Duchy of Cornwall Bill [HL]

Lord Marks of Henley-on-Thames Excerpts

2nd reading (Hansard): House of Lords
Friday 26th October 2018 Lords Chamber

[Lord Marks of Henley-on-Thames (LD)]

My Lords, I thank the noble Lord, Lord Berkeley, for introducing the Bill and for the comprehensive way in which he opened the debate. We welcome the Bill. As the noble Lord, Lord Wakeham, and the noble Lord, Lord Adonis, suggested, I do not suppose that the noble Lord, Lord Berkeley, expects his Bill to sail on to the statute book, but that does not stop us discussing its principles in a Second Reading debate on a Private Member’s Bill.

I handled for my party the Succession to the Crown Act 2013, which provided principally that succession to the Crown should not depend on gender, as well as removing the unjustified and discriminatory disqualification from the succession by marriage to a Roman Catholic, a disqualification that dated from the late 17th century and the conflict about the departure from the Throne of James II and the accession of William and Mary. The Succession to the Crown Act was passed by the legislatures of all the Queen’s realms in a complicated exercise of diplomatic co-ordination when the Duchess of Cambridge was expecting a child. It was passed in time for the newborn, whichever gender it happened to be, to take a confirmed place in the line of succession and not be liable to future demotion if the child was a girl. As it happened, he was a boy, and Prince George duly became third in line to the Throne, but the Act has had the effect that Princess Charlotte comes next, notwithstanding the birth of a younger brother, and that is as it should be.

Clause 1 of the Bill of the noble Lord, Lord Berkeley, replicates that Act in its removal of gender preference for the title of the Duke of Cornwall. The present rule, embodied in the 1377 charter, is an arbitrary and discriminatory preference, which is a hangover from the 14th century, and it is high time for its removal.

One might say the same about the rest of the hereditary peerage—that daughters should inherit on the same footing as sons—and that the present arrangements in most letters patent are also discriminatory and quite unacceptable in a contemporary context. The noble Lord, Lord Lucas, certainly takes that view and introduced a Bill to reform the system in the 2012-13 Session, although the Bill never proceeded. I, and no doubt many others, can see why the Government may not see this kind of reform as meriting a high place on their legislative agenda, because it affects only a limited number of families and usually highly privileged ones at that. But the question does arise as to how far and for how long we should tolerate this kind of blatantly unfair discrimination, in spite of its limited application. The noble Lord, Lord Berkeley, is quite right to challenge it in this Bill in the context of the Duchy of Cornwall.

Clause 2 would remove Crown immunity from suit for the Duchy of Cornwall and we agree that there is no reason for Crown immunity to extend to the Duchy. The only proper purpose of Crown immunity is to give immunity from suit to the sovereign and to organs of government in certain tightly defined circumstances which Parliament has sanctioned, as set out in the Crown Proceedings Act 1947. As the noble Lord said, the Duchy is effectively a body in the private sector and there is no earthly reason why Crown immunity from suit should extend to the Duchy of Cornwall.

Again, Clause 3 would remove the anomalous exemption from tax for the Duchy, which was the subject of much of the speech of the noble Lord, Lord Adonis. Under the present arrangements, tax for the Prince of Wales is an entirely voluntary matter, as is tax for the Duchy estate, and the estate is immune from income tax, corporation tax and CGT. The Prince of Wales does not pay voluntary tax on any increase in asset values as the Duchy is a royal body and the Duchy is the owner of the assets. I do not regard that as a desirable or defensible state of affairs. Many would say that the right to the very substantial income of the Duchy is good fortune enough without its being compounded by the Prince’s only paying tax on an entirely voluntary basis. The income of the Duchy is now well in excess of £20 million a year. The Prince pays voluntary income tax of about £4.9 million, but only on his income after meeting the expenditure on royal duties, and no CGT, as I said. Those are substantial sums, and substantial sums of tax forgone are involved.

