Northern Ireland (Executive Formation) Bill

Lord Mackay of Clashfern Excerpts

Report stage (Hansard): House of Lords
Wednesday 17th July 2019 Lords Chamber

[Lord Cormack]

My Lords, I do not think that the noble Lord, Lord Alderdice, was here on Monday, for reasons that I am sure we all understand. The message then was exactly what he says: we are moving inexorably towards direct rule.

I want to make one point to the people of Northern Ireland. They are being served incredibly well in your Lordships’ House by the noble Lord, as well as by the noble Lord, Lord Empey, and my noble friend Lord Trimble, a winner of the Nobel Peace Prize. They are active in your Lordships’ House after all the distinguished service they have given, and continue to give, in Northern Ireland. I hope that that will send a reassuring message.

I hope, above all, that their unity on the subject of devolution will spur on our colleagues from the DUP and others to redouble their efforts to get the Assembly meeting and an Executive formed. If we have to wait a little time, as the noble Lord has said, and many of us have said, time and again, can we please have the Assembly meeting, its committees meeting? That, at least, is something. I very much hope that long before any of the dates in this Bill come, we will at least see that happen.

[Lord Mackay of Clashfern (Con)]

My Lords, I strongly support the view that what we need is a devolved Government in Northern Ireland. Paying attention to items that separate us is very detrimental to making progress. On the items that the noble Lord, Lord Empey, has cited, perhaps reliable legislation is not quite so important as the others, but all the others are vital for day-to-day life in Northern Ireland. I sincerely hope that the Northern Irish parties, all elected to the Assembly with the responsibility that they have, can come together on such items to get things done. Otherwise, if we have a progress report on implementation, what is it going to tell us? That nothing has happened. That is absolutely useless.

What we really need is to do our level best to get the Executive into action. I understand that there are some matters that divide the principal parties in Northern Ireland. In fact, there are things that divide people continually, but having a Government who can carry out the essential matters referred to in the amendment of the noble Lord, Lord Empey, is an urgent matter, and the responsibility primarily lies with those who have been elected to the Assembly. I hope that the Government will do the best they can on these items, but surely the main message is that those responsible, elected by the people to serve in the Assembly, should come together and form an Executive to carry these things out.

[Lord Tunnicliffe]

My Lords, I thank the noble Lord, Lord Empey, for bringing forward these amendments. There seems to be a consensus in the House on the importance of forming an Executive as soon as possible. The noble Lord serves that cause by illustrating the serious issues that have not been processed. We are 100% behind the re-forming of the Executive, and we hope that the people and the politicians of Northern Ireland see the wisdom of that. The amendments are interesting and useful, and I hope that the Government will be saying appropriate warm words.

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[Lord Alderdice]

My Lords, given that the noble Lord, Lord Elton, has raised the question of whether people from this side of the water ought to be ruling on what happens in Northern Ireland, I will say something as somebody whose accent betrays them as coming from Northern Ireland.

First, it is absolutely clear from the voting record of Members of the Northern Ireland Assembly that attitudes on this question have changed definitively. When the Northern Ireland Assembly was meeting, it passed, in 2015, by a majority, its wish for same-sex marriage. But this was blocked by the procedural device of a petition of concern—a device not put in place for these kinds of issues, and which in fact has been so overused that it is now being questioned altogether. We must understand that, had that device not been used, we would not be debating the issue now because it would already have been passed by the Northern Ireland Assembly.

Secondly, as I listened to the debate in Committee, a number of noble Lords said—it has been repeated again this evening—that we have to be terribly careful that we are not seen as people from this side of the water imposing a view on people in Northern Ireland, particularly, the sentiment was, on nationalists and republicans; it is quite difficult for Unionists to complain terribly about it. We need to understand how much the situation in Ireland has changed, not over the last five or 20 years, but over the last two, three or four years. There have now been referenda in the Republic of Ireland on both the abortion and same-sex marriage questions. Both have been passed and the legislation has been changed. We now have a Taoiseach in the Republic of Ireland in a same-sex relationship. It is not an issue any more.

Sinn Féin’s response, after the referendum was passed, was to say that this should now happen in the north. So, while folk here might say, “We are talking about harmonisation with the rest of the United Kingdom”, Sinn Féin will say, “We are looking at harmonisation with the rest of the island”. It has been clear that that is what it wants to see. On lots of issues that the party does not agree with it will use a different analogy, but this is clearly party policy and something Sinn Féin wants to deliver. So, I think it highly unlikely that there will be the difficulty that Members suggest—particularly that it might in some way create a degree of instability for the peace process or attitudes to the Good Friday agreement. That might have been the case five, 10 or 20 years ago; I do not believe it is now, at all, because the situation in Ireland as a whole has changed dramatically. We could go into why it has changed. It has changed because the position of the Churches and religious establishments has dramatically collapsed, north and south of the border, for reasons not totally dissociated from this element of human behaviour.

Having said that, an important case has been put by the noble Lord, Lord Morrow: that, because there are anxieties, there has to be a degree of confidence that the position of those in religious organisations, whether celebrants or members, will be protected. Whatever the legalities of the permissive use of the word “may”, there is a case for ensuring that the word “must” is used to give a degree of confidence to those who are anxious about the changes that have taken place. So, I do not have any anxiety that passing this in this Parliament will somehow create a great problem in the relationship with nationalists and republicans; they were keen to vote for it in 2015 and even more so now, post-2018. But there is a case for addressing the anxieties of those who feel that a mere “may” is not a sufficient protection for their concerns; I acknowledge and support that.

[Lord Mackay of Clashfern]

My Lords, I also very much support that, as well as what the noble Lord, Lord Brennan, said. It is not so much a matter of particular legal qualification, but it is a fact that this is a very important aspect of how people feel about the legislation. As the noble Lord, Lord Brennan, said, it has worked well here, and I hope the noble Lord, Lord Hayward, will find it possible to overcome the difficulties of lawyers and do what is necessary to secure this.

I also believe it would be proper for this sort of regulation-making power to be subject to consultation in Northern Ireland. If, as we have just heard, the position is that people there wish for this, consultation will show that. It is extremely important that what is proposed has the merit of being supported by consultation in Northern Ireland itself.

