Permanent Secretaries: Appointment and Removal (Constitution Committee Report)

Lord Thomas of Gresford Excerpts

Thursday 9th May 2024 Grand Committee

[Lord Thomas of Gresford (LD)]

My Lords, I have the privilege of serving on the Constitution Committee under the excellent and careful chairmanship of the noble Baroness, Lady Drake, and I commend her on what she has said. It is a privilege also to follow the noble Lord, Lord Maude, with his great experience, which I am afraid I do not have.

In April 2022, Sir Matthew Rycroft, the Permanent Secretary at the Home Office, wrote a letter to the then Home Secretary requesting a ministerial direction in relation to the Government’s Rwanda policy. He said that although he was satisfied that it was regular, proper and feasible for the policy to proceed, he could not quantify its effectiveness as a deterrent to the small boats phenomenon with sufficient certainty to provide him with the necessary level of assurance over value for money. As we know, the ministerial direction was given and the policy proceeded. The responsibility for ensuing expenditure rests firmly with the Government and cannot be blamed on civil servants. I always take comfort from my Welsh family motto, which the noble Baroness, Lady Finn, will appreciate, “Ar bwy mae’r bae?”—“Who can we blame?”

That episode was an example of a Permanent Secretary doing his job. His message was no doubt unwelcome to his political mistress in a very sensitive area of government policy, but Sir Matthew is still in his job. By contrast, Sir Tom Scholar was removed from his position as Permanent Secretary in the Treasury in September 2022 by Liz Truss and Kwasi Kwarteng, not for anything that he had done but because he represented “Treasury orthodoxy”. That was a highly political decision. I do not think we realised at the time that there was a “deep state” bent on ruining the ministry of Liz Truss in her short-lived tenancy of No. 10.

That was not the only threat to stability. We had observed under Boris Johnson the rule of the spad, Dominic Cummings, who claimed that he had appointed personally the Cabinet Secretary. As for another senior civil servant in the Cabinet Office, he wrote in an email:

“I will personally handcuff her and escort her from the building. I don’t care how it is done, but that woman must be out of our hair”—


I shall leave out the embellishments that he gave to that message.

It is clear that, in recent times, successive Governments have pushed the fuzzy boundaries of our unwritten constitution. The ballot box does not convey unbridled power to election winners. The sovereignty of Parliament, important as it is as a principle, is subject, as Winston Churchill wrote in his A History of the English-Speaking Peoples, to the rule of law. That includes international law. The judiciary is independent. Another principle of our constitution over the years is an apolitical Civil Service which does not

depend on political patronage. We can see the origins of this in Samuel Pepys’s time, the 17th century. It was written of him by a contemporary that he introduced

“The principal rules and establishments in present use”


in the offices of the Admiralty, and that he demanded

“Sobriety, diligence, capacity, loyalty, and subjection to command”.


Where any of those virtues were found wanting,

“no interest or authority was capable of moving him in favour of the highest pretender”.

The Northcote-Trevelyan report of 1854 enshrines, as our colleague, the noble Lord, Lord Hennessy, put it in 1999 in his Founder’s Day address at Hawarden Castle, the home of Mr Gladstone, the

“core values of integrity, propriety, objectivity and appointment on merit, able to transfer … loyalty and expertise from one elected government to the next”.

Those are the core principles.

Recent shenanigans seem to be a threat and an affront to these principles. The essential challenge with which the Constitution Committee sought to grapple was whether in the modern era Ministers should be able to choose their own teams of civil servants, those with whom they felt comfortable. I detected some of that wish in the speech of the noble Lord, Lord Maude. In America, the spoils system of patronage in relation to the civil service was abolished in the 19th century, but since Secretaries of State are appointed directly by the President and do not have to be Members of Congress, their immediate executive staff are deemed to be outside the American civil service, and they of course change with the Administration.

The Constitution Committee in this report reaffirmed that the current recruitment principles strike the correct balance in maintaining an objective, merit-based approach to recruitment, particularly for Permanent Secretaries. Any move towards greater ministerial involvement would risk upsetting that balance. We held that it is unhelpful for Ministers to seek to personalise appointments and assert their authority because, among other things, it risks Civil Service turnover coinciding with ministerial churn. It creates a perception of politicisation of appointments and damages institutional knowledge. Political alignment should never be a factor. We also called for departure processes to be formalised to guard against the improper removal of civil servants. In particular, we urged that Ministers should be required to explain any decision to replace a senior civil servant to the Civil Service Commission, and called for more transparency about the role of the Senior Leadership Committee, which we termed an opaque body—a word that the noble Lord, Lord Maude, has taken up.

