Northern Ireland Protocol Bill

Lord Judge Excerpts

Committee stage
Monday 7th November 2022 Lords Chamber

[Lord Judge (CB)]

My Lords, I just wonder what Clause 18 is supposed to mean. Does it really mean that the Minister of the Crown may do whatever he likes? Yes, it does; that was what we were discussing on Wednesday, when noble Lords and the Government listened to me. I had a dream over the weekend that the Minister today is going to get up and say, “Lord Judge, you were entirely right on Wednesday. We have changed our minds: we are going to put this Bill into proper shape”.

[Baroness McIntosh of Pickering (Con)]

My Lords, I take this opportunity to ask my noble friend the Minister what discussions there have been with the devolved Assemblies and Parliaments as to the process that will be used if these regulations are brought forward.

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This brings us back to the prospect of removing entire clauses from the Bill on Report, should we even be in a position to proceed at the appropriate time. So, these amendments in a sense restate some of the arguments we had at earlier stages and I look forward to the Minister’s response.

[Lord Judge (CB)]

My Lords, I keep hearing the words “democratic accountability” and then I look at the Bill and I cannot find any. We have listened as Clauses 4 to 21 have been debated in this Chamber. If we add those clauses together, we have a lamentable lack of democratic accountability. I expect it will be said, “Ah well, as always, the House of Commons can reject any regulations” and so on; and, “We have a long history of how there are 16 different ways in which the regulation-making powers can be exercised.” To that, I will say: but they have not exercised that power since 1979. This is not democratic accountability; this is quite extraordinary legislation, passing huge amounts of power into the hands of the Executive. Others have spoken. Clause 18 creates tertiary power—guidance—which is not quite a regulation of the sort we are talking about but can create matters that require compelling attention from those who have to abide by the guidance.

Let me just look at Clause 22(1), because it makes what has gone so far rather trivial. It states:

“Regulations under this Act may make any provision that could be made by an Act of Parliament (including provision modifying this Act).”


I then add the words “and any regulations made under it”, because that follows. What it means is that the Bill, having been successfully enacted, could be dismantled by the Government two weeks later. It could be dismantled by a Government three years from now or by a Government 10 years from now. It could restore the very thing that the Bill says it is trying to get rid of—all in the hands of a Minister making regulations under the Act. That is not Henry VIII. I have lost count; I have tried to add it up in different ways. Is it Henry VIII plus Henry VIII for Clauses 4 and 5? That comes to about Clause 79. It cannot be. Is it Henry LXIV, because it is Henry VIII squared? This is an extraordinary power when the Bill is already riddled with Henry VIII powers. I am not jesting about this. The Bill provides for its restoration at any time that the Government of the day choose, or any part of it, or some of it along with other legislation. That is not how we should legislate. Should we not be ashamed of ourselves?

Parliament gave Henry VIII the power to bastardise his first and second children, to say that he was the Pope in England and that he was God’s messenger on earth, to decide the succession, and to say that the monasteries should all come down—the widest act of criminal damage this country has ever seen. Then he produced a Bill giving him the power, by proclamations, to create new laws. I shall not read it all out. What did the successor to that Parliament do? It said no. There was a battle, but in the end that power had this proviso to it put in by the Commons:

“nor that, by any proclamation … any acts, common laws (standing at this present time in strength and force) nor yet any lawful or laudable customs of this realm … shall be infringed, broken or subverted, and specially all those acts standing this hour in force which have been made in the King’s Highness’s time”.

He was not allowed to modify an Act of Parliament by proclamation.

We do not have proclamations anymore; we have statutory instruments. We have regulation-making powers that amount to a modern form of proclamation. We must not agree to clauses of this kind in any Bill. Those that we have agreed to—shame on us. We must not agree to this one. We must insist on the determination and, in its case, the courage shown by the 1539 Parliament not to give the King the powers he wanted. We must not give the Government the power they want in this clause.

