Dissolution and Calling of Parliament Bill

Lord Judge Excerpts

Report stage
Wednesday 9th February 2022 Lords Chamber

Moved by

[Lord Judge]

1: Clause 2, page 1, line 9, at end insert—
“(1A) The powers referred to in subsection (1) shall not be exercised unless the House of Commons passes a motion in the form set out in subsection (1B).(1B) The form of motion for the purposes of subsection (1A) is “that this present Parliament will be dissolved.””

[Lord Judge (CB)]

My Lords, in the recent Committee debate I undertook to reread Hansard because I particularly wanted to address the views expressed by those who disagreed with this amendment. I have done so. I continue to respect those views but I do not share them. I am going to urge the House that understandable reasons should give way to compelling ones.

The arguments focused largely on the merits or demerits of the amendment, but in a sense what we were discussing does not really matter because, as I hope I made clear in my reply to the debate, it is obviously not for this House to decide the issue; it is for the other place to do so. It is a decision for the elected Chamber, and we are not elected.

The purpose of the amendment is simple: the objective is to offer the other place an opportunity to reflect again on this hugely important constitutional Bill and see whether it may have second thoughts. If the second thoughts lead the other place to the same view, so be it: that will be its view, and we must accept the view of the elected Chamber. However, I intend to abide by whatever decision is made by it after what I hope may be a fuller consideration of the merits or demerits of the arguments both ways—much fuller than it was, given the somewhat peremptory way in which this entire Bill was dealt with.

We have become habituated—have we not?—to the steady, apparently unstoppable accumulation of power in No. 10 Downing Street, and we have done so while simultaneously the authority and weight of Parliament itself, and the House of Commons in particular, have been diminishing. It is astonishing to think that we are now proposing to resurrect the medieval concept of the prerogative, the concept on which the divine right of kings was based. King James, and King Charles just across the road, will be laughing as they turn in their graves. The king lost his head in part because he kept dissolving Parliament.

I wonder whether any noble Lords heard Oliver Cromwell thinking of stepping off his plinth outside; I thought I heard a movement or two, but he has gone back. Cromwell, having been a great parliamentarian, decided that Parliament was not doing what he wanted, so Parliament was “purged”—an interesting thought and an interesting use of words. At that stage in our history, Parliament had obtained, through the Long Parliament, the right to dissolve Parliament. Cromwell did not dissolve it because he did not have the power to do so; he simply purged it. What are we doing resurrecting an ancient power in the 21st century?

--- Later in debate ---

[Lord Judge (CB)]

My Lords, we have probably talked too long already, but I find it wonderful to think that my arguments have been described as “beguiling”—that was my old friend, the noble and learned Lord, Lord Brown of Eaton-under-Heywood. He has reminded me of the days—our boy days—when we used to go round the county courts. He would always do it, every time: he would get up and say to the judge, “Mr Judge has made a very powerful argument,” or “a very remarkable piece of advocacy” or whatever it might be, and then he would punch me straight between the eyes and say, “But he is wrong”. Beguiling arguments have their strengths. They are beguiling because they are soundly based.

And then, I have just heard the noble Lord the Minister create a whole series of fences. It is like Becher’s Brook every time as we go around the course. The point of this amendment is for the issue to go to the other place and for the other place to consider it and decide whether those hurdles are ones that can be overcome or not—to decide which way it should go.

[Lord True (Con)]

Does the noble and learned Lord set at naught the recommendation of the Joint Committee of your Lordships and the other place which considered this proposition, rejected it, and cited it as contrary to the public interest?

[Lord Judge (CB)]

There was a majority in favour of the proposition that the noble Lord the Minister has put forward. I happen to think that the minority was right. I am inviting us to let the House of Commons have another look and make its own mind up. They will take into account the decisions, recommendations and all the papers that they are given, I hope, and come to their own conclusion.