In their response, the Government said that they shared the committee’s belief that the impartiality and perceived impartiality of the Civil Service is a central tenet of our constitution. The Government also accepted that broad political alignment should not be a relevant consideration in the appointment of civil servants. The one area which was disappointing in their response was the Government’s reaction to our desire to ensure due process when senior civil servants are dismissed on conduct or performance criteria. We called for the intervention of the Civil Service Commissioner, but the Government’s view was that formal human resources processes already exist around performance management, conduct and discipline issues.

I am hopeful that the rot has been stopped. The continuance of Sir Matthew Rycroft in office, despite his warnings over the Rwanda policy, is encouraging. Ahead of us, we have the prospect of a change of Government, and we shall follow with interest how well the loyalty and expertise of the Civil Service, and particularly its Permanent Secretaries, translate into a new environment.

Protocol on Ireland/Northern Ireland: Follow-up Report (European Affairs Committee)

Lord Thomas of Gresford Excerpts

Monday 11th September 2023 Grand Committee

[Lord Thomas of Gresford (LD)]

My Lords, I, too, am privileged to sit on the sub-committee, under the wise chairmanship of the noble Lord, Lord Jay, and with the assistance of a brilliant team under Stuart Stoner, who have helped us so much.

The sub-committee has sought to cut through the hype and overselling of the Windsor Framework. The interrogation of witnesses from all stakeholders in Northern Ireland allowed us to outline in our report a realistic view of the effects to date and the perceived advantages and disadvantages that lie ahead.

I have previously expressed to the House my optimism for Northern Ireland’s future. I have said that, as a Welshman, I am envious of the unique position of Northern Ireland, with its access to both the EU market and the UK internal market. There ought to be a bright future, but I was impressed at a meeting we had in Brussels on 5 May with Brussels-based businessmen and academics, when we were told in no uncertain terms that, while the potential advantages of investment in Northern Ireland were well understood, the fear of political instability was causing investors to hesitate.

The lack of an Executive and a functioning Parliament is the outward manifestation of instability, but beneath the surface there lurks a fear of further violent unrest. Having listened recently to the debates on the Northern Ireland Troubles (Legacy and Reconciliation) Bill, I understand even more poignantly that the wounds of the past in Northern Ireland have not healed. It is ironic that all political parties and the whole of civil society in Northern Ireland came together to denounce the Bill with a unity of purpose ignored by the Westminster Government. Yet such cross-community assent is the bulwark of the Belfast agreement.

Since my first election address in Wales in 1964, I have been a firm advocate of devolution for every nation in the UK, for promoting a stable society. Heaven knows, the Welsh Parliament struggles to address the problems of an ageing population, ageing housing stock and exhausted extractive industries that once made the wages in the Rhondda the highest in the United Kingdom, but for all these difficulties, Wales does not lack stability and the Senedd is able to formulate and fund policies and plans to address them. By contrast, the political structures of the Northern Ireland settlement are unhappily on hold.

It is possible to implement certain aspects of the Windsor Framework, such as the green and red channels, the simplification of trade documents, labelling and so on without input from the Northern Ireland Assembly. The DUP, with its seven tests for any replacement of the original protocol, should be satisfied—at least in respect of their fifth, sixth and seventh tests. However, as our report demonstrates, the parts of the framework that mitigate the democratic deficit cannot be implemented while Stormont remains suspended. The changes to give a voice to Northern Ireland in the joint committee and the Joint Consultative Working Group cannot be carried forward in the absence of the Assembly. The Stormont brake cannot be triggered if the Members of the Assembly are not in place and, accordingly, changes to all modifications of EU law affecting Northern Ireland, and all new EU legislation, cannot be addressed.

