to come out once Clause 2 has come out. I would be interested to hear whether he accepts that; if he does not accept it, I will think that he is behaving slightly childishly.

I am not sure whether our rules allow the noble and learned Lord to come back at this stage. I see noble Lords indicating that they do, so could he confirm that he will agree that Schedule 6 will come out before the Bill goes to the other place?

[Lord Keen of Elie]

My Lords, it appears to me that Schedule 6 is quite distinct to Clause 2 as a part of the Bill, but, clearly, it is entirely dependent upon the existence of Clause 2. Beyond that, I do not really comprehend what the noble and learned Lord is talking about.

[Lord Falconer of Thoroton]

I will explain the question. Does the noble and learned Lord agree that, now that Clause 2 has been deleted, Schedule 6 should also be deleted?

[The Deputy Speaker]

Does the Minister wish to respond?

[Lord Keen of Elie]

It may well be that it should be deleted, but it is for the noble and learned Lord to move his amendment if he wishes it to be deleted.

[Lord Falconer of Thoroton]

As the noble and learned Lord knows, I do not have such an amendment down. Obviously, what I was saying was that I would put down an amendment at Third Reading. Does he agree that that would be agreed to by the Government?

--- Later in debate ---

[Lord Falconer of Thoroton]

I support the principle of this amendment. It is all of a piece with the way this legislation has been conducted. My noble friend Lord Hain described the attitude of the Minister when this was raised with him in Committee as “high-handed” and “cavalier”. Prior to that, as my noble friend said, there had not been proper consultation with the devolved Welsh Administration. The noble Baroness, Lady Ritchie, indicated that the Northern Ireland Assembly did not feel it had been consulted. The noble and learned Lord, Lord Hope of Craighead, said earlier that the devolution aspect of this had not been thought through. As became apparent during the earlier stages of this Bill, the Lord Chancellor’s Advisory Committee on Private International Law was not consulted at all before the Bill was laid before Parliament.

This is not the right way to legislate. I very much hope that the Minister will reflect on the failures properly to deal with this Bill and the inadequacies in it as a result, in particular Clause 2 and the need significantly to amend Clause 1. Both Clause 1, which has broad support throughout the House, and the need for its amendment indicated how misjudged Clause 2 is. If the Minister has any respect for this House, he will properly respond to the points raised on this amendment.

[Lord Keen of Elie]

My Lords, I thank the noble Lord, Lord Hain, for meeting with me after Second Reading, when we discussed what he termed the copper-bottomed guarantee that he had sought in that debate. I explained to him the difficulty I had with that demand, given that it conflated the position of the Welsh Government with that of the Northern Ireland and Scottish Governments in circumstances where there was a quite separate and distinct divorce settlement with regard to the latter two, in contrast with the position in Wales. I understood him to appreciate that—indeed he even mentioned amending his amendment. I indicated that I did not think that necessary, because of course we are dealing here with a point of principle, and an important one.

Before I turn to the detail of the amendments, I stress to noble Lords that Ministry of Justice officials are in regular conversation with their counterparts in the devolved Administrations, not only about the matters contained within the Bill but whenever private international law issues arise that touch on areas of their devolved competence more generally. We are very conscious of our responsibilities under the devolution settlements, and our approach in this area is always to seek to engage early and often when any questions arise. It is my view that such an approach of early engagement is the best way to make consultation genuinely meaningful.

The noble and learned Lord, Lord Falconer of Thoroton, referred to an earlier observation by the noble and learned Lord, Lord Hope, with regard to his concern over the devolved aspects of the Bill. I have to say that I am perplexed by the observations of the noble and learned Lord, Lord Hope, and perhaps I should have responded earlier. There are two distinct ways in which these matters can be dealt with in the devolved context of Scotland. One is by the Scottish Ministers and the other is by the Secretary of State with the consent of the Scottish Ministers. The latter avenue is of course there because there are circumstances in which the Scottish Government will say to the UK Government, “We are quite content that you should implement these provisions throughout the United Kingdom without us having to replicate your efforts”. I hope that that assists in clarifying that point.