If the Duchy’s income is to go to maintain the Prince of Wales and his household, then so be it. But why there should also be a tax break for the heir to the Throne, I entirely fail to see. The Royal Family has done great things to pull itself into the 21st century. Not being required to pay tax on income in the same way as other citizens do is likely to feed controversy and questioning and bring the institution into disrepute. Nor is there any reason why the Duchy should be immune from claims by its leaseholders under the Leasehold Reform Act when they want to secure the freeholds or long leases on their homes—a reform that has been broadly welcomed and has worked well over many years for private landlords..

Closer to home for me, Clause 7 would remove access from the Duchy to the Treasury Solicitor. I see no reason why the Duchy should have access to the publicly funded legal services of the Treasury Solicitor— effectively, the Government’s legal department. We have had enough trouble with legal aid cuts for the vulnerable. Why we should be providing extensive legal aid to the Duchy of Cornwall escapes me.

For the monarchy to thrive, it needs to be contemporary, understood and trusted by the public. Maintaining discriminatory rules of succession, unfair immunities from tax, an out-of-date exemption from the Leasehold Reform Act and publicly funded legal services for the heir to the Throne is not a great way forward, and we need to start changing the rules.

Prisons: Rehabilitation

Lord Marks of Henley-on-Thames Excerpts

Thursday 6th September 2018 Lords Chamber

[Lord Marks of Henley-on-Thames (LD)]

My Lords, we are all grateful to the noble Lord, Lord Bird, for introducing this debate, which has demonstrated near unanimity on what the problems are with our penal system and on the outcomes that we need to achieve. Yet the ever-worsening crisis—to describe it in this way is more understatement than exaggeration—is not being addressed in practical terms. In prisons we have unacceptable and increasing levels of violence, assaults by prisoners on other prisoners, violence between prisoners and staff, homicides, suicides and self-harm. This was the central point made by the noble Lord, Lord Bird, and it was emphasised by the noble Lord, Lord Harris of Haringey, with all his experience.

Overcrowding—cell and prison capacities being exceeded, or, which is just as bad, being massaged upwards—continues to rise. Understaffing, as my noble friend Lord Dholakia said, leads to prisoners being locked in their cells for completely unacceptable periods of time—the noble Baroness, Lady Healy, made the same point. Purposeful activities—work, education and training—suffer, often because there are insufficient staff to organise movement around prisons, leading to lack of employability and more reoffending.

The facilities for addressing mental health issues and drug addiction are still poor. Insufficient attention is paid, still, to issues that particularly affect women, including those with children. Peter Clarke summarised it, in words that have been quoted in this debate, at the beginning of his third annual report:

“The year 2017-18 was a dramatic period in which HM Inspectorate of Prisons documented some of the most disturbing prison conditions we have ever seen—conditions which have no place in an advanced nation in the 21st century”.


I agree with the emphasis that the noble Baroness, Lady Bottomley, put on the importance of our inspectorates.

However, we are not tackling overcrowding. Prisons Minister Rory Stewart must move from expressed desire to genuine determination to cut the number of short sentences and to combat sentence inflation—something considered in July by the Justice Committee—even in the face of sections of the media and public opinion. We must release IPP prisoners kept in custody well beyond their tariff dates. We need to look at greater use of early release and home detention curfews.

Young offender institutions suffer from all the problems of adult prisons, compounded by a shortage of educational and training opportunities, as highlighted in Charlie Taylor’s review. Children with little schooling, often those who have been in care, suffer worst. Charlie Taylor’s review put education first. He summarised it as treating young offenders,

“as children first and offenders second”,

in a system,

“in which they are held to account for their offending, but with an understanding that the most effective way to achieve change will often be by improving their education, their health, their welfare, and by helping them to draw on their own strengths and resources”.

These were all points well made by the noble Baroness, Lady Hollins. Will the Minister report on progress in implementing Charlie Taylor’s recommendations?