What I did find slightly startling about the noble Lord the Minister’s response was the idea that when a Prime Minister seeks a general election, that is an act of deep humility. It is not. It is an act by an individual in power who is seeking the best possible way of retaining power. Elections are not sought in the public interest; they are sought for the advantage of the party in government. Humility has nothing whatever to do with it.

Finally, I want to raise a serious point. I find the idea—it has been espoused by a number of noble Lords—that we should stop any risk of the elected House acting as zombies. What an insult that is being paid to the elected Chamber by this House. Of course, the House will get things wrong—every House, every institution, gets things wrong. But the idea that we are going to suddenly be frozen in a situation which is incapable of movement and the Government will be paralysed and things will not work and the electricity will be turned off, all because the Commons has decided to reject a Prime Minister’s desire for a dissolution is, with great respect, bunkum. I do not propose to withdraw this amendment. I seek the opinion of the House.

Dissolution and Calling of Parliament Bill

Lord Judge Excerpts

Committee stage
Tuesday 25th January 2022 Lords Chamber

The Faulks administrative law review makes much the same point. Conventions are based on trust and executive restraint. Where trust is weakened, statutory authority has to replace convention. I therefore move my amendment, which links Prorogation to Dissolution, because that is part of making sure that we share an understanding of some of these basic constitutional principles.

[Lord Judge (CB)]

My Lords, the amendment in my name and those of the noble Baroness, Lady Smith of Basildon, and the noble Lords, Lord Newby and Lord Lansley, is about the constitutional location of power today and for the next 80 to 100 years. It is not about where, historically speaking, power in Parliament used to rest. It is about now, at the beginning of this century, after at least half a century in which the powers of the Prime Minister have been accreting at an alarming and chilling rate. I will not go through the endless efforts I have made to draw your Lordships’ attention to that fact, but it is a fact.

I was not able to speak at Second Reading but the issue of troublesome prerogative powers relating to Dissolution and Prorogation formed the basis of my contribution to the debate on the Queen’s Speech. I know that I am not taking the Minister by surprise because he and I have had many rather interesting discussions about the constitutional issues. It is important that I add this too: when I made that speech, the present Prime Minister was riding high in the polls. This is nothing to do with the fact that he has troubles abounding at the moment—Prime Ministers always run into trouble at some time. It is not about the present Prime Minister; it is about the person, whoever that might be, who holds this office not being given further power, as the Bill proposes.

We should not have a fixed-term Parliament. We all agree on that. There should be a maximum period. Five years is what is proposed and it makes perfect sense. What did not make sense last time was the proposal that a two-thirds majority was needed in the Commons for that term to come to an end. It did not make sense because of something that should have been absolutely obvious to everybody. I am sorry to say that to those who advocate for it. Just about every important piece of legislation enacted in Parliament has required a bare majority. Nobody set about trying to have two-thirds majorities; a bare majority would do. The Great Reform Act had a majority of two. The Habeas Corpus Act, where all our freedoms were determined, passed because the noble Lord acting as a Teller for one side counted a big fat Peer as 10 and so it was carried. That is what our liberties have turned on. My point is that a two-thirds majority is an aberration.

The question is: how do we replace the legislation? We have had the beginning of a fascinating discussion: do the current proposals revive the prerogative power? Fun—the noble Lord, Lord Norton, can get his students to write endless essays, all getting Firsts if they agree with him, on this subject. But this is the point: whatever the theory might be, the reality is that the power of Dissolution will now be based on statute—this statute, which might be changed. Prerogative power does not get elevated out of thin air; it is founded on the statute.