The Government have fully honoured the devolution settlements in this area as we approached the drafting of the Bill, including, I may add, the Clause 2 power itself and how it can be exercised in particular in relation to Northern Ireland and Scotland. It is important to point out at the outset that the devolution settlement is different in distinct parts of the United Kingdom, as I said before, and that difference is reflected in the Bill.

Amendment 11 affects Scotland and Northern Ireland, where private international law is a devolved matter, differently to Wales, where these matters are almost entirely reserved. For Scotland and Northern Ireland, there are already two designated “appropriate national authorities”, as I just mentioned, which may exercise the Clause 2 power for those jurisdictions: either the Scottish Ministers or a Northern Ireland department, or alternatively, the Secretary of State acting with the consent of those Ministers or the Northern Ireland department. Either way, the ultimate decision on use of the Clause 2 power in Scotland and Northern Ireland rests with the devolved Administrations, and that is reflected in the Bill.

In principle, I have no objection to consulting before the Secretary of State can make regulations which apply in Scotland and Northern Ireland. Indeed, it is something that would happen, because he can make those regulations only with the consent of the Scottish Government or of the Northern Ireland department. I refer also to Clause 2(7)(b)(i) and (c)(i), which provide that the Secretary of State already needs the consent of the Scottish Ministers or a Northern Ireland department to legislate for those parts of the United Kingdom. I do not see how one would gain such consent without consultation. It goes without saying that if you are to secure consent, you must consult and engage.

The Scottish Government and Northern Ireland Administration have been fully engaged in the drafting of the Bill, including the Clause 2 power, and there is strong support from both devolved Administrations on the Clause 2 power as currently drafted. That is reflected in the fact that a legislative consent Motion has already been granted by the Northern Ireland Assembly, and another has been laid before the Scottish Parliament, with both the Scottish Government and the Scottish Parliament’s Justice Committee recommending that consent be granted. There we have a clear picture of what is happening in the devolved Administrations with regard to the Bill, and in particular Clause 2, and their welcome of these developments. They are the product of consultation and of consent.

Royal Commission on Criminal Justice

Debate between Lord Falconer of Thoroton and Lord Keen of Elie

Wednesday 3rd June 2020 Lords Chamber

[Lord Keen of Elie]

The membership of the royal commission has not yet been finally determined but I am confident that there will be appropriate representation of the legal profession, as there has been with previous royal commissions looking at criminal justice.

[Lord Falconer of Thoroton (Lab)]

As previous noble Lords have indicated, there is an immediate crisis in the criminal justice system, made worse by the Covid-19 crisis—demonstrated, for example, by the fact that there were about 37,000 cases waiting for a jury trial when the crisis struck, and approximately seven of those have been dealt with since. What are the Government’s immediate plans to relieve the current huge pressure on the criminal justice system, which obviously cannot wait for the long grass of a royal commission?

[Lord Keen of Elie]

The senior judiciary has been looking at the ability to carry on criminal trials and work in the criminal justice system remotely, and implementing measures to that effect. We hope that these will be developed in the immediate future.

Private International Law (Implementation of Agreements) Bill [HL]

Debate between Lord Falconer of Thoroton and Lord Keen of Elie

Committee stage & Committee: 2nd sitting (Hansard) & Committee: 2nd sitting (Hansard): House of Lords
Wednesday 3rd June 2020 Lords Chamber

[Lord Falconer of Thoroton (Lab)]

I am grateful to the Minister for indicating that he is not going to proceed with this amendment today and that he has moved it simply to open it for debate. We oppose the amendment because we oppose in principle Clause 2, which inappropriately gives the Government the power by secondary legislation to introduce important changes to domestic law to reflect private international law agreements. At the moment, if that is the principle that we stand on, in our view it is wrong to say that the Isle of Man, of all the parts of the Crown dependencies, should have a special right to do it by statutory instrument. That, as previous Lords have indicated, would differentiate it from everyone else. We are against it for that reason.

We are also against it because this change would allow for differential application of international agreements as between the various parts of the United Kingdom and, for the reasons we gave the previous time this Committee met, we are against that. So, we oppose the amendment.