[Lord McCrea of Magherafelt and Cookstown]

My Lords, I have no doubt whatever of the sincerity of the noble Lord, Lord Hayward, or of anyone else who has spoken in support of his amendment. I trust he will acknowledge that there is no lack of sincerity among those who speak on behalf of the amendment tabled by my noble friend Lord Morrow. He said that the world is changing. A number of Members of your Lordships’ House have had a religious vocation in life. When it comes to my religious belief, while we say that the world is changing, the word of God on which I base my belief says that although,

“Heaven and earth will pass away … my words will never pass away”.


It does not change with the passing of time.

The point that my noble friend Lord Morrow has brought before the House is very serious. I see the clear wording in the amendment of the noble Lord, Lord Hayward, and I come back again to the word “may”. When I was in public life, as a councillor for 37 and a half years, and as an elected representative in the other House for 25 years, a lot of emphasis was placed on putting “shall” and “must” into legislation. When “may” was put in, it was drawn to the attention of the governing party in those years that this did not create certainty. The amendment says that the Secretary of State “may” make a provision that the Secretary of State considers “appropriate”; in other words, “may” at the whim of the Secretary of State. If the Secretary of State, irrespective of who it is, decides not to give that protection, there is no protection, according to this legislation, should it be passed by your Lordships’ House this evening.

That is a very serious matter with serious implications because it gives the idea that this is discretionary, not mandatory. I therefore honestly have to say that many of my colleagues would have no confidence in the manner in which this has been presented at this time. I have listened carefully to what other Members of this House have said and I believe they acknowledge that there is a problem here. Acknowledging the problem is one thing, but if it goes into legislation and the wording is not changed, that is what we are left with. Then, of course, it goes to a court. What did Members of the other House really mean when they put down the word “may”? Did they simply leave it to the discretion of the Secretary of State or did they say that it went deeper than that?

Protecting religious freedom and religious belief in the United Kingdom is vital. We cannot lose our religious freedom, our civil and religious liberty, which was fought for and which people died for. I do not believe we should hand it away. Therefore, I make a solemn appeal to Members of your Lordships’ House. Forget about who tabled the amendment; forget that it is my noble friend Lord Morrow. Think carefully about what it means. I appeal to the House to accept that what he says is a protection that must be given to people of religious belief in Northern Ireland.

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[Baroness O’Loan]

My Lords, at this late hour, I beg to move Amendment 16A.

[Lord Mackay of Clashfern]

My Lords, I have put my name to Amendment 16 with a good deal of consideration. First, when the Bill was introduced by the Government, it was absolutely plain that its scope did not embrace either same-sex marriage or the abortion provisions. In that situation, it was also introduced as a Bill that required dealing with by a very quick procedure.

We have already dealt with same-sex marriage, which was already passed by the Assembly at Stormont, but this provision is quite different because it was dealt with by the Assembly at Stormont and voted against. Our friends from Northern Ireland—the noble Lord, Lord Alderdice, for example—have assured us that things are different. I was honoured to be a Minister in Northern Ireland for 10 years, but that was rather a long time ago. I have no doubt that things have changed quite a lot in a number of ways, including the fact that I no longer have any responsibility for it.

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[Lord Lexden]

May I ask my noble and learned friend, if a majority of Members of the Assembly are against the proposed reforms in the consultation, should that then halt the change?

[Lord Mackay of Clashfern]

I sincerely hope that that will not happen: that is the reason we have put it on the basis of the majority being in favour of the change. If we were to ask them and they were against it, that would be a real slap in the face for devolution. I have enough confidence in the Government’s consultations, and I believe the result would be so reasonable, that I expect the majority of the already elected Members of the Assembly to support this. Otherwise, it creates quite a difficult situation so far as devolution is concerned. We still have devolution—devolution to Northern Ireland is there at the present moment, it has not been withdrawn—so I think it is right to acknowledge and hope that the result of the negotiations and the regulation will be acceptable to the Members of the Northern Ireland Assembly.

[Lord Eames]

My Lords, throughout this evening, in all our debates and the important decisions that have been taken according to our custom and the way we work, there has been, like in a theatre, a backcloth to everything we have done. I believe that even at this late stage, referring to the words of the noble Baroness, Lady O’Loan, we need to put on record what has been clearly exposed tonight: that we have been rushing through matters of supreme importance to the country from which I come. Our representatives feel very deeply that the questions being asked tonight, although they cover very important issues such as abortion and same-sex marriage, were not what we were really questioning. What we were really questioning tonight was the theory of devolution, which from its infancy was geared to give us, within the United Kingdom, the local relevance and integrity that we hoped would emerge. So, in supporting the noble Baroness, Lady O’Loan, at this late stage, I suggest to the long-suffering Minister that he take back that which I refer to as the tapestry, which in fact surrounds everything we have experienced in the Chamber today. What is being asked about devolution, and how can we correct it?

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[Lord Dubs]

My Lords, I find this disappointing. I thought that the point made by the noble Lord, Lord Morrow, was the subject of the previous amendment but, never mind, we occasionally stray from one amendment to another.

Let me deal with the substance of it. If we were talking, as the noble Lord, Lord Cormack, has on previous occasions—although not tonight—about making use of Members of the Assembly to make general comments about policies in Northern Ireland, we would be in a different place. However, what we see today, under the pretext of giving the Assembly a new lease of life, is the picking out of one issue in the Bill and saying, “That is the way in which we should move forward”. If we want Members of the Assembly to be consulted, they should be consulted over the whole range of policies, rather than us picking the one policy which noble Lords do not like and saying, “We will proceed on that basis”. This is the wrong way to go about it and the principle of consulting the Assembly is negated by wishing to do it only in this partial sense.

We have already discussed the previous amendment and voted on it. I understand that feelings are strong—I respect them even if I do not agree with them—but it is quite inappropriate at this stage to deal with this sort of amendment. If Members of this House want to bring the Assembly back in some form another, let us talk about it—let us do it properly—not pick on abortion as being the pretext for doing it.

[Lord Mackay of Clashfern]

The noble Lord will of course have in mind that the Assembly voted in favour of same-sex marriage. However, that is singled out, simply because the Assembly voted against it before. Therefore, if we are to respect devolution, in view of the suggestions that things have changed completely, it should be given a chance to say so.