In a debate following the publication of the framework, I criticised the Stormont brake as a mechanism that was so complicated as never to be used, but our subsequent visit to Brussels convinced me that, although it is highly unlikely that EU legislation would ever be negatived directly by the Stormont brake, nevertheless the process—from the presenting of a petition in the Assembly to its discussion at Stormont and subsequent proceedings in joint committees, followed by possible arbitration—would likely resolve all difficulties through negotiation, but with the voices of Northern Ireland loudly heard. That should satisfy the DUP’s fourth test of giving Northern Ireland people a say in the laws.

This leaves outstanding for that party its first test: the relevance of Article 6 of the Act of Union of 1800. Our committee did not address that issue because it has been determined already by the Supreme Court of the United Kingdom, whose jurisdiction was invoked by the DUP itself. The Supreme Court unanimously decided that

“The Acts of Union and Article VI remain in place but are modified to the extent and for the period during which the Protocol applies”.


There is no appeal possible from that.

Stability and peace, leading to prosperity, is the future within reach. It can be grasped by the people of Northern Ireland if the mechanisms that are there are used.

Elections Bill

Lord Thomas of Gresford Excerpts

Lords Hansard - Part 1 & Report stage
Wednesday 6th April 2022 Lords Chamber

[Lord Holmes of Richmond (Con)]

My Lords, I will also speak to Amendments 27 to 30 and 34 to 37, which are all in my name. I thank my noble friend the Minister for the courtesy he showed in meeting me on a number of occasions, and his officials for the helpful discussions we have had since Committee. In particular, I thank the noble Lord, Lord Blunkett, for co-signing my amendments and for his wisdom and support, which are well known and appreciated across the House.

In Committee, I set out three pillars that blind and partially sighted people—indeed, all people—should be able to expect when voting: to be able to vote inclusively, independently and in secret. I carry these three pillars through to Report; they are the key pillars anyone should be able to rely on when exercising the most essential and fundamental right in our democracy.

The suite of nine amendments that I set forward would transform Clause 9 and achieve these three pillars, not least for blind and partially sighted voters. The clause will be simply changed by the insertion of “independently” after “to vote”, and the insertion of

“(including in relation to voting secretly)”

after the words “rule 37”. If agreed, this would set out in statute a high standard that any equipment provided would have to meet for voting independently and in secret.

I have not changed some of the Government’s drafting, which refers to “such equipment” that “is reasonable”. “Reasonable” would apply were it in the Bill or not, by operation of equalities legislation in this country, so it is all the better for being up front in this clause. I have also not changed the wording

“enabling, or making it easier”.

My interpretation of this wording is that it is a two-limb test for the equipment to be provided. I ask my noble friend the Minister to confirm whether this is the Government’s view. I believe that is how “enabling” comes into play for people such as myself, who would not be able to vote at all without such equipment. For those people who potentially can vote, but for whom it is unreasonably difficult for a whole host of reasons, “making it easier” comes into play. I see these as two separate and important elements of the clause, which are not set out as a choice to either enable or make it easier. I would welcome my noble friend’s view on that element of the clause.

I also talked in Committee about the real need to avoid a postcode lottery, which is absolutely critical. Whether you vote in Kidderminster or Kew, Cambridge or Sheffield, a blind or visually impaired person—or indeed any disabled or non-disabled person—should be assured that there is provision that meets that standard. Prescription could be either of equipment or, as set out in my amendment to new paragraph (3B), around a standard, which I believe is far more than the minimum standard.

Alongside this, moving forward from my Amendment 20 in Committee, I have set out a number of provisions for the Electoral Commission on these needs: to issue statutory guidance; to consult relevant organisations that will have expertise to bring to bear for the guidance; for a duty to report on what has happened at elections on accessibility and provision; and, for the first time, a duty to put in place performance measures around accessibility for returning officers. Added to this is the need for a “have regard” duty on returning officers for this guidance. Again, I believe that “have regard” is a high statutory duty to achieve.

Amendments 34 to 37 are equally important. They would do exactly what I have just set out in the context of Northern Ireland local elections.

Taken as a whole, these nine amendments would transform Clause 9 and Schedule 6 in terms of inclusive, independent and in secret provision for blind and partially sighted voters. Crucially, if adopted, they would not only make voting inclusive, independent and in secret but mean that people would no longer find voting difficult, upsetting, humiliating or demeaning. Even more so, they should mean that people who perhaps have never voted, for reasons of lack of inclusion, or inability to vote independently or in secret, will be encouraged to come to the poll and exercise their democratic right. I believe these amendments will achieve that. I hope my noble friend the Minister will support them in full. I very much look forward to the debate and I beg to move.