[Lord Pannick (CB)]

My Lords, as we go through this Committee, we are discussing clauses that confound constitutional principle in ever more astonishing ways. I entirely agree with what was just said by the noble and learned Lord, Lord Judge. It is quite extraordinary that we should be asked to approve a clause that would confer power on a Minister to make by regulations

“any provision … including provision modifying this Act”.

The Committee has heard a number of powerful speeches over its four days explaining why it is wasting parliamentary time in analysing the Bill when it is a sideshow to the need to resolve the dispute with the EU. Whatever view you take about that issue, what is a manifest waste of time is for this Committee, and for Parliament on Report, at Third Reading and in the House of Commons on ping-pong if it comes to that, to debate, amend and approve legislation after lengthy debate, only for Ministers to have the power to say, “I don’t care about that. Parliament might have agreed it, but I’m going to set it aside. I’m going to substitute something else.” What is the point of parliamentary debate if that is what a Minister can do?

Indeed, such is the breadth of this provision that a Minister would have a power to substitute in the Bill something that he or she approves of that has been specifically rejected by Parliament. Parliament might have passed an amendment against the views of the Government, yet, under this clause, as the noble and learned Lord, Lord Judge, said, two weeks or three years later the Minister can say, “That may be what Parliament has done, but I’m going to insert something different”. As the noble and learned Lord said, we really have to take a stand. This cannot be right in principle and it cannot be acceptable to Parliament.

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[Lord Ahmad of Wimbledon (Con)]

My Lords, I was merely emphasising. I did refer to earlier clauses as well when I was giving one specific example in this particular group. But I hear what the noble Lord says, and, of course, I recognise that there are issues, particularly in this clause, about the powers that are being proposed. In coming on to that particular point, in relation to the concerns raised by the breadth of powers, each individual power that is being proposed in the Bill is being constrained by its purpose. None of them is a “do anything” power, and Clause 22(1) does not make them so: it merely ensures they can fully fulfil their purposes.

[Lord Judge (CB)]

The clause says that regulations under this Act may make

“any provision that could be made by an Act of Parliament (including provisions modifying this Act.)”

The words are completely expressed.

[Lord Ahmad of Wimbledon (Con)]

As I said, we are seeking to put a power in the Bill, and I will provide clarification on that. Each individual power that we are seeking to take in this respect is being constrained by its purpose—but, if I may, on that point, I will write to the noble Lord once I have talked to officials specifically about this aspect of the debate.

Northern Ireland Protocol Bill

Lord Judge Excerpts

Committee stage
Wednesday 2nd November 2022 Lords Chamber

[The Senior Deputy Speaker (Lord Gardiner of Kimble)]

My Lords, I must inform the House that, if Amendment 16 is agreed to, I will not be able to call Amendments 17, 18 or 19 by reason of pre-emption.

[Lord Judge (CB)]

My Lords, I shall be very brief and will say nothing about the breadth of the power being sought by Clause 12. I will read Clause 12(3):

“A Minister of the Crown may, by regulations, make any provision which the Minister considers appropriate”.


We all know what that means: a Minister will be empowered to create any regulations as he or she thinks fit. That is not objective: as he or she, sitting down, thinks fit. It is purely subjective. If we allow this piece of legislation to go through, we are saying to the Minister, “At whatever time it may suit you, take a blank sheet of paper and either write with a pen or type on your laptop whatever you think you want”. That will then be put before the Commons and the Lords, and, as they have not rejected anything for an eternity in real terms, it will become law.

Is that really how we think that power should be given to Ministers anywhere within the UK? It surely is not. There are other ways of making regulations. Good heavens, no Minister needs a lesson from me in how to create regulations; we are bombarded with them all time. But I do ask the House: is this really how we expect to be governed? The Minister can do what the Minister likes. The clause uses a different and longer phrase—“considers appropriate”—but it really means no more than whatever he or she wishes. It is not good enough.

[Viscount Hailsham (Con)]

My Lords, I simply express my very strong support for what the noble and learned Lord has said: there is absolutely no limitation on the power conferred on the Minister to make

“any provision which the Minister considers appropriate”.