Courts and Tribunals (Online Procedure) Bill [HL]

Lord Mackay of Clashfern Excerpts

Report stage (Hansard): House of Lords
Monday 24th June 2019 Lords Chamber

I have a more technical point to put to the Minister, which is about the position of the Senior President of Tribunals. There are one or two places where he or she is specified as requiring concurrence but others where there is no reference. Is it the assumption that in all cases the Lord Chief Justice will—as I am sure they will—have proper regard to the position of the Senior President of Tribunals in relation to a tribunal matter, or have I failed to spot that in some instances that position is not relevant? He or she carries responsibility for the fair administration of justice in the tribunal sector and we may have to look to that sector to address any problems that arise if we have not got the definitions right.

[Lord Mackay of Clashfern (Con)]

My Lords, I took some part in previous discussions of these matters in relation to the powers of the Lord Chief Justice and the fact that he—or she, if it happens to be so—is now the head of the judiciary and the Lord Chancellor is not. I am inclined to remember—I may be wrong, and I hope that my noble and learned friend will correct me if I am—that a provision of exactly this type was made in relation to the other procedural committees that currently exist. It is a considerable time since that provision was made, and as far as I know, no trouble has emerged. That is because I would expect the Minister to exercise great care in this matter. I think I am right in saying that that was not altered in the Constitutional Reform Act, as it is called, which changed the responsibility of head of the judiciary.

I am therefore inclined to want to hear a bit more about this before we come to a decision. When so much agreement has been reached, it is a pity if we fall from agreement at the last minute, particularly if to do so would produce a very strange anomaly between the existing law relating to either of the other procedural committees and this rather more technical committee.

I do not think Clause 9 has to do with the procedure rules. It has to do with the possible obstruction to those rules which may exist in legislation already passed as part of our law. The Lord Chancellor is entitled to make regulations to amend the Acts of Parliament which interfere with the proposals being accepted as Online Procedure Rules. The rules may well have an impact on old statutory provisions—for example, those which have an impact on whether or not you can have online procedures—most of which, I imagine, did not envisage that. It may be that they can be interpreted to include considerations of that kind, but that is the nature of the problem in relation to Clause 9.

After thinking this through as best I can, I would not care for the Lord Chief Justice to have to be involved in the regulation-making aspect of this business. If regulations are required, they should be made by the person with the appropriate political responsibility. I therefore have doubts about the relevance of the rules in relation to Clause 9.

As to Clause 8, as far as I know, existing law was left unchanged by the Constitutional Reform Act. As to Clause 9, I wonder whether it is appropriate for the Lord Chief Justice to get himself involved in the nitty-gritty of political regulation.

[Lord Pannick]

The noble and learned Lord says that it is not appropriate for the Lord Chief Justice to be involved in Clause 9 matters—that he is not relevant to that—but the clause makes him involved. It gives him a role because he has to be consulted, so he is not irrelevant at all.

[Lord Mackay of Clashfern]

Exactly. He is doing exactly what I think is required. If the person who has the responsibility finds out that it is okay with the Lord Chief Justice—at least that is what I hope would happen—that person then goes on and does it. Therefore, consultation is probably the right balance at that stage. I am rather against the idea of involving the Lord Chief Justice in any form of political work. I thought the Constitutional Reform Act sought to achieve separation between the judiciary and the legislature, so that the acting judiciary were no longer part of the legislature.

[Lord Garnier (Con)]

My Lords, I do not want to spread dissension where none is required or even helpful, but I am persuaded by the first three noble—and noble and learned—Lords who have spoken in this debate. I am always persuaded by what my noble and learned friend Lord Mackay says, and we need clarification. Although I fully accept what my noble and learned friend has just said in relation to the political angle, there are provisions in Clause 9 which, although they refer to amending, revoking or repealing an Act, or a provision made under an Act, at heart deal with the mechanics of the procedure to be operated under the Online Procedure Rule.

We need to think more carefully before rushing into this. I take my noble and learned friend’s point about the possible inconsistency between this legislation, if it is to be amended, and earlier provisions. However, sometimes consistency runs in the wrong way. If the current amendment points out something that would then become inconsistent, it may be that the earlier provision also needs to be amended. In any event, I am utterly convinced that my noble and learned friend on the Front Bench will be able to persuade me that what the noble and learned Lord, Lord Judge, has said, supported as he is by the noble Lords, Lord Pannick and Lord Beith, will enable us to move forward in a spirit of complete concurrence.

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[Lord Marks of Henley-on-Thames]

My Lords, the noble and learned Lord, Lord Garnier, has reminded me that perhaps I should make the same declaration—so I do so now.

We support Amendments 22 to 24, not only for the reasons given by my noble friend Lord Beith but for those given earlier in the debate, in particular by the noble and learned Lord, Lord Judge, and the noble Lord, Lord Pannick. We regard it as very important that these rules should ensure a proper balance between the Lord Chancellor and the Lord Chief Justice: between the Executive and the legislature. I also take the two points made by the noble and learned Lord, Lord Mackay. First, there are of course equivalent provisions in the existing rules, but I agree entirely with the noble and learned Lord, Lord Garnier, who pointed out that that should not be treated as a precedent, and that if there is anything wrong with the earlier rules, perhaps they should be changed. If the 2005 Act overlooked those changes, perhaps it should not have done so, because that was the point at which the changes should have been made; that is, when the balance between the Lord Chancellor and the administration of justice changed.

I also suggest that what the noble and learned Lord, Lord Mackay, said was telling. He said that the difference between consultation and concurrence is that where you have consultation, the Lord Chancellor will go to the Lord Chief Justice and check that the change in the rules is okay with him—or that is what he hopes he would do—and then he would go back to make the rule. However, it seems to me that the need for concurrence in these rules is dependent on the Lord Chancellor finding out that the rules are okay with the Lord Chief Justice and the requirement for concurrence is to determine the position where they are not okay with the Lord Chief Justice, and that is why we have the concurrence requirement. I will give way to the noble and learned Lord.

[Lord Mackay of Clashfern]

We are talking about Clause 9, which is to do with regulations, not the making of the rules. It is the effect of existing law in relation to the rules that has to be dealt with.

Courts and Tribunals (Online Procedure) Bill [HL]

Lord Mackay of Clashfern Excerpts

Committee: 1st sitting (Hansard): House of Lords
Monday 10th June 2019 Lords Chamber

[Lord Mackay of Clashfern (Con)]

My Lords, the Government’s view was expressed at Second Reading, but Amendment 1 seems to strike at the heart of what is required. Clause 1 states,

“may authorise or require the parties”.

to use electronic means at hearings. That suggests the possibility of compulsion that would not exclude any section of the community. The amendment I find slightly difficult is Amendment 3, which states,

“may be filed by electronic means or on paper or a combination of both at the choice of the party”.