In the probation service, there is complete demoralisation at the failure of the community rehabilitation companies—the CRC. While the remaining National Probation Service, though underresourced, performs its function moderately well, the CRCs are failing miserably. Underresourcing, redundancies, inadequate contract management and unhappy staff have led to a failure to deliver on the Government’s transforming rehabilitation programme. Through-the-gate supervision of prisoners on release has almost entirely failed. As Dame Glenys Stacey put it:

“In those cases we inspected, only a handful of individuals had received any real help with housing, jobs or an addiction, let alone training or else getting back into education, or managing debt”.


She said:

“CRCs are too often doing little more than signposting and form filling”.

We have failed to increase the involvement of the voluntary sector and what we must now do, I suggest, is to increase co-ordination between the prison and probation services, but not by renationalising all CRCs. It is outcomes that count, not ownership. Prison services, the youth justice system, all the probation services and the voluntary sector must work far more closely together, as the noble Baroness, Lady Jones, argued. All noble Lords have concentrated on rehabilitation, with the right reverend Prelate the Bishop of Gloucester expressing that in terms of hope. Rehabilitation saves money, as the noble Lord, Lord Bird, said, but much more importantly it turns around lives.

Brexit: European Arrest Warrant (European Union Committee)

Lord Marks of Henley-on-Thames Excerpts

Thursday 8th February 2018 Lords Chamber

[Lord Marks of Henley-on-Thames (LD)]

My Lords, I join others in thanking the noble Lord, Lord Jay, for his part in this excellent report and for the thoughtful and persuasive way in which he opened this debate.

I agree with the Prime Minister when, as Home Secretary in 2014, she said, in advocating our opting back in to the European arrest warrant, that our losing the EAW would turn the UK into,

“a honeypot for all of Europe’s criminals on the run from justice”.

The noble Lord, Lord Hannay, pointed out her support for the EAW system. When Naz Shah MP put the Prime Minister’s words to Nick Hurd, the Policing Minister, during his evidence to the Home Affairs Committee on 23 January, the Minister replied:

“The European Arrest Warrant is an incredibly important tool in the box. The data is quite striking. Prior to the implementation of the European Arrest Warrant in 2004, fewer than 60 individuals a year were extradited from the UK to any country, not just the EU. Between 2004 and 2016-17, EAW has enabled the UK to surrender over 10,000 individuals accused or convicted of a criminal offence to other member states. This has included those accused or convicted of murder, child sexual offences and terrorism offences. During that period, the EAW has been used to surrender over 1,400 individuals to the UK to face justice, so it is a very important tool”.


He went on to say that,

“we want to preserve that capability as close to the existing status quo as possible”.

Those words echo those of Amber Rudd, quoted in the introduction to the EU Committee’s report. The noble Baroness, Lady Kennedy, also spoke of the effectiveness of the warrant in combating serious crime across Europe, and all speakers have recognised the importance of reciprocity.

Day after day in this House we hear Ministers answering questions on Brexit topics by saying that the Government’s aim is to maintain our relationship with the EU as closely as possible in its existing form. Those of us who believe that the whole project of leaving the EU is a disastrous mistake have every right to ask, “Then why are we leaving?”.

All speakers in this debate agree that it is crucial for this country to continue to reap the benefits of the European arrest warrant system. The noble and learned Lord, Lord Brown, stressed the remarkable superiority of the warrant system over other extradition systems as it has developed to mitigate the flaws that it had. However, the report highlights the serious difficulties in our retaining the system if we do not accept the jurisdiction of the CJEU. I understand that to be the central point made by the noble Lord, Lord Jay, in opening.

Why have the Government made breaking with the CJEU such an unyielding red line if they want to achieve a deep and special partnership with the EU? I see it more as an unbending rod for the Government’s back than a defensible red line. If the Government genuinely want this partnership, they must accept that in areas of European co-operation, whether on citizens’ rights, trade standards, the environment or cross-border security co-operation, European law will continue to hold sway, and its oversight is now and will remain with the CJEU or something very close to it.