There is no test here of necessity or a requirement that the Minister should be satisfied that there are reasonable grounds for thinking that the regulation is necessary. In any event, the regulation is both unamendable—as all regulations are—and subject to the negative procedure, which means in effect that it will never be discussed. So it is thoroughly bad. I have no doubt that it is for that reason that the Joint Committee recommended that this particular power should be removed from the Bill, and if I am given the chance to vote for that view, I shall do so.

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[Lord Purvis of Tweed]

My Lords, Amendment 20 is, in many ways, connected and therefore I need not be as long about this

Let me quote from the Delegated Powers and Regulatory Reform Committee on Clause 13:

“Parliament has no knowledge of the Government’s plans but is meanwhile expected to rubber stamp all the regulation-making arrangements.”


That surely is not a means by which we make good legislation. The committee is highlighting Clause 13(1), which states that

“Any provision of … the EU withdrawal agreement, is excluded provision so far as it confers jurisdiction on the European Court in relation to … the EU withdrawal agreement”.


As highlighted by the DPRRC and others, it is a stretch to say that the invocation of the defence of necessity would permit the extending to all parts of the exclusion of the European court. I should be grateful if the Minister could state in clear terms why the Government’s legal position, which does not clarify this, states so.

There is a policy concern, which was aired so well by Stephen Farry MP when this was considered in Committee in the Commons. If, as seems to be the Government’s position, there will still be Northern Ireland direct interaction with the EU single market—with north-south trade as a major part of the Northern Ireland economy—without the European court having application, it puts at risk what that genuine market access is for Northern Ireland. He made that point in clear terms and I need not add to it, because the case is very strong. The policy paper The UK’s Solution, when it highlighted the problems, did not suggest the removal of the court altogether either. So is this a red line in the talks for the Government?

Secondly, concern has been raised about human rights consideration. The Northern Ireland Human Rights Commission has highlighted the fact that the breadth of the powers in

“Clause 13 of the Bill would restrict the CJEU’s interpretive role in disputes relevant to Protocol Article 2”.

We discussed on Monday the need for that to be dynamic in relation to the obligations under Article 2, and its potential removal will create concern. I hope that the Minister is able to be clear, in response to the Northern Ireland Human Rights Commission, that there would be no diminution of rights.

Given that the Government have not made the case, and given the concerns about the impact on the operation of the single market and Northern Ireland’s position within that, as well as the human rights concern, I beg to move.

[Lord Judge (CB)]

My Lords, I shall not repeat myself, but I shall draw attention to the fact that, in the debate on the previous group, the Minister kept telling us that the word “appropriate” had been used in circumstances like these, as if that was something to be greeted with joy. Each of those pieces of legislation was a dreadful abdication by Parliament of its responsibilities. Even if the Minister is right—I am not challenging his veracity or judgment; let us assume he is right—that so far none of them has caused any problems, it would be nice to know that and I take it from the Minister that none has, but that does not mean that they may not cause huge problems in the future, or that when we have a change of Government, which we may have, that will not cause problems when their Ministers decide that they are going to apply these regulations. I really find that argument “It has been done before; therefore it is a precedent”—and I am a lawyer—but I do not think all precedents are wise and that one is a particularly unwise one.

I know I am trespassing back on to the previous debate, but I have another concern. During his reply, the Minister offered a number of reasons why this regulatory-making power was needed. Fine, but why are they not then put in the legislation, so that we can have a look at what these regulatory powers, at any rate at the moment, are designed to address? For the purposes of this group, if there are matters which the Government have in mind which they think can be served by a regulatory-making power, fine, but let us see what the primary legislation should contain.