I would have thought that it should be one thing or the other. I imagine that it might cause confusion if you have an electronic bit and then a bit on paper stuck in, unless there is a clear way of showing in the electronic bit that there is another bit to follow. It is that part of the amendment that I find slightly difficult.

[The Earl of Listowel (CB)]

My Lords, I am reminded that these provisions will apply to family law procedures. Of course, it may improve the resolution of family issues, which will benefit the children involved, but there is a concern that it may make resolution more difficult and thus adversely affect the children in those families. Has the family test been applied to the Bill? I do not see that in the accompanying notes and perhaps it is not appropriate to apply the family test to it. I would be grateful if the Minister could tell me whether the family test has been applied.

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[Lord Keen of Elie]

If every time we legislated we decided to guarantee everything from A to Z, we would end up with very long Bills. The position is this: there is the ability to proceed by way of the paper process. Nothing prohibits it, there is no inhibition on that process, and there is no intention to introduce such an inhibition.

Turning to Amendments 10 and 11—

[Lord Mackay of Clashfern]

Before my noble and learned friend leaves Amendment 3, I understood him to say he would accept it, so that it would go into the Bill—although without, I hope, the choice of the combination.

[Lord Keen of Elie]

No, I do not accept the amendment. What I say is that there are existing means by which we can assure people that they can proceed by way of a digital portal or by way of a written claim, which will be scanned and taken into the online procedure process once it is up and running.

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[The Earl of Listowel]

My Lords, before that happens, I express my apologies for not being able to take part at Second Reading. I thank the Minister for asking his office to contact me and I am sorry that I delayed replying until Friday. I just want to comment on the family test. This was introduced in 2014 to be applied to Bills and involved a number of questions such as, “What kind of impact might the policy have on family formation?” and “What kind of impact might it have on stability in the family?” Although the test is not mandatory, this seems an appropriate Bill to have had it applied to, and I simply express the wish that in the future it might be applied to Bills similar to this one.

[Lord Mackay of Clashfern]

My Lords, I have some difficulty with Amendment 1 and the answer that my noble and learned friend has given. As I understand it, the amendment deals with rules. It is not judicial discretion but rules that may require the parties to participate in the hearing by means of electronic devices. Therefore, it is not a question of the judge in charge of the case making that decision; the preliminary rules will require it, and the judge will be bound by that. He will say that he is sorry to whoever comes along with a bit of paper and explain that they are not able to do that because the rules dictate that it has to be done by electronic means, so they will have to get themselves a computer.

[Lord Keen of Elie]

With respect to my noble and learned friend, my understanding of the position is that the rules will require that certain forms of action—for example, small debt action—should be commenced under the simplified Online Procedure Rules by way of the digital portal, whether you go through electronically or, as I mentioned before, by way of a paper application. However, once that process is in train, there will be a retained judicial discretion to decide whether the case should remain under the simplified online procedure or whether it would be more appropriate for it to be removed from that procedure and to proceed under the ordinary Civil Procedure Rules to an oral hearing.

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[Lord Mackay of Clashfern]

My Lords, I am supportive of Amendments 5 and 13, which outline the sort of assistance that is very much required. For Amendment 13, my preference is that the particular agency should be in some way connected with the Courts & Tribunals Service so that judicial supervision is available in respect of it. One institution that strikes me as very useful in this connection is the law centres, which were recipients of legal aid in my time. They are an economic way of providing legal assistance—much more economic than the expensive lawyers to which the noble and learned Lord, Lord Thomas, referred. Of course, it is not very good to have recourse to the inexpensive and cheap lawyers, because you are apt to spend more in the end. This is an excellent idea and requires the Minister to think quite hard about how it should be done.

This brings me to my Amendment 14, which is a slightly different matter. There are various skills available in electronic matters. You may have recourse to the internet and yet not be very sure what you have reached when you get there. There is a risk—it may not be large, but there is a risk—that if there is a court portal for certain things, you may find yourself on a website which is supposed to be the court portal but is actually run by people with a more private interest in litigation than the courts would have. I suggest Amendment 14 for consideration, which would require the Lord Chancellor to make arrangements to try to secure as far as possible that this does not happen to the rather inexpert people who may be using the internet, of which I regard myself as one.

[Lord Beith]

My Lords, the noble and learned Lord has reminded me that it is well known that the application system for the US ESTA visa waiver scheme has a number of such sites which exact charges, to which people are not liable because of the very modest charge on the official site itself. I will simply point out that HM Courts & Tribunals Service is already working on this sort of thing. There are 18 locations in which it is providing face-to-face digital support, or at least is said to be providing it. The Government have been working this up on the pilot schemes, so it seems to me another ideal opportunity, which the Minister should not neglect, to accept that the Government are actually on the right lines on this.

It would be rather more reassuring if the Bill contained some obligation to provide this kind of support. If it is not there, the Bill will be open to the charge from many people that it is creating a new system without ensuring that people can use it. The means are beginning to be developed by the Government, so I hope that they provide some statutory basis for them.

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[Lord Pannick]

My Lords, like the noble Lord, Lord Beith, I have added my name to the amendment tabled by my noble and learned friend Lord Judge to ensure that the powers which are being conferred on the Lord Chancellor can be exercised only with the concurrence of the Lord Chief Justice. My reason for doing so is essentially the same as that of the noble Lord, Lord Beith, and my noble and learned friend Lord Judge: the powers conferred by the Bill are exceptionally broad and there need to be adequate controls.

The Minister’s response before this afternoon essentially amount to, “Don’t worry—there are sufficient means through committees that will ensure that these powers are never used inappropriately, far less abused”, but as my noble and learned friend Lord Judge mentioned, the Lord Chancellor has the power to appoint the majority of the committee. The most effective means of ensuring that these powers are used only in an appropriate manner is to ensure that they may be exercised only with the concurrence of the Lord Chief Justice. As the Minister indicated during one of our earlier debates this afternoon, to amend the Bill in this way would considerably help to resolve many of the other defects in it which we have been debating.

My noble and learned friend Lord Judge made a point that is so important that it needs to be repeated: there is nothing novel about legislation requiring the concurrence of the Lord Chief Justice and the Lord Chancellor. This very Bill, at Clause 6(2), states that the Lord Chancellor’s powers to make regulations relating to the committee may be exercised only,

“with the concurrence of … the Lord Chief Justice and … the Senior President of Tribunals”.