In answer to one or two of the matters raised in the noble Lord’s Amendment 1, whether the theory is that the Prime Minister gives Her Majesty—the monarch, rather—advice or a request, it seems to me, and here I agree with the noble Lord, Lord Grocott, absolutely impossible to understand that the monarch of the day would be prepared to enter into tempestuous political controversy, threatening the very existence of the monarchy, if the prime ministerial advice or request was rejected. It seems inconceivable. It might have been possible when the Lascelles letter was written to the Times in 1950. It was never put to the test; it never arose. In my view, it is inconceivable. If my view is right, here in the 21st century, the current legislative proposal in this Bill is that the decision whether Parliament should be dissolved would be vested exclusively in the Prime Minister of the day. Today, in a modern democracy, an uncurbed power to have Parliament dissolved—it is rather astonishing to think about it.

Of course, as was said in an earlier debate, it is perfectly true that the Prime Minister, in making his or her decision, has to be mindful of the possible adverse reaction of the electorate if they choose to think that his or her idea of having an election is a bad one. Of course it is, but whether the public do or not, general elections are about the next five years. The election arrives and a decision is made on the health service, the education system, the Armed Forces. It is not just about this single decision made by the Prime Minister. So I go this far with the argument against me: okay, the Prime Minister would take into account possible adverse reactions from the electorate if the electorate do not want an election. But this is not a principle; it is simply a matter of prime ministerial judgment. It is not constitutional control; it is the Prime Minister making a purely political decision: “Where does the balance of advantage to me and my party lie?”

It will also be suggested—it has been suggested to me and I have read it pretty frequently—that recent events in the Commons in the context of Brexit underline the need for this prime ministerial power. The Brexit debates were hardly a model of clarity but let us remember what they reflected: a huge parliamentary and, indeed, national divide, splitting parliamentary parties themselves, in the context of the constitutional aberration of a referendum, with the Dissolution process itself governed by the requirement for a two-thirds majority rather than a simple majority, which, as I said a moment ago, altered parliamentary processes and, indeed, strategies. In constitutional terms, the Brexit shambles demonstrated the folly of a two-thirds majority being superimposed on the result of a referendum that was not welcome to a majority in the House of Commons. That is not a sufficient justification for reviving or creating—it does not matter what you call it—this unrestricted power over the length of the life of the Parliament for the Prime Minister of the day.

These arguments overlook something so obvious that it is not merely in danger of being overlooked, it is being overlooked. I am not going to let it be overlooked. The Dissolution of Parliament eradicates the choice made by millions of citizens when they cast their votes at the previous election and chose who would represent them in the House of Commons. That sounds over- dramatic, but I invite your Lordships to think about it, because that is what it means.

To ensure continuing democratic involvement, to ensure that we live in a democracy and to enable us all to reflect on where power should lie, of course there has to be a finite time for each Parliament. That is a necessity in a democracy. But when the Dissolution is not a consequence of the effluxion of time but is simply based on a unilateral prime ministerial decision, the votes at the earlier general election are wiped out. The earlier democratic decision is revoked. One vote trumps millions of votes. To me, in a democracy there is a certain level of absurdity about such a principle. If this Bill passes unamended, the effect of those votes will be revoked by—and I am choosing a word used recently by the Delegated Legislation Committee—diktat. If you do not like “diktat”, call it decree, call it command, call it whim, call it fancy. I do not mind what you call it. but it is one person’s decision—unconstrained and unrestricted—by an assessment of political advantage.

Surely in the 21st century the exercise of power to change and to ditch the democratic vote should at least be subject to a modicum of control. The amendment from the noble Lord, Lord Norton, offered the possible control of the monarch and, for the reasons I have given, I respectfully suggest that that is not sufficient. Surely we should rest some responsibility on the House of Commons of the day—the elected representatives. That is what the Commons is there to do: to control and to keep an eye on the Executive and to keep a particular eye on the accreting power of the Prime Minister.

This is something that we cannot just accept on the basis that a prerogative power is being revived. This is going to be a statute.

[Baroness Taylor of Bolton (Lab)]

My Lords, I listened carefully to the noble Lord, Lord True, and he is right that this is an important Bill. I very much welcome the repeal of the Fixed-term Parliaments Act—I was never a fan and I am pleased to see it go.