[Lord Keen of Elie]

I am obliged to noble Lords for their contribution to the debate, and note what has been said. Perhaps I may respond to the points made by the noble Lords, Lord Adonis and Lord Mann, and touched upon by the noble and learned Lord, Lord Falconer—although I have a correction to make there. The reason why this is being done only in respect of the Isle of Man is that the Isle of Man has specifically requested that this mechanism should be available, so that we can proceed by way of an Order in Council from the Privy Council. It will be for the other Crown dependencies to determine whether and when they wish to implement primary legislation within their own legislatures to come within the ambit of such international agreements as the United Kingdom draws down.

The noble and learned Lord, Lord Falconer of Thoroton, referred to variation between parts of the United Kingdom but of course the Crown dependencies are not part of the United Kingdom. They have a unique status and it is for them to determine whether and to what extent they wish to become a party to legislation that draws down into domestic law international treaty obligations. I continue to believe that this amendment is important and respect the request of the Government of the Isle of Man. However, I recognise the concerns expressed about the links between this amendment and the Clause 2 power to which exception is taken. The noble Lord, Lord Marks, and the noble and learned Lord, Lord Falconer of Thoroton, made that point. In these circumstances I will therefore withdraw the amendment, but I intend to continue this discussion at a later date. For present purposes, I beg leave to withdraw the amendment.

Private International Law (Implementation of Agreements) Bill [HL]

Debate between Lord Falconer of Thoroton and Lord Keen of Elie

Committee stage & Committee: 1st sitting (Hansard) & Committee: 1st sitting (Hansard): House of Lords
Wednesday 13th May 2020 Lords Chamber

[Lord Keen of Elie]

There may of course be incidental policy issues that arise when we come to draw down into domestic law an obligation, or obligations, undertaken at the level of international law. Clearly, in circumstances where there were policy choices to be made, a Government would consult upon those matters to bring forward policy choices that were acceptable to stakeholders. If they were not acceptable to Parliament, even after consultation, Parliament would not pass the affirmative SI in question. I do not accept that it is necessary in each and every instance to bring forward primary legislation for this purpose. In those exceptional cases where there may be consequential issues to be addressed, clearly they will be addressed at policy level. They will be consulted upon and the matter brought forward. The Government will not bring forward a policy proposal for an incidental measure without realising that Parliament would be prepared to accept it. That would be a pointless exercise.

[Lord Falconer of Thoroton]

This very interesting debate has raised, in effect, two substantial questions: as a matter of principle should there be the Clause 2 power at all and, if not, should we nevertheless make an exception for the Lugano convention?

First of all, should there be this power at all? In a speech that might be described as a Scottish smokescreen —because it dealt primarily with drafting issues and issues about the dependent territories and, important as those are, did not really address the principle at all—the noble and learned Lord, Lord Keen of Elie, gave one line to justify this unprecedented power. He said that not having this power under Clause 2 would prevent implementation of any international treaty “in a timely manner”. I forgive the noble and learned Lord for putting it in such wide terms and assume he means private international law treaties only. With respect, what he says is plainly wrong.

The noble and learned Lord was given the opportunity on two occasions to provide evidence that it would prevent the implementation of private international law treaties in a timely manner, once before the Delegated Powers Committee of this House and once before the Constitution Committee. The Delegated Powers Committee said that the Ministry of Justice

“offers no empirical evidence that delay has been caused to stakeholders by late implementation of private international law agreements … The argument from delay, apart from involving unsubstantiated assertion, might justify dispensing with Acts of Parliament in other areas where governments need to legislate quickly.”

It rejected it on grounds of lack of evidence and on grounds of principle.

The Constitution Committee also looked at the very same assertion made to it, and said:

“However, the Government offers no evidence to support this argument. The UK has become a party to only 13 Hague Conventions over the course of nearly 60 years. In respect of some of the Conventions the UK has signed, full ratification and implementation has taken years to complete. The Hague Convention of 13 January 2000 on the International Protection of Adults … was ratified for Scotland in 2003 but has not been ratified for England and Wales or for Northern Ireland … While there may or may not be an increase in the number of PIL agreements that are made in the coming years, there is nothing to suggest that PIL agreements will be produced at a rate that would preclude implementing them via primary legislation, nor that there are exceptional circumstances so urgent that resort to a fast-track bill would be impossible. It is therefore difficult to give weight to the Government’s argument that reputational damage will result from not having the power.”