Therefore, I suggest to the Committee that the question is not whether in principle ministerial powers should ever be constrained by a need to obtain the concurrence of the Lord Chief justice but whether that restriction is appropriate in relation to these powers. In my view, such is the breadth of the powers that we are conferring and so intimately do they address the fair administration of justice, which is after all the business of the Lord Chief Justice, that his or her agreement should be needed for their exercise.

Whether it was a blandishment or otherwise, I was very pleased earlier to hear the Minister give a commitment to consider this issue actively before Report. I very much hope that, on Report, the Minister will feel able to table an amendment or amendments to address this issue or, at the very least, to support amendments in the name of my noble and learned friend Lord Judge.

[Lord Mackay of Clashfern]

Having had the honour of holding the office of Lord Chancellor when the Lord Chancellor was the head of the judiciary, I think it is right for me to say a word or two about the present position.

It is very important to remember that our constitution recognises three arms: the legislature, the Executive and the judiciary. The judiciary is a distinct arm from the Executive. The Executive have responsibilities in relation to the judiciary, and of course the judiciary has responsibilities in relation to the people of this country in a way that is unique. If somebody else is entitled to say, without getting the ultimate agreement of the Lord Chief Justice, “We’re going to alter your procedures in the court. We’ll tell you about it and we’ll consult you but, if you don’t like it, we’ll do it all the same”, that seems to subvert the idea that the Lord Chief Justice is the head of the judiciary. The judiciary must act according to procedures and, if you alter the rules or procedures without his agreement, it seems to me that you subvert his position as the head of the judiciary as distinct from the Executive and the legislature.

Incidentally, I cannot help remarking at this stage that the judiciary has been silenced from having any part in the legislature. I regard that as an extraordinarily retrograde step. I hope that some day it will be put right by a responsible Government and that we will have the very great advantage of hearing in the House of Lords not just all past Lord Chief Justices but the present one as well.

The Lord Chief Justice’s agreement seems to me absolutely essential. Indeed, I would like to feel that he would be the initiator of changes in procedure as a result of committee recommendations. His responsibilities will be encroached upon if these procedures do not work.

My only other remark is that the reference to the Secretary of State in Clause 6(2) is probably to the Secretary of States for Wales, the language of Wales being important in this connection.

[Lord Woolf]

My Lords, I hope it will not be inappropriate, in view of the elegant and powerful speeches already made, for me to say these few words. I was a party to the concordat, the importance of which was that it established the new relationship between the arms of government, to which the noble and learned Lord, Lord Mackay, referred, until the Constitutional Reform Act 2005. I hope it will suffice to say that everything said in support of this amendment seems four-square with what was said in the concordat, indicating when the consent of the Lord Chancellor or that of the Lord Chief Justice would be required. These were heavy burdens that my successors as Lord Chief Justice had to carry in consequence of, first, the concordat and then the Constitutional Reform Act. It would be so easy to allow legislation of this sort to undermine the spirit of the concordat and the provisions of that Act by creating a precedent, which could be pointed to subsequently, indicating that the clear distinctions of relevant situations where the consent of the Lord Chief Justice should be required are not as they were previously understood to be.

Parliament: Freedom of Speech and the Rule of Law

Lord Mackay of Clashfern Excerpts

Thursday 23rd May 2019 Lords Chamber

[Lord Mackay of Clashfern (Con)]

My Lords, I put my name down to speak in this debate when it was a two-and-a-half hour debate and I had intended to go by plane to Inverness later today, at a time that would have allowed me to be here until the very end of the debate and after. Unfortunately, for some reason a strike has taken place at Inverness Airport and my flight was cancelled. I have therefore had to make alternative arrangements to fly to Edinburgh and get the train, which as your Lordships can imagine is a slightly longer procedure. I may therefore have to leave before the end of this debate. I am extremely sorry about that and I shall attend as long as I possibly can—but I gather that the Jubilee line is not perfect today, which is another difficulty.

I want to look at this issue in a general way, and do not propose to deal with a particular case. The right of free speech in Parliament is well-established and has been ever since the present arrangements of Parliament came into being. There are two difficulties with that. One is that Parliament might seek to affect a judgment in a case before the courts—the so-called rule of sub judice. On the other hand, Parliament has free speech when there is no current case and, as mentioned by the noble and learned Lord, Lord Brown, when there is a decided case about a matter. My understanding of the law on this is that that right to speak freely is to be exercised responsibly by Members of Parliament.

That is the general rule. The rule for sub judice is different because here, there is a perceived conflict on the final decision between the court—which has been set up to decide these matters as part of our constitution —and Parliament, if it has stepped in to alter the judgment or make it instead of the court. That is a special problem that, over the years, Parliament has thought needs to be dealt with. Parliament has no desire, as a corporate body, to replace the courts of law, which are independent and set up for that purpose, with severe oaths affecting the judges and so on.

That issue has been thoroughly discussed in this House. A committee, under the distinguished chairmanship of Lord Nicholls of Birkenhead, came up with a resolution that Parliament adopted, at page 60 of the volume of the Companion to the Standing Orders that we all have. That sets out what a sub judice case is and the attitude that Members of Parliament should have to it. A Member of Parliament who seeks to make a statement that may, in some way, affect a judgment or resolution still to be made, should give notice to the Lord Speaker in our House. In the House of Commons, a similar resolution was passed to give notice to the Speaker. The Lord Speaker here has the discretion to see whether the statement proposed by the Member is likely to interfere with the course of the judgment. Even if it refers to it, as long as it does not seek to interfere with the course of the judgment, it might be allowed at the Lord Speaker’s discretion. That seems an entirely satisfactory arrangement and I have no reason to seek to change it.

This is fundamental to the more general aspect referred to by the noble and learned Lord, Lord Brown. Strictly speaking, if you analyse it properly, the courts have no jurisdiction to restrict the speech of a Member in Parliament. It is not part of their jurisdiction. Therefore, if somebody in Parliament makes a statement that conflicts with a decision of the court, because the court’s jurisdiction does not extend to Parliament, it is not a breach of the order. On the other hand, it could give rise to confusion. The rule, therefore, which seems general and appropriate, is to exercise these rights responsibly, as for every other right we have. That includes consideration of the effect of what you are doing on the general position in the country for which we are responsible.