I hesitate to disagree on any occasion with the noble and learned Lord, Lord Judge, but I am not sure that I follow his logic entirely. Maybe that is because of the political experience that some of us have seen and felt when Prime Ministers have not always got these things right and have not always chosen the right minute to have an election. My noble friends Lord Grocott and Lord Rooker will well remember 1978 when Jim Callaghan did not have an election at a time when people thought it might be advantageous and subsequently lost a few months later. Gordon Brown did not have an election in 2009 and subsequently lost a year later.

The noble and learned Lord, Lord Judge, is right that this is about the constitutional location of power, but it is also about the role of the Executive and the legislature. Yes, the legislature is there to hold the Government to account—a very important function. If I was in the House of Commons at the moment, having been given a vote by the Fixed-term Parliaments Act I think I would have wanted to hold on to that vote to say whether an election should take place. I thought that that might have been one of the compromises that was reached during the consideration of this Bill by the Government and when the Joint Committee looked at it. I am surprised that the Commons gave up so easily the power to have a say and to sanction the calling of a general election.

It would not necessarily have been a simple thing to do. The noble and learned Lord, Lord Judge, mentioned the two-thirds majority that was clearly just part of the political fix of the original deal between the Conservatives and the Liberals after the 2010 election, and that is a non-starter. However, I wonder whether he would say that the majority had to be 50% plus one of those voting on the issue or 50% of the whole House plus one. What would the Motion be and what would the role of the Speaker be in terms of a tied vote? We have to consider all those arrangements. I do not think it is a simple issue although, had I been in the Commons when this Bill was going through, I would have been very reluctant to give any say whatever in terms of when an election should take place.

--- Later in debate ---

Tabled by

[Lord Judge]

3: Clause 2, page 1, line 9, at end insert—
“(1A) The powers referred to in subsection (1) must not be exercised unless the House of Commons passes a motion in the form set out in subsection (1B).(1B) The form of motion for the purposes of subsection (1A) is “that this present Parliament will be dissolved.””

[Lord Judge (CB)]

My Lords, it is rather fun to be clothed in the costume of a revolutionary who is about to tear down the constitution. I do not think anyone has ever thought of me in those terms, and my family will be absolutely fascinated by it.

I have found this an interesting debate on all sides. It is perfectly obvious that I shall have to read the debate, which I shall. It is also perfectly clear that there is nothing further that I can say in private meetings, in the Chamber or anywhere else that will enable me to persuade the Minister to change his mind or his position.

I remind noble Lords that we are simply asking that the House of Commons should have a chance to look again at the proposal before us so that it can make up its mind. Its Members had a debate, but when you read it you see that—this sounds discourteous, and I suppose in a way it is—the issue was hardly addressed. All that I am asking in this amendment is that they should be given a chance to think about it. I would be perfectly happy for them to reject it; that would be their decision. For today’s purposes, I shall withdraw the amendment, but I shall reflect on what should happen at the next stage.

Amendment 3 not moved.

Legislation: Skeleton Bills and Delegated Powers

Lord Judge Excerpts

Thursday 6th January 2022 Lords Chamber

[Lord Judge (CB)]

I do not feel like following any of those speakers; they have said everything that I want to say. It is awfully tempting to sit down, but I should just mention one or two things.

The noble Baroness, Lady Cavendish, referred to something that I said when I was Lord Chief Justice. It was a political speech—nothing to do with party politics—and I addressed the issue of Henry VIII clauses. That was more than a decade ago. The moral of the story is that judges should not interfere in the political processes—because no one took the slightest bit of notice of what I had to say. Indeed, the response was the opposite: the departments invented a new button on their computers that said “Henry VIII” on it, and every piece of legislation since I spoke has had it pressed and Henry VIII drawn into it. So I have given the Red Bull treatment to Henry VIII and the corresponding treatment for somnolence—I do not know what the right pill is for that—so we just go on producing delegated legislation. It is more than 10 years since I spoke, and has the House of Commons rejected a single piece of delegated legislation? No. I am sure that every piece of delegated legislation that we have had has been sublimely wise, but the House of Commons has not rejected a piece of delegated legislation since 1979—1979, for heaven’s sake—when thousands and thousands of pages, in small print, are sent out to us every year, telling us all how we should live.