[Lord Thomas of Gresford (LD)]

My Lords, I express my full support and that of the Liberal Democrats for the noble Lord, Lord Holmes of Richmond, for producing this amendment. I congratulate him in particular on the success of his negotiations with the noble Lord, Lord True. I also congratulate the noble Lord, Lord True. This is a very sensible way to deal with a problem that I had not appreciated until last year, when I was partly sighted. The amendment stresses that a person suffering from blindness or partial sight, or another disability, can vote independently and in secret, and will not have to face the humiliation to which the noble Lord, Lord Holmes, referred of having either to announce his vote publicly in a polling booth or to have someone else vote for him.

It was very wise for he and the Minister to agree that the Electoral Commission should give guidance to returning officers and that it would have to consult the bodies concerned—the RNIB and others—before specifying the sort of mechanisms which would enable this to happen. One of the good things about this is that it is not prescriptive and so it allows the mechanisms to improve over time, as new inventions come forward. In Committee, I talked about the pilot scheme going on in, I think, Norfolk, where not only was a frame put over the ballot paper but information was given to the voter by a recording as to what was on the ballot paper. That was an interesting pilot scheme, but maybe more things will develop in the future and the wisdom of these provisions will be recognised. Having agreed the report that must be returned by returning officers, that of course ensures that these provisions are carried out. I very much support this amendment.

[Baroness Lister of Burtersett (Lab)]

My Lords, I too very much support and welcome these amendments. I am very pleased that there have been discussions which have led to an agreement. However, I have been approached by the RNIB, which welcomes the amendments but has some concerns. I want to raise a couple of them now.

One concern was partially addressed by the noble Lord, Lord Holmes of Richmond, when he talked about the postcode lottery. He argued that there is a minimum standard contained in the amendments, but the RNIB’s view is that there still is not a minimum standard of provision specified in the Bill. It would like to see that being more explicit. I would be grateful if, when responding, the Minister could explain how he sees the question of a minimum standard and whether the Government might be minded to tighten it up a bit.

One of the other points the RNIB makes—we discussed this in Committee—is that it is very keen that trials of potential accessible voting solutions continue. Therefore, I would be very grateful if the Minister could commit to driving innovation through government-run trials in the future.

Elections Bill

Lord Thomas of Gresford Excerpts

Lords Hansard - Part 2 & Committee stage
Wednesday 23rd March 2022 Lords Chamber

Moved by

[Lord Thomas of Gresford]

139: After Clause 11, insert the following new Clause—
“Voting by convicted persons sentenced to terms of 12 months or less
In section 3(1A) (exceptions to the disenfranchisement of prisoners) of the Representation of the People Act 1983, after “Scotland” insert “or a parliamentary election”.”Member’s explanatory statement
This new Clause would allow prisoners serving a sentence of 12 months or less to vote in UK parliamentary elections.

[Lord Thomas of Gresford (LD)]

My Lords, perhaps I may be forgiven for my second intrusion into the Committee by all those who are toiling so hard on it day after day.

It may be a bit trite, but in a democracy, all citizens are presumed to have the right to vote. That is the way by which they have a say in making the laws that govern them: demokratia. The Joint Committee of both Houses appointed to consider the draft voting eligibility (prisoners) Bill in 2013 concluded that the vote is a right, not a privilege. It does not have to be earned, and its removal without good reason undermines democratic legitimacy.

In the Criminal Justice Act 2003, the purposes of sentencing are said to be

“the punishment of offenders … the reduction of crime … the reform and rehabilitation of offenders … the protection of the public, and … the making of reparation by offenders to persons affected by their offences.”

Where does the disfranchisement of a prisoner come within those aims? It obviously has nothing to do with the reduction of crime, the protection of the public or the making of reparations. If it is regarded as an act of retribution, part of the punishment of offenders, it is doubtful that the prisoner thinks it significant in any way, compared with his loss of liberty.

This does not concern itself with proportionality: a prisoner loses the vote by the act of imprisonment, not by the nature of his crime. A person imprisoned for dangerous driving is in exactly the same position as a person serving a life sentence for rape or murder. Of course, unconvicted prisoners, convicted prisoners awaiting sentence and people imprisoned for either contempt of court or debt, remain eligible to vote.