Anybody who has looked at this in detail thinks the Minister’s argument is rubbish. It is not surprising that he never mentioned it at Second Reading.

The Minister then cited occasions when it has been done before, in particular two primary Acts of Parliament: the Administration of Justice Act 1920 and the Foreign Judgments (Reciprocal Enforcement) Act 1933. Reading those is worth while. The 1920 Act refers to a provision whereby a judgment obtained in one dominion can be enforced in other dominions as long as the dominion passes a power to agree to that. The 1920 Act—the 1933 Act is the same, but not in respect of the Empire—says that if another country agrees to this convention, we can add the name of that dominion or country to the list, having approved the convention by primary legislation. The idea that those two Acts give support to the proposition that we can now import wholesale into our domestic law every international treaty we enter into is absolute nonsense. They provide no sort of precedent at all. I really hope the Minister has noted that every single person who spoke took the view that Clause 2 was inappropriate.

As far as Lugano is concerned, I thought the points made by the noble and learned Lord, Lord Mance, were powerful. I do not know whether they are right or wrong, but they illustrate that we need a proper debate about Lugano: we cannot just import Lugano into our law by secondary legislation. Our debates about Lugano today—which, as one speaker identified, were not answered by the Minister; we never debated Lugano, we simply debated the principle of whether Lugano could be an exception to the deletion of Clause 2—illustrate that this very important convention, about which two views prevail, should be the subject of primary legislation. Of course, I will come back to this on Report.

The important point that was made about procedure, and which is worth emphasising, is that we cannot change a Bill unless there is consent, or as a result of a Division which agrees to change that Bill. It means that we cannot proceed with legislation until we have the ability to divide on legislation, whether remotely or in person. We cannot get to the next stage of this Bill until we have the power to divide. With the permission of the House, I beg leave to withdraw the amendment.

--- Later in debate ---

[Lord Falconer of Thoroton]

I simply underline the points made by my noble friend Lord Foulkes and the noble and learned Lords, Lord Wallace and Lord Hope. As far as my noble friend Lord Foulkes is concerned, the purpose of these amendments is to probe; as far as I am concerned, they illustrate the lack of thought that has gone into Clause 2. They simply underline the sense that there should not be a Clause 2.

[Lord Keen of Elie]

My Lords, I am obliged to the noble Lord, Lord Foulkes of Cumnock, for tabling what he very candidly pointed out were probing amendments. I am also obliged to the noble and learned Lord, Lord Wallace, who drew on his experience of the devolved Administrations and was able to outline the position in this matter. I will come in a moment to address the questions raised by the noble and learned Lord, Lord Hope, in the context of these provisions.

As the noble Lord, Lord Foulkes, pointed out, two authorities are identified in this part of the Bill that might proceed to implement matters of private international law in Scotland. That is consistent with legislation in other areas. The Secretary of State might decide, with the consent of the Scottish Ministers, to make UK-wide provision for implementation. That is why he is one of the identified national authorities, because there are circumstances in which the Scottish Ministers would be entirely content for there to be UK-wide provision.

Alternatively, if that is not the case, Scottish Ministers may themselves then proceed as a national authority to implement the matter in domestic law. That is because, as the noble and learned Lord, Lord Wallace, pointed out, the position is that—I am sorry, something came up on another phone and rather distracted me—the implementation of private international law is a devolved issue under the Scotland Act, so allowance is made for both provisions.

As regards this Bill, an LCM was discussed between officials. The Scottish Ministers have recommended that such an LCM should be provided, and the noble and learned Lord, Lord Wallace, pointed out the terms of the recommendation that Scottish Ministers have made to the Scottish Parliament with regard to this matter. Indeed, there was prior discussion about these proposals last year, when the Lord Chancellor, for example, was in communication with the Scottish Government on matters of the convention. Perhaps I can clarify this by reference to the points made by the noble and learned Lord, Lord Hope. The Secretary of State may be a national authority with the consent of Scottish Ministers because Scottish Ministers may, as sometimes happens, wish to see UK-wide regulations made here for implementation. Alternatively, as the national authority, they may choose to do that for themselves. The Secretary of State clearly does have the power to do that because under the Scotland Act there is the power to legislate for the entirety of the United Kingdom as regards the implementation of a matter that is otherwise within the devolved competences, so that does not raise an issue either.