I go back to the time when Henry VIII was first trying to get these powers. It is an interesting story. This Parliament had given him the power to decide that he was the Pope—or the head of the Church in England—who would succeed him, that he could bring down the monasteries and that he could do anything that he liked. But the one thing that it drew the line at is something that we have been pathetic at. It said: “No, we will not give you the power to amend our statutes.” Here we are doing it 400 years later.

It is sometimes said that Thomas Cromwell fell because he introduced Anne of Cleves into Henry VIII’s bed and she could not quite arouse his—whatever you call it—interest. I must say, nobody ever asked her what she thought about him. But that is not the whole story. When I retire, I will launch a piece of research which will demonstrate that Thomas Cromwell fell because he did not produce for the king the power that the king wanted: absolute power. If he had had time—his head came off too quickly—he would have thought of skeleton Bills, guidance, protocols, and so on. However, he did not have time. However, if we turn to Henry VIII for inspiration and to Thomas Cromwell for further inspiration, we are running up a very strange path.

I have three suggestions. First, let us never ever pass legislation like Clauses 55 and 56 of the current police Bill, which enable the Secretary of State to define what the Bill means by “serious disruption” after it has been enacted. We should reject any and every Henry VIII clause until the Minister identifies the specific areas it is intended to address and then we should limit the Henry VIII power to a power to amend specific clauses in the instant Bill, not any statutory provision in any Bill past and to come. Finally, on statutory instruments, we should at least have the power to have a process to say, “We agree with 99 but number 100 we do not want.”

Government: Leadership Training

Lord Judge Excerpts

Thursday 16th September 2021 Lords Chamber

[Lord Judge (CB)]

My Lords, it is not merely because the noble and learned Lord, Lord Mackay, recommended me for appointment to the High Court Bench in 1988 that I say that it is a privilege to be following him—noble Lords will discover why in a moment. It is also a privilege to be following the noble Baroness, Lady Taylor, whose chairmanship of the Constitution Committee when I was on it was absolutely marvellous.

We all know that we do not know it all. Look at us: very modest, very humble, and we recognise our own limitations. But there is a very strange thing about humanity: we must recognise also a tendency, when people suggest that we do not quite know everything—particularly on something we think we do know about—to slightly resent it. If a group of us is being asked to examine whether we know it all, we think, “Well, who are these people questioning whether we know very much?” We do not like criticism, and I say that because it was the noble and learned Lord, Lord Mackay, who was such a stalwart supporter of training for judges.

You may not believe this, but when I was a junior judge and went into court to sit as a judge—I had had quite a lot of years of experience prosecuting, defending, and seeing other judges, some good, some not so good—I just sat as a judge, trying two policemen on corruption judges. It was very small corruption: just taking bribes to stop people being prosecuted for speeding. But I had not had a day’s training. More importantly, very significantly impressive people with wonderful brains who worked in the commercial world were sent out on circuit to try murder and rape trials who had never spent a day in a criminal court.

When it was suggested—I was a very strong supporter of this, rather ahead of my time, I regret to say—that there should be judicial training, the judges largely—we are talking about the 1970s—thought that this was a bit of an insult. They thought it was not appropriate. I remember them saying to me, “This is an interference with judicial independence; the Government’s trying to tell us what to do.” This is where I particularly draw attention to the privilege of following the noble and learned Lord, Lord Mackay, because he gave the most astonishing support to the idea that we had got to go through a judicial training process. I think, as all his career has shown, that he put principle ahead of any fleeting unpopularity.