Suicide Act 1961: Prosecutions

Lord Mackay of Clashfern Excerpts

Thursday 23rd May 2019 Lords Chamber

[Lord Keen of Elie]

My Lords, I am not in a position to comment on all surveys because that may embrace ones of which we are not aware. The Government have always taken the view that this is a matter of individual conscience and for Parliament to decide, rather than one of government policy.

[Lord Mackay of Clashfern (Con)]

My Lords, noble Lords will remember that I chaired a committee of the House on this issue many years ago. Is it possible to take account of the suffering that may be experienced by vulnerable people, surrounded in their weakness by relatives whose interests may not be completely in the best interests of the vulnerable person? That is a serious risk to be taken into account. On the other hand, the Director of Public Prosecutions has issued very clear guidelines on these matters, in accordance with a requirement from what was then the Supreme Court, in his jurisdiction.

[Lord Keen of Elie]

The noble and learned Lord is entirely right. The Director of Public Prosecutions has issued very clear guidelines, which address not only the evidential test but the public interest test that arises in such a complex and difficult area. That is why we see the need for a careful and balanced approach to what is, at the end of the day, an issue of conscience.

Courts and Tribunals (Online Procedure) Bill [HL]

Lord Mackay of Clashfern Excerpts

Tuesday 14th May 2019 Lords Chamber

[Lord Mackay of Clashfern (Con)]

My Lords, I too welcome the Bill, which develops the system of assistance in the courts using modern technology. I also share the concerns already expressed. I do not propose to repeat those, because they have been expressed at least as well as I could have done. It is important that the new provisions should not in any way restrict the accessibility of justice. The figures showing how many people can use the systems we have now are interesting, and I would like to probe the detail of them. My experience, over quite a long time, has been that government numbers are not infallible, so one needs to look at that. I am sure that there is a need for care in this respect because, apart from anything else, modern systems of communication are very amenable to glitches of various kinds: we have had plenty of them over the years. It is extremely important that the public, especially people who may not be very familiar with these systems, know what is going on.

One thing that worries me somewhat is knowing for sure that you are on the correct government system. If you try to apply for a passport without too much knowledge of the system you can find yourself in some other group that wants you to pay fees for advice, something our generous Government do not require—so far—if you get on to the right site. If there is a system for paying fees online, you want to be sure that they are being paid to the courts, not to some other group who are willing to receive the money but have nothing to offer in return. I submit that the Bill itself should contain a degree of protection for people in this respect. The noble Lord, Lord Ponsonby, has already suggested that, and it is certainly worthy of consideration at the next stage.

One of the great features of our courts, over all the years that I have had anything to do with them, and for long before, is that they are very immune to any form of leakage. Even in the most important cases that are eagerly awaited by the public as a whole, you do not find a leak in advance of what the judgment is going to be. That is an extremely precious and important aspect of our justice system. One thing that we must be careful about in using an electronic system is that something of that kind could happen. I would certainly like the Bill to have some procedure for trying to ensure that that does not happen.

The next thing I want to mention is judicial discretion. I was always very conscious of the function of the listing officer in making hearings available for people. The speed of getting a hearing is sometimes vital, so the listing officers are officers of the justice system acting under the general directions of the relevant judges. It is very important that if we introduce a system based on electronics, that element does not disappear.

Next, is the Court of Protection covered by the Bill? Is it a civil proceeding, a family proceeding, or a protective proceeding? Is that different, or not?

I have had representations from the Federation of Small Businesses. Apart from anything else, it wants to be represented on the committee, and I shall come to that aspect in a minute, but it is also anxious about the fees that small businesses have to pay to ensure payment by big companies which just delay payment for as long as they can, until they are taken to court. The small business often has to pay quite a substantial portion of the total amount at stake in fees. That matter should be taken into account, and I hope that if a system of electronic communication is introduced, the fees will be reduced, but there is nothing to suggest that in terms in the Bill, although I believe that it should be looked for.

The quality of the English and United Kingdom justice system—I shall come to the distinction in a minute—is generally attributed to the quality of the judiciary. Your Lordships will be aware that there has been concern recently about the availability of quality for the judiciary. I believe that one of the reasons is that the Government, some time ago, departed from the rule that I understood: if someone is appointed to a secure position from which they cannot be taken except by resolution of both Houses of Parliament, the terms on which the person takes it on are the terms which will continue until the time that person retires, or in another way expires. That was undermined by the decision on judicial pensions, which was made some years ago. I believe that if a person is in top-flight practice at the Bar, certainly in England—it may be true in Scotland too—the amount they have to surrender to become a judge is quite substantial. Therefore, the terms on which they are taken on are of vital importance.

The quality of the judiciary is very important. I am not sure about the costs of these proposals, but I am certain that it is more important to ensure that the arrangements for the appointment of judges and the terms of service of judges are secured in such a way that top people can be invited, with a degree of confidence, to take on a judicial position.

As noble Lords know, I have not spent all my time in the practice of the law of England and it occurred to me to see what happens about Scotland. Lo and behold, Clause 14 provides that the Act will apply in Scotland to the two tribunals,

“to employment tribunals and the Employment Appeal Tribunal; otherwise, to England and Wales only”.

If that is so, how is the committee doing? Noble Lords will find that quite interesting. The procedure for committee appointments is made absolutely explicit. First:

“The Committee is to consist of one person who is a judge of the Senior Courts of England and Wales, appointed to the Committee by the Lord Chief Justice”.


So that is a responsibility for the Lord Chief Justice, but the person has to come from the judiciary or “the Senior Courts”. Noble Lords will know that the last time the constitution was changed, one of the results was that England lost its Supreme Court, so it is now from “the Senior Courts”. The important thing is that it is not from the Supreme Court; therefore the judge in question is a judge who exercises English jurisdiction.

The next person is,

“one person who is either a judge of the Senior Courts of England and Wales, a Circuit Judge or a district judge”.

These are all judicial titles from the English system and that person will be,

“appointed to the Committee by the Lord Chief Justice”.

The next person is,

“a judge of the First-tier Tribunal, a judge of the Upper Tribunal, an Employment Judge or a judge of the Employment Appeal Tribunal”—

there are judges of that type in Scotland but the sentence goes on—

“appointed by the Lord Chief Justice”,

and he does not appoint the judiciary in Scotland at all, so there is no possibility of any of these being Scottish judges.