Women’s Rights to Reproductive Healthcare: United States

Lord Judge Excerpts

Tuesday 28th June 2022 Lords Chamber

[Lord Ahmad of Wimbledon (Con)]

My Lords, I recognise what my noble friend has said. Any democratic country—any open society—gives everyone the right to express their view. What demonstrates the strength of our own country is that, while you might not respect a particular view, you respect and defend the right of someone to hold an opinion contrary to your own. We are a diverse, rich country in all sorts of aspects, including our faith diversity. We also recognise that America is a shining light and the closest ally of the United Kingdom. There is much that we share on strengthening democracy and human rights around the world; that will remain a strong sense in our focus globally as well.

[Lord Judge (CB)]

Is not the lesson for this country from that decision that there should be absolutely no political involvement in the appointment of senior judges?

[Noble Lords]

Hear, hear!

Nazanin Zaghari-Ratcliffe

Lord Judge Excerpts

Monday 15th November 2021 Lords Chamber

[Lord Goldsmith of Richmond Park (Con)]

My Lords, no one disputes that Iran’s treatment of Nazanin and others in similar circumstances is inhumane and cruel, exceeds any normal boundaries of behaviour by a state and is completely unacceptable, but I cannot add more to what my colleague the noble Lord, Lord Ahmad, said in answer to the same question just a few weeks ago.

[Lord Judge (CB)]

Do we owe money to Iran? If we do, why has it not been paid?

Official Development Assistance

Lord Judge Excerpts

Thursday 10th June 2021 Lords Chamber

[Lord Ahmad of Wimbledon (Con)]

My Lords, the noble Lord should recognise—I am sure he does—that, as I have said repeatedly, we have been faced with the worst economic contraction for almost 300 years and a budget deficit of close to £400 billion. It is therefore right that we take time to understand fully what the long-term impact of our financial position will be. As the Chief Secretary to the Treasury made clear this week, we have had to look at a range of fiscal measures, including our situation on debt and borrowing. Last year we borrowed over £300 billion and this year we are forecast to borrow a further £234 billion. We will provide details as we move forward. However, I am sure that, if the noble Lord reflects, he will agree that we are facing very challenging times. Notwithstanding that, we are still among the largest providers when it comes to development support across the globe.

[Lord Judge (CB)]

My Lords, I draw attention to the fact that I have a daughter who works in overseas development, but my question is not directed to the merits or demerits of the government proposal. Following up the question of the noble Lord, Lord Purvis of Tweed, how is it consistent with the sovereignty of Parliament, which is, after all, the pre-eminent constitutional principle that all of us in this Chamber embrace, for an unequivocal statutory obligation on the Executive to be postponed without further reference to Parliament, except through a mere Ministerial Statement? At least with Henry VIII provisions we have the notional fig leaf of parliamentary consent, but this is Executive reliance on Section 3 of the Act and it removes that fig leaf. Is not the sight rather unpleasant?

Global Human Rights Sanctions Regulations 2020

Lord Judge Excerpts

Wednesday 29th July 2020 Lords Chamber

[Lord Judge (CB) [V]]

My Lords, I support these regulations but voice two reservations relating to the rule of law which might arise on future occasions. First, in his Statement, the Minister in the other place said that, in practice, people designated would be able to request a review from the Minister and be able to challenge the decision in court. Those words were repeated here today by the Minister. Let me make it clear that in the context of due process, this is not simply a matter of practice; it is not simply a matter of the Executive’s good will in deciding to offer their benevolences to individuals. Due process is a matter of entitlement and of principle. I invite the Minister to confirm at the end of the debate that the ordinary principles of judicial review will apply, in relation to both a review and a challenge in court.

The other point arises from the creation of criminal offences by statutory instrument, which under Regulation 32(1)(d) carry a sentence of seven years’ imprisonment, no less. This system of creating criminal offences by statutory instrument is extremely suspect. Such offences need to be created by primary legislation. Many of us, on all sides, during the passage of the primary legislation, raised our concerns about these issues. They remain, but the Act has been passed.

I suggest that if these times had been different, and if these particular provisions were not so heartening, obviously justified and very long overdue, my welcome might have been far less enthusiastic. I suggest to the Minister that he should not try to do this too often.