Listen to my own experiences when I was running part of it. There was the day a black civil servant came to tell us, when we were setting up a body to look into and train us in diversity and prejudice, that he had been stopped 38 times driving a good middle-class car in 37 years. He then asked us, “And how many of you have been stopped by the police driving your car?” There were about 40 of us there, and not one of us had been.

The other remarkable moment was with that extraordinarily brave young woman who was the victim in the “vicarage rape case”, which all noble Lords will remember. I asked her, and she agreed, to come and talk to judges about how she had steeled herself to give evidence that would not give the perpetrator a moment’s satisfaction that she was still upset by what he had done to her—which led the judge to say that there was no sign of great trauma. We learned from all sorts of people. It is not possible for a judge now to sit on the Bench and to try sex cases, family cases—any sorts of cases—without having been trained.

Junior Ministers are rather like I was in my first trial. You are a Minister, you follow more senior Ministers, you move up the ladder, you are picking up all the habits that your Ministers have—some good, hopefully, and some not so good, inevitably. By the time you are a Secretary of State, you are ultimately, as the noble Lord, Lord Norton, pointed out, responsible for the legislation. If I were in charge of training—and I did do it for some time for judges—I would train Ministers in constitutionality. It is a funny word, that, but it embodies everything that the noble Lord, Lord Norton, and the noble Baroness, Lady Taylor, were talking about.

Since 2005 we have not had a proper Lord Chancellor. The old Lord Chancellor would be sitting at the Cabinet table, occupying a different function from the other Members of the Cabinet, there to tell them, “This won’t do, this is not the rule of law”—or whatever it might be. Now Mr Raab has become the Lord Chancellor, and everybody regards it as a demotion. As for the Minister for the constitution—this is not at all a personal criticism of Chloe Smith—she is not in the Cabinet. The Minister for the constitution is not a member of the Cabinet. This is why I suggest constitutionality.

I would have a day’s course with the chairs of our three committees—the Constitution Committee, delegated legislation committee and the secondary legislation committee—going down to talk to Ministers. No doubt they would take them copies of their reports. Perhaps they could be reinforced by the opportunity of having their legal advisers there, too—not the whole lot of them, just those three people. If the Government of the day said, “Ah, well, they’re not in our party,” then have the previous one. That way we would alert Ministers to the reality of what is going on; they are not paying sufficient attention to our constitution.

I will just add this. This is not a particular party I am arguing against. They all do it. Power does tend to corrupt.

Overseas Development Assistance

Lord Judge Excerpts

Wednesday 14th July 2021 Lords Chamber

[Lord Agnew of Oulton (Con)]

Just to restate the point, Section 2 of the 2015 Act envisages circumstances in which the 0.7% target is not met due to

“economic circumstances and, in particular, any substantial change in gross national income”

and

“fiscal circumstances and, in particular, the likely impact of meeting the target on taxation, public spending and public borrowing”.

We last met those requirements in 2018-19.

[Lord Judge (CB)]

Please can the answer to this question not be that the law has not been broken? We had that last week and it was not an answer to my question. Is it consistent with the sovereignty of Parliament that an obligation or duty imposed on the Government by primary legislation can be expunged or suspended by Ministerial Statement?

[Lord Agnew of Oulton (Con)]

My Lords, at the risk of being tedious, we have not in any way expunged the Act. We have suspended it in line with the section that I cited in the previous answer.

House of Lords Appointments Commission

Lord Judge Excerpts

Tuesday 5th January 2021 Lords Chamber

[Lord True (Con)]

My Lords, I repeat that the House of Lords needs refreshing from time to time; that has been the position of all Governments. I completely disagree with the noble Lord’s analysis of the situation.

[Lord Judge (CB) [V]]

My Lords, as the Government have no plans to change the system for appointment to this House, can the Minister kindly clarify the principled justification—if any—for permitting the appointment of Members of the sovereign Parliament to continue to be vested in the unconstrained power of the Prime Minister of the day?