The next person is,

“one person who is either a barrister in England and Wales, a solicitor of the Senior Courts of England and Wales or a legal executive, appointed to the Committee by the Lord Chancellor”.

It is obvious that these are all systems that apply on this side of the border. I suppose the,

“two other persons appointed to the Committee by the Lord Chancellor”,

might possibly have some relationship with Scotland, but it is by no means certain. Can my noble and learned friend explain how this is supposed to work in relation to the application of the Bill to Scotland?

I very much welcome the Bill but I think it probably requires a fair degree of consideration at later stages.

Northern Ireland (Regional Rates and Energy) (No. 2) Bill

Lord Mackay of Clashfern Excerpts

Committee: 1st sitting (Hansard): House of Lords & Report stage (Hansard): House of Lords
Tuesday 19th March 2019 Lords Chamber

[Lord Hay of Ballyore]

I was coming to that point. I know that the Minister is around this brief—he is around every brief, but this one in particular—because we have had so many meetings with him. I think my noble friend Lord McCrea is saying: yes, he can still do what needs to be done, but is there any way legally that might help us to move all this on? The issue is ensuring that whatever is done from here on is legal. Let us try to take the politics out of this, because this is too serious a situation to involve politics. Let us take the politics out of it, deal with this serious situation and try to find a way forward.

[Lord Mackay of Clashfern (Con)]

My Lords, this is undoubtedly an extremely complicated situation, but I think the principle is that when a member of the public makes an investment in a government scheme, that member of the public is entitled to trust the terms on which the scheme was launched. Therefore there can be no doubt that those who invested in the scheme, relying on the Government’s statement of what was involved, are entitled to be protected by the Government from any failure on their part to meet the terms on which the scheme was set up. That rule applies to the United Kingdom Government, but also to the Governments of the devolved Administrations. That is the basic principle which cannot be set aside by any legislation that we may pass here, although the ultimate terms of the performance obligation are a matter that we cannot determine here, for various reasons that have been given. The principle seems to me absolutely clear and sound.

[Lord Trimble (Con)]

My Lords, I think we have just heard a contribution that settles the issue to a large extent and indicates what should be done by the Government when the various reports become available. I say “the various reports” because there are two. There is the statutory inquiry conducted by Patrick Coghlin and the inquiry to be held by the Northern Ireland Affairs Select Committee. But there is no overlap here: the first looks to the past and how the scheme was framed and administered, whereas I hope the Northern Ireland Affairs Select Committee report will be more focused on the future and how one sorts out the problem beneficially for people. I am a bit worried to see the DUP nodding their heads at this stage; I will not say anything more in case I am accused of being political about the matter, which of course I am not.

The only other point I make is to thank the Government and the Chief Whip for giving us this evening to discuss this matter. It has been commented earlier, and on earlier legislation, that the way legislation is handled here during the regrettable absence of the Northern Ireland Assembly is not itself satisfactory. It was heart-warming to see the spontaneous revolt on the Floor of this House last week against the provisions to rush through this legislation in a way that would not have enabled us to discuss it in the way we have this evening. I am glad the Chief Whip listened and gave us the time, and I also thank the many noble Lords who have come in to listen to this discussion. That too is heart-warming for us.

--- Later in debate ---

[Lord Duncan of Springbank]

My Lords, I thank the noble Lord for affording me the opportunity to make some points of clarification. He is absolutely right to say that I am not in charge of that department. My comments are based on conversations earlier today with senior officials in the department. I cannot instruct them, but the discussions led to that proposal, which I believe would be a step forward for noble Lords this afternoon and this evening, on that basis—not my instruction but rather an acceptance on their part that this would be the right way to move this aspect forward. On the terms of reference, yes, these need to be very clearly understood. Financial hardship must be understood in all its manifest forms and I believe it would be incumbent on all those who are investigating and considering to ensure that all aspects of financial hardship, whatever their source or their cause, are examined in detail to ensure that there is a fair and equitable understanding of the situation. So I think the answer to that is yes.

As for what happens on 1 April if we have not made progress, it is very simple: we will not be able to move forward on this scheme, because as a number of noble Lords noted, we have grandfathered in the clause to end on 1 April. At that point, irrespective of our desire to be able to offer or afford support, without the legal underpinnings we will not be able to do so.

On state aid, there has clearly been a kerfuffle, for want of a better word, in Northern Ireland over what that rate should be, but the one thing that has been clear throughout is that the European Union Commission has had no dubiety about what it should be: it has been very clear that it should be 12%. That this has been, one might argue, misinterpreted by certain individuals in the Province is the reason we are having this wider discussion tonight and why there is a particular scandal being investigated across in Northern Ireland. None the less, we are still bound by that rule—namely, state aid at 12% return—and we cannot move away from that.

I hope those points of clarification help the noble Lord to move forward.

[Lord Mackay of Clashfern]

I should like to be absolutely certain that there is nothing in the Bill that damages any legal right that people had in Northern Ireland as a result of dependence on the action of the Northern Irish Government taken on behalf of that Government by authorised officials or Ministers. Because that is the fundamental matter: if that is not affected by the Bill, the way in which matters should be brought forward to encourage that is perfectly reasonable as a way forward. The fundamental point is that the legal rights of those who may have been damaged by their contract with the Northern Irish Government, through Minister or official, would not be touched.

[Lord Duncan of Springbank]

My noble and learned friend makes a useful point. I can happily confirm that this will not affect the legal rights or standing of any of those who have been affected by the scheme thus far.

Withdrawal Agreement: Attorney General’s legal opinion on the Joint Instrument and Unilateral Declaration

Lord Mackay of Clashfern Excerpts

Tuesday 12th March 2019 Lords Chamber

[Lord Mackay of Clashfern (Con)]

My Lords, I have had the opportunity to study the earlier and most recent legal opinions of the Attorney-General. I agree with him that as a matter of law there is a risk. But I was a mathematician before I became a lawyer. One has to find out the size of the risk. Every one of us who crossed the street today to come here had to take a risk, did we not? I came yesterday by aeroplane, which also has a risk. The question is: what is the risk? A good deal of the discussion that has just taken place is about what happens in the event of extremes, but the most important way to annihilate the risk is by reaching an agreement that supersedes the protocol altogether. If we want to see how probable an agreement is, we have only to listen to Mr Johnson, who said: “They are keen to sell us their prosecco”. The European Union is as keen to have a free trade agreement with us as we are to have one with it. In fact, its trade is greater towards us than our trade is to the EU. Therefore, the chances are high, to be judged on the facts as they are now, that there will be an agreement to supersede the protocol. That is what one has to measure. So far as I am concerned, the risk is negligible—a very unlikely event. I would feel sorry if the future of our United Kingdom, in this connection, were determined by an appreciation of a so-called risk that is practically negligible.