With regard to the matter of whether or when it would be one national authority or the other, that is simply a matter that will be discussed, as it is in other contexts, between the United Kingdom Government and Scottish Ministers. If Scottish Ministers are content that the UK Government should legislate UK-wide on this matter, that will happen. If they are content for that to be done, then Scottish Ministers will deal with the matter. The Secretary of State cannot deal with the matter without the consent of Scottish Ministers, so I hope that that puts minds at rest in this regard.

As regards the identification of the Secretary of State as an authority and the reference, for example, in the Scotland Act to a Minister of the Crown, I accept that the reference in this Bill is more limited. Because I cannot answer immediately, I will consider why it was thought appropriate to limit it to the Secretary of State as opposed to the wider reference to a Minister of the Crown. But I will look at that to see whether there is an issue there that needs to be addressed.

As regards consultation on the implementation of international treaties, that is not an issue, but as regards entering into international treaties, that is of course a reserved matter. I recognise that it is appropriate that Scottish Ministers and others should be consulted on these matters for their interests when they arise. I do not understand that to be a difficulty in this context, nor a matter that would require express provisions in the terms of this Bill.

I thank the noble Lord, Lord Foulkes of Cumnock, for his probing amendment and I hope that I have been able to put minds at rest as regards why there are two identified national authorities for the purposes of Clause 2. In the event that Clause 2 stands, these are appropriate alternative mechanisms for the implementation of these provisions.

One final matter raised by the noble Lord, Lord Foulkes, was the issue of contract, but of course, where you have a contract, it will have a choice of jurisdiction and a choice of law. If the contract has Scotland as a choice of jurisdiction and Scots law as the choice of law, that will be binding if we have a situation in which, for instance, the Lugano provision applies. I hope that that answers the query in so far as I have understood it.

I cannot give a precise date for the provision of the LCM, but as the noble and learned Lord, Lord Wallace of Tankerness, himself indicated, Scottish Ministers have recommended the granting of an LCM, and it is not anticipated that there will be any difficulty. With that, I invite the noble Lord to withdraw the amendment.

--- Later in debate ---

[Lord Falconer of Thoroton]

I have nothing to add.

[Lord Keen of Elie]

My Lords, I thank the noble Lord for what I understand are, again, probing amendments. As I perhaps explained, the Crown dependencies and overseas territories have a constitutional relationship with the United Kingdom whereby the United Kingdom is responsible for their foreign relations. This means that the Crown dependencies and overseas territories do not generally themselves join international agreements, including agreements in the area of private international law, which we are concerned with here. Instead, an agreement that applies in the United Kingdom can usually be extended to apply also in a Crown dependency or overseas territory. We work with those Crown dependencies and overseas territories to determine where and when they would wish to have a private international law agreement apply between them and other contracting parties. The scope of the United Kingdom’s ratification of that agreement is then extended to them. This means that multilateral agreements extended to the Crown dependencies and overseas territories apply only between those jurisdictions on the one hand and the other contracting parties on the other, but not between the Crown dependencies and overseas territories and the UK. To apply the agreement with the UK, there needs to be a separate mirroring arrangement, as it is sometimes termed. I referred to that in responding to earlier amendments.

The general power within Clause 2(3) allows the United Kingdom to maintain and develop a private international law framework with the Crown dependencies and overseas territories as well as with foreign partners. That is the intent here.

The noble Lord asked about consultation. There was consultation, not with the governors of the Crown dependencies and overseas territories, but with each attorney-general and their officials. My understanding is that they were entirely content with the way in which these provisions are extended to the benefit of the Crown dependencies and overseas territories.

The noble Lord raised the question of entrustment. It does not directly arise in this context, but entrustment is where the United Kingdom essentially consents to a Crown dependency, for example, entering into an agreement at the level of international law. That can sometimes happen where, for example, a Crown dependency wants a reciprocal agreement with a foreign partner.

The behaviour of the overseas territories is monitored by the Foreign and Commonwealth Office and there are instances in which, for the purposes of good governance, the United Kingdom will intervene in the affairs of an overseas territory. The noble Lord himself gave an example in respect of the Turks and Caicos Islands where that has been done.