[Lord True (Con)]

My Lords, the Prime Minister of the day is the monarch’s principal adviser on the exercise of patronage, which is part of the royal prerogative.

European Union (Future Relationship) Bill

Lord Judge Excerpts

3rd reading & 2nd reading & Committee negatived & 2nd reading (Hansard) & 2nd reading (Hansard): House of Lords & 3rd reading (Hansard) & 3rd reading (Hansard): House of Lords & Committee negatived (Hansard) & Committee negatived (Hansard): House of Lords
Wednesday 30th December 2020 Lords Chamber

[Lord Judge (CB) [V]]

We can—indeed, as it is the only opportunity we shall have, we must—discuss whether the future relationship agreement represents what has been described as a hard or soft, or, nowadays, a thin, scrawny or perhaps plump, deal, but I fear the single question for decision by us today is whether, however we choose to describe it or to deride it, and with whatever level of reservation or hesitation, we accept this deal or not.

Personally, I breathed the sigh of relief described by the noble Lord, Lord Newby, when I heard the news that a deal had eventually been negotiated. I share the views already expressed that there are problems and disappointments with it, which will no doubt be ventilated this afternoon, as they were in the other place by the leader of the Opposition this morning. But I respectfully suggest that the discussions that we have today about how and when the agreement was eventually signed should not overlook that there were two parties to the negotiations. It was the duty of the EU negotiators to do their best to protect the interests of the EU from the consequences of the unwanted departure of one of its members, and to do so in a way which kept 27 sovereign countries content with what was to be agreed. It was not open to us to require a negotiated settlement in which we dictated the terms of our departure; the EU was never going to make easy concessions and our negotiating hand was not strong enough to obtain them. One has to be careful not to be unfair to those responsible for the negotiations.

As I indicated, I welcome with relief what I believe to be a workable deal, the most important feature of which is the restoration of parliamentary sovereignty. In years to come, we must make it clear that from now on—that is to say, from 1 January 2021—the Prime Minister has no sovereignty, the Executive have no sovereignty and there is no coronation after a successful election campaign culminating in a large majority for one party or the other. I am stating the obvious, but today’s legislation exemplifies the unwanted tendency—if I may adapt the words of John Dunning in 1780—of the Executive to command, and to expect to command, the legislative process, rather than to defer to it, which has increased, is increasing and should be diminished.

That is really all I have time to say—there is much more that I would like to say. However, there is one positive aspect of the Bill, which is that we parliamentarians in both Houses must wake up to the fact that there should now be proper, true parliamentary control of the legislative process. But that is up to us.

United Kingdom Internal Market Bill

Lord Judge Excerpts

Consideration of Commons amendments
Monday 14th December 2020 Lords Chamber

[Lord True (Con)]

My Lords, I am introducing a new government amendment, containing new Clause 43A, as well as moving Motions C, D and E, which will rectify the oddities left by the removal of Clauses 44, 45 and 47. Now that we have an agreement in principle with the European Union through the joint committee, as we discussed in the last round of these discussions in your Lordships’ House, the safety net clauses are no longer required.

The EU’s declaration on Article 10 of the Northern Ireland protocol clarifies that subsidies are within scope of the state aid rules in the protocol only where there is a “genuine and direct link” to Northern Ireland and a “real and foreseeable” impact on trade between Northern Ireland and the European Union. The House has been concerned, as has the other place, about the risk of reach-back; the EU’s clarification addresses this. The concern was that a company in Great Britain with only a peripheral link to commercial operations in Northern Ireland could be caught inadvertently by the tests within the protocol’s text, which was neither acceptable nor what the protocol had envisaged.

However, public authorities giving subsidies and the beneficiaries still need guidance regarding Article 10 of the protocol. Therefore, new Clause 43A stipulates:

“The Secretary of State must publish guidance on the practical application of Article 10”.