In the legal and security areas, the arguments surrounding the European arrest warrant apply equally across the field. They apply to Europol, the EU agency for law enforcement, which is critical to the fight against serious organised crime, people trafficking, cybercrime and terrorism. It is an agency to which the United Kingdom has contributed greatly, not least through its energetic British director. The UK is probably the single largest user of Europol in the EU.

The arguments apply also to data sharing under the Schengen Information System—the vast database to which EU member states have access under the judicial oversight of the CJEU. They apply to Eurojust, the EU agency that promotes co-ordination and co-operation between EU investigating and prosecuting authorities, and to which the DPP has made it clear that she attaches great importance. My noble friend Lady Ludford stressed the DPP’s complete commitment to the European arrest warrant as well. They apply to protection for citizens under the data protection directive. In civil matters they apply to resolving choice of law issues, currently achieved by the Rome regulations; to dealing with issues of jurisdiction, recognition and enforcement in civil and commercial matters covered by the Brussels I regulation; and to the recognition and enforcement of judgments in family law, covered by the Brussels II regulation. In all these areas Ministers claim to want maximum co-operation, yet they insist on rejecting CJEU jurisdiction.

The noble Lord, Lord Jay, pointed out the difficulties already arising with the European arrest warrant, particularly on the island of Ireland. The noble Earl, Lord Kinnoull, made the same point. I would point out in that respect to the noble and learned Lord, Lord Brown of Eaton-under-Heywood, that it was the likely absence of the protection of the Charter of Fundamental Rights that caused the problem with Ireland. I urge him to consider that in the context of his opposition to it.

The Government’s response to this report is typical. It explicitly recognises the need for a mechanism for dispute resolution. Although I cannot manage the eloquence of the language of the noble Lord, Lord O’Neill, on the subject of the Government’s response, I will say that their proposals are uncertain and muddled: uncertain, because all they can say is that they are committed to a constructive dialogue; muddled, because they imply that post Brexit our law can diverge from EU law in all areas, which betrays a fundamental failure to appreciate that for international co-operation to work one law must govern the behaviour of both parties and that law must be binding.

In European arrest warrant cases individuals have a direct entitlement to have their rights under EU law protected by national courts. As the noble Baroness, Lady Kennedy, and my noble friend Lady Ludford pointed out, these are cases involving individual liberty. If the system is to retain the confidence of citizens and governments, there must be judicial oversight at a supranational level, which in this context means the EU level, and it must be binding on all parties. Why should the EU 27 be expected to accept a non-binding alternative arbitration system for the oversight of arrest warrants when they already have a functioning, efficient and binding system in place?

Much is said on the other side about the affront to UK sovereignty involved in accepting the direct application of EU law and the jurisdiction of the CJEU. Yet we accept the UN charter and the jurisdiction of the international court in The Hague, and we accept the jurisdiction of the European Court of Human Rights under the European Convention of Human Rights. Why not the CJEU? If Brexit is to proceed on the basis of continuing partnership, then on all areas covered by the partnership we need to reach agreement on a system of judicial oversight that is both binding and workable.

Although I do not necessarily share this view, one can see the argument that, if we leave the EU, the fact that the CJEU will no longer have a British judge and a British advocate-general would make the court appear one-sided. Well then, will the Minister explain why the Government do not seek to secure that areas covered by new partnership issues arising between the UK and the EU will be justiciable by a parallel court? Call it what you like, but effectively it would be a division of the CJEU but with a British judge and a British advocate-general. Has such an obvious arrangement even been considered by the Government?

This whole issue has been blown out of all proportion by the soundbites of ideologues. The UK has been a successful litigant before the European court. Research for the Institute for Government published in December demonstrated that the UK has the highest success rate before the court of any EU member state. These negotiations are difficult enough without red lines that are illogical, unnecessary and indefensible. If this whole sad enterprise is going to proceed, and if the Government are serious about partnership, then in this, as in all areas, will they please stop posturing and make proposals to our partners that have some chance of being agreed and are realistic and workable?