[Lord Davies of Stamford (Lab)]

Just to deal with “egregious” first, surely the word derives from the Latin “e grege”—

Non-Contentious Probate (Fees) Order 2018

Lord Mackay of Clashfern Excerpts

Tuesday 18th December 2018 Lords Chamber

[Lord Mackay of Clashfern (Con)]

My Lords, noble Lords will not be surprised to hear that I have been in this area before. Indeed, in my time there was a very serious question as to whether the courts service should be dealt with at all by fees. It was thought that it was a public service for which the taxpayer should pay. However, that contention has gradually passed away. The only occasion on which I was overturned in judicial review was in relation to a fee that was being charged under regulations which were signed as approved by the heads of division as well as myself. Notwithstanding all that, we did not succeed: the Divisional Court held that our fee structure was slightly defective and we immediately tried to put it right. An interesting result of that, which I must say is dear to me, about the administration of justice at the time when I had responsibility for it, was that the advocate, the barrister who defeated me and the others in the court, was nominated for silk shortly after and wrote to me to say how fair the system seemed to be.

The point as I see it is that the ordinary rule is that an amount charged as a fee which is substantially more than the cost of the service would be a tax, unless authorised by statute. That is where Section 180 comes in, as has been very clearly explained. Exactly what is done about it is a matter of discretion given to the Lord Chancellor. Here, there is a distinction between the bigger estates and the small estates justifying that kind of approach, which my noble friend Lady Browning referred to. She is a bit anxious about the middle and might prefer to see the bigger bit at the top and a smaller bit at the middle. However, I am not going to enter into that; I am just saying that it is quite impossible, in my view, to say that this is unconstitutional. The matter is one for the discretion of the Lord Chancellor and I entirely agree with the view that the courts service urgently needs as much money as it can lawfully get.

[Baroness Altmann (Con)]

My Lords, I understand the concerns expressed by noble Lords, but I also believe that these measures deserve support. I declare an interest as an executor of the estate of a relative who would need to pay these higher fees. Nobody likes the idea of paying fees but someone has to pay for the courts system and, as the noble Lord, Lord Pannick, and my noble and learned friend Lord Mackay have both explained, as have other noble and learned Lords, this is a valid use of ministerial powers.

I was critical of the previous proposals in 2017, which seemed to me excessive, but I am delighted that the Government have listened. Some 60% of estates will pay just £250—not that different from now—and 25,000 more of the poorest estates will be lifted out of probate fees altogether. More than half of all estates will pay nothing. If we pass the amendment of the noble Lord, Lord Marks, the entire proposed reforms would fall, so more of the poorest estates would pay higher fees while the largest estates would escape the higher fees. The other place did not oppose this. How will it look if this House prevents a measure that would ask higher-value estates to pay more to help lower-value estates? This money will be ring-fenced and it will help secure access to justice, which is a fundamental British value that has to be paid for.

I understand that there is concern about the level of fees. I think there are times when we have to recognise that there are issues for which cross-subsidies are relevant. In terms of fees, if we look at other areas of the economy, estate agent fees and solicitors’ fees are very often charged as a proportion of the value being transacted, if you like. An estate agent probably does not have to do a lot more work to sell a house worth £500,000 than one valued at £5 million, yet they will be paid much more in so-called fees. So I do think that there is an element of proportionality here. A £500,000 estate will pay £750. The consumer group Which? estimates that an estate worth £500,000 would face enormous legal fees. For example, the bank will charge £20,000 on average; solicitors will charge £10,000 on average; the funeral, which has to be paid for, will cost £5,000 or £10,000, perhaps more. So the idea that the maximum amount of £6,000 is being charged in order to help access to justice for domestic violence victims, mental health review tribunals or social security and child support does not seem to me to be disproportionate. I hope noble Lords will accept the idea that this is a necessary change that fulfils an important social purpose about which the Government are entirely entitled to take such decisions.

Brexit: Legal Position of Withdrawal Agreement

Lord Mackay of Clashfern Excerpts

Monday 3rd December 2018 Lords Chamber

[Lord Keen of Elie]

With respect to the noble Baroness, the then First Minister’s record on when he did and when he did not receive legal advice from the law officers was somewhat uncertain, if I can put it in those terms. I therefore do not believe that any of that sets a precedent for the present situation.

[Lord Mackay of Clashfern (Con)]

My Lords, it has been the legal position for many years that when a legal adviser advises a client, that advice is confidential. It is not for me to criticise what went on earlier in the other place, but it seems to me that it had forgotten that the Attorney-General has an absolute duty to advise the House of Commons. It could have asked him to do so and answer any questions of law that it could think of putting to him. That is the correct way to deal with such a matter. Reference has been made to what happened in the past, which I believe was very much in accordance with that.

In my view, it is impossible as a matter of law for the legal adviser to say that he will publish legal advice which has been given to someone else in accordance with an obligation of confidentiality. So far as the Government and Parliament are concerned, that is no disadvantage, because they have the advantage that the Attorney-General is the adviser of the House of Commons—as he is the adviser of this House also. He is bound, in connection with that advice, to answer any questions that may be put to him on the relevant law. I cannot see any better system than that for reconciling the two fundamental problems about the position of a legal adviser.

The Attorney-General is responsible for keeping that confidentiality unless the client thinks the advice can be disclosed without any problem, but that depends on the nature of the arrangement. So far as I am concerned, by far the best arrangement is that the Attorney-General personally comes to the House of Commons and gives his advice, answering any questions that are required. That is what happened, as far as I understand it, today. There are enough problems with this Brexit business, which we are going to discuss over three short days in due course, without trying to complicate them with material about the conventions of the UK that, as far as I know, have lasted a long time and been extremely satisfactory.

[Noble Lords]

Question!

[Lord Mackay of Clashfern]

In my view, the fact that the House of Commons is entitled to get any advice from the Attorney-General that it wishes is the answer to this question.