--- Later in debate ---

[The Minister of State, Cabinet Office (Lord True) (Con)]

My Lords, I am grateful to all those who have spoken. Amendment 139, as has been said, seeks to extend the franchise for parliamentary elections to prisoners serving a term of 12 months or less. This Government believe, in common with the party opposite, that when a citizen commits a crime that is sufficiently serious to detain them in prison, they have broken their contract with society. In addition, the Government have made their position clear. We said openly in our manifesto:

“We will maintain the ban on prisoners voting from jail.”


Prison means the loss of a number of rights and freedoms, not least the right to liberty and freedom of association. The Government believe that the loss of voting rights while in prison is a proportionate curtailment of such civic rights. As such, we cannot support this amendment.

[Lord Thomas of Gresford (LD)]

I thank those who have supported me in this amendment. I am particularly grateful to those on the Labour Benches, and the noble Baroness, Lady Bennett, who have spoken in favour.

I just wonder about the Labour Party. In Cardiff, it moved to bring about voting for prisoners, seeing it as an important part of its remit from the people of Wales. Here, however, it is dismissed in a sentence: “We haven’t changed”. The Labour Party is a little bit split. I am not sure what it said in Scotland; I will have to look that up after this and investigate.

This is the way the world is going. You can stand in the way if you like, but ultimately the vote will be given to prisoners, just as it is in most democracies around the world. For the moment, I beg leave to withdraw the amendment.

Amendment 139 withdrawn.

Elections Bill

Lord Thomas of Gresford Excerpts

Lords Hansard - Part 1 & Committee stage
Tuesday 15th March 2022 Lords Chamber

[Lord Kerslake (CB)]

My Lords, I would like to lend my support for the amendments in this group. Interestingly, the Bill says that its purpose is

“to strengthen the integrity of the electoral process”

but not its inclusivity. That is a gap that pervades the whole Bill, and we will return to it in subsequent debates.

In this specific instance, there is a significant gap indeed—you have only to read the RNIB briefing to see the extent of it. It identifies the scale of the challenge, with 250 people starting to lose their sight every day, and its serious concerns that the Elections Bill weakens protections for blind and partially sighted voters at polling stations. It seems to me surprising, if not unconscionable, that we will be approving legislation that the RNIB believes weakens protections.

It is doubly concerning given that, as the noble Baroness, Lady Lister, has said, there are plenty of opportunities to improve access through technology. There are pilots that have proven to be successful.

I find it difficult to understand why the Government would resist these amendments, which seek to keep the innovation within the system but maintain the protections. That ought, after all, to be what we seek to do here. If the outcome of this legislation is that those who are blind or partially sighted feel that their opportunities to vote independently and in secret are diminished, and that their protections are diminished, something has gone very badly wrong in our consideration of legislation.

[Lord Thomas of Gresford (LD)]

My Lords, Article 29 of the United Nations Convention on the Rights of Persons with Disabilities mandates all countries to

“guarantee to persons with disabilities political rights and the opportunity to enjoy them on an equal basis with others … ensuring that voting procedures, facilities and materials are appropriate, accessible and easy to understand”.

It further emphasises

“the right of persons with disabilities to vote by secret ballot in elections and public referendums without intimidation … facilitating the use of assistive and new technologies where appropriate.”

In November 2018, the European Blind Union published its Report on the Accessibility of Elections for Blind and Partially Sighted Voters in Europe, in which it reviewed the provisions of facilities. It looked at the methods of voting in 45 countries in Europe and emphasised the core values of equality, independence and secrecy of the vote, which speakers have already referred to. The report found that

“paper-based voting in itself is not accessible to most BPS voters. A blind voter is not able to identify different elements on the ballot and independently mark the preferred option or options on the ballot.”

As for partially sighted voters,

“adequate font sizes and contrast values on the ballot as well as magnifying glasses in the voting booth and good lighting conditions”

can help.

Last year, with my limited vision, I could not read anything printed. I could just about read backlit text on a laptop or iPad, but only in reverse-contrast and with the aid of a magnifying glass. In any event, I could not read election literature—not that I really needed or even wanted to do so. I could have voted, I suppose, with the aid of my wife, the noble Baroness, Lady Walmsley, but could I trust her to put my cross against the Liberal Democrat candidate?