The clause requires the Secretary of State’s guidance to reflect any relevant decision or recommendation of the joint committee or any declaration made by either party of which the other party takes note. The Secretary of State may update the guidance, for example, to reflect developments in either the joint committee or relevant EU law. Public authorities will be required to have regard to this guidance, helping to ensure a consistent and uniform application of Article 10. This approach is fully in accordance with the United Kingdom Government’s commitments under the Northern Ireland protocol and international and domestic law. The new clause is an important part of putting the protocol into effect and for the agreement in principle with the European Union to function.

I know that noble Lords have welcomed progress on this part of the Bill, and I beg to move.

[Lord Judge (CB) [V]]

My Lords, I speak to Clause 43A. Consistent with the Minister’s undertaking last week, this new clause is not tainted with the admitted unlawfulness that marked Clauses 44, 45 and 47. By way of a footnote, in view of the Minister’s observation, I will say that those clauses should never have been there in the first place. As the Minister has explained, this clause is concerned with the issuing of guidance by the Secretary of State in relation to Article 10 of the Northern Ireland protocol, and any subsequent implementation of that guidance. Either process must pay full attention to the decisions and recommendations of the joint committee, itself established under Article 164 of the withdrawal agreement. Non-compliance, if it were to arise, would, if necessary, be justiciable.

There is nothing further that I can say in relation to this clause. It seems to be a very sensible solution to a difficult problem.

[Lord Newby (LD)]

My Lords, this is the last knockings on Part 5 of the Bill. It has been a sad and sorry saga from beginning to end. The Government understandably drew huge opprobrium, both domestically and internationally, for being prepared to break the law. They have now withdrawn in the best way they can, but the truth is that they have done so with their tail between their legs. I am extremely pleased that we have reached this point, but sorry that the Government ever put Part 5 in the Bill in the first place and that it needed your Lordships’ House to help kick it out.

House of Lords: Relocation

Lord Judge Excerpts

Tuesday 14th July 2020 Lords Chamber

[Lord True]

My Lords, I just said that the relationship between the two Houses and parliamentary procedure will obviously be matters for consideration. Noble Lord will know that the R&R process means that the sponsor body has to consider alternative sites for Parliament. This is a matter on which there will be further announcements in due course.

[Lord Judge (CB) [V]]

My Lords, I understand the argument about the relationship between the Houses and what may happen; this is about the Executive and the relationship with each House. Do not simple courtesy and constitutional propriety oblige the Executive immediately to consult either House about any proposal to relocate that House?

[Lord True]

My Lords, I recommend courtesy by everybody, Executive or otherwise, in dealing with colleagues and with Parliament.

Census (England and Wales) Order 2020

Lord Judge Excerpts

Tuesday 12th May 2020 Lords Chamber

[Lord Judge (CB)]

My Lords, the noble and learned Lord, Lord Mackay, and I have been engaged throughout this process in trying to ensure that there is no compulsion to answer questions and that the arrangements to avoid compulsion to answer personal and private questions are secured in the legislation. The Government shared that objective, and there was a time when the noble Lord, Lord Young of Cookham, put the noble and learned Lord, Lord Mackay, and me together more or less to sort out what we wanted and to see whether we could achieve the best result.

On close analysis, as the noble and learned Lord, Lord Mackay, has said, this order taken on its own, by a combination of Articles 6(1) and 6(4), does not in fact achieve that objective. The reason that it fails to do so seems, on investigation, to be that there has been a direct lift of the orders approved for the 2001 and 2011 censuses. However, like the noble and learned Lord, Lord Mackay, I am satisfied that the statute, the draft regulations and the census form itself will mean that in law the voluntary nature of the questions and answers to the questions about personal matters is established, and those completing the form can confidently decline to answer those personal questions without fear of any penalty or proceedings.

To add a footnote, if there is a census in 2031, will those responsible please make sure that the Order in Council does not have the slight problem raised by this one? I very much hope that the noble and learned Lord, Lord Mackay of Clashfern, will be here to answer for everybody.