As regards the choice of court or arbitration that the noble Lord referred to, in so far as I understand his point, I would respond that it is up to parties to a private contract to determine how their disputes, if any, will be resolved. For that purpose, the parties can choose a law or legal system to apply to their private contract and the jurisdiction in which their disputes will be resolved. That is an issue that arises only in the context of their private contract and in the context of what we are dealing with here, which is private international law. At the level of private international law, we are concerned with the way in which other jurisdictions respect that law, respect the choice of jurisdiction and, indeed, then respect the judgment of that jurisdiction when it comes to enforcement.

I hope that answers the points raised by the noble Lord. I thank him for the probing amendments, but I invite him to withdraw Amendment 14.

Terrorist Offenders (Restriction of Early Release) Bill

Debate between Lord Falconer of Thoroton and Lord Keen of Elie

2nd reading & 2nd reading (Hansard) & 2nd reading (Hansard): House of Lords
Monday 24th February 2020 Lords Chamber

[Lord Keen of Elie]

I misheard the noble Lord, and I apologise to him for that. I had understood him to refer to the issue of the sentence being retrospectively changed, as reflected in the observations of the noble and learned Lord, Lord Falconer, and the noble Lord, Lord Marks.

The point I wish to make has already been touched upon by the noble Lord, Lord Pannick. The position is simply this. There is an established line of case law up to the Criminal Division of the Court of Appeal that a court should pass a sentence that is commensurate to the offending behaviour in relation to the offence committed, without any consideration of any possible early release. In other words, early release under licence and the various ramifications of that are an irrelevant consideration to the courts on sentencing. That is reflected by the Court of Appeal decisions in Round in 2009 and Bright in 2008. So it is not a case of retrospective change to sentence. Somebody is sentenced to a period of, say, four years. There is then a statutory provision whereby the Secretary of State comes under a duty to release at a certain point in the sentence. The current position with regard to the type of sentence we are dealing with is release at the halfway stage. In response to an observation by the noble and learned Lord, Lord Judge, I say that the Secretary of State has a duty to obtemper that statutory obligation and, I suspect, would be faced with a writ of habeas corpus if he did not. There is a clear duty there, and there is no way around that.

The true retrospective nature of this legislation, insofar as it is at all retrospective, comes from the application of the provisions with regard to the Parole Board, with which everyone appears to be in agreement. Under the present statute, a prisoner is entitled to automatic release at the halfway stage. We now propose—and everyone appears to agree—that this should not be the case and that they should have to satisfy the requirements of the Parole Board before they are released. So a prisoner who anticipated automatic release will no longer be able to do so, because the provision with regard to the Parole Board is that it must be satisfied that it is no longer necessary for the protection of the public that the prisoner should be confined. That is the retrospective element in all this.

The noble Lord, Lord Pannick, then asked: why apply that at the two-thirds point in the sentence rather than at the halfway point? There are a number of reasons behind the provision in the Bill extending the period of imprisonment from half to two-thirds of the sentence. The most immediate was reflected in an observation from noble Lords that this Bill gave a breathing space. That is certainly required at present, because we face a situation in which we are placing a quite considerable obligation on the Parole Board to bring forward expertise and examination of individual prisoners, in circumstances in which a number of these offenders are due for release at the halfway point in a matter of days. In the interim period, therefore, it is necessary that we are able to accommodate that very real risk.

In addition, it brings the sentence into a position that is consistent with other sentences, where the period is two-thirds. We suggest that it allows for a further period of incapacitation of terrorist offenders—it may seem limited in some instances, but not in all—and confers a degree of public confidence on those concerned about recent behaviour and recent events.

[Lord Falconer of Thoroton]

I make it clear that I have no problem with imposing the Parole Board. Equally, Equally, I understand the point that the noble Lord, Lord Faulks, made and that the Minister is making, that there will be quite a lot to deal with. But I understand that the effect of the Bill will be that you cannot be released automatically until the Parole Board has said you can be, so there will not be a problem on the basis of the draft of the Bill. The bit I question the Minister on—I find it completely incomprehensible—is that he appears to be saying that moving it from half to two-thirds is part of the administration of the sentence and therefore not caught by retrospectivity, but that removing release from automaticity is part of the sentence. I just do not follow that.