[A noble Lord]

She is not in her place.

[Lord Thomas of Gresford (LD)]

Thank God. The EBU report is an exhaustive study of the methods used in European countries. In Russia, you can have an assistant to vote in a polling booth; they cannot be a candidate or a member of a political party, surprisingly enough—perhaps the man with the Kalashnikov on the door will suffice. The local election commissions in Russia submit information on the number of BPS voters in the territory and, depending on need, stencils—TVDs—are produced and distributed to some polling stations. It is not difficult, though, if there is only one hole into which you can place your cross.

Elections Bill

Lord Thomas of Gresford Excerpts

2nd reading
Wednesday 23rd February 2022 Lords Chamber

[Lord Thomas of Gresford (LD)]

My Lords, the right to vote is indeed a privilege. I want to focus on Clause 9, the provision for the blind and partially sighted to vote. I have a real interest, in that for half of last year I was suffering from a cataract in my one and only eye, complicated by bleeding into the back of the eye. The result was that the printed page appeared to me as a complete blank. All I could do was read, with difficulty, a backlit iPad or laptop with reversed text and with the aid of a large magnifying glass. I could not have read a ballot paper.

Schedule 1 of the Representation of the People Act 1983 provides the rules that govern elections. Rule 29 states:

“(3A) The returning officer shall also provide each polling station with - (a) at least one large version of the ballot paper which shall be displayed inside the polling station for the assistance of voters who are partially-sighted; and (b) a device of such description which may be prescribed for enabling voters who are blind or partially-sighted to vote without any need for assistance from the presiding officer or any companion.”


The device prescribed is known as the tactile voting device or TVD. It is made from a sheet of transparent plastic which is as long as the ballot paper and is placed on top of the ballot paper. On the right-hand side of the TVD are flaps, numbered from one at the top and so on down the page so that the number of flaps corresponds to the number of candidates standing in the constituency. The number printed on each flap is raised so that it can be felt by touch. Adjacent to each flap, the flap number is printed in Braille to assist those who are blind and Braillists. But there is no way for voters who are blind to know, without help, which flap on the TVD corresponds to which candidate, and to which party. It is only the number of the tab that is in Braille. Either the official in charge of the polling station or a member of their close family has to read out the names of the candidates and the order in which they appear on the ballot paper.

In practice, because of that inability to read the names of the candidates on the ballot paper, the vast majority of the 350,000 blind and partially sighted people in the UK currently find it impossible to vote without having to share their vote with someone else, often finding they have to name the candidate they want to vote for out loud. RNIB figures from UK elections in May 2021 found that four in five blind people felt that they were unable to vote both independently and in secret. A survey carried out by the RNIB gave many examples of the impact that this has. One said:

“My helper disagrees with my vote and I have no way to be sure she voted as I wished.”


In 2019, Rachael Andrews, a 46 year-old lady from Norfolk who had no sight in one eye and only partial sight in the other, judicially reviewed these arrangements. Mr Justice Swift in his judgment said:

“A device that does no more than enable blind voters to identify where on a ballot paper the cross can be marked, without being able to distinguish one candidate from another, does not in any realistic sense enable that person to vote. Enabling a blind voter to mark ballot papers without being able to know which candidate she is voting for, is a parody of the electoral process established under the Rules.”


The RNIB subsequently agreed with the Cabinet Office that blind and partially sighted voters would be given an audio player alongside the TVD, which was trialled in Norfolk in the May 2021 elections, with a 91% satisfaction rate. Whether this or another solution is adopted, it is essential that there is a minimum standard of equipment uniformly available in every polling station to ensure that blind and partially sighted people can exercise their vote in secret.

The current wording in the Act is:

“The returning officer shall also provide … a device of such description as may be prescribed.”


This Bill changes the wording by replacing that paragraph with

“such equipment as it is reasonable to provide”.

Reasonable for whom—the particular returning officer, depending upon the resources allocated to him, or the blind voter?

Currently, a companion has to be a close member of the blind voter’s family. That is removed in this Bill and replaced with anyone over 18 years. The dangers of that are obvious and I ask the Minister to explain the change. How could the voter be sure that her companion was giving her an accurate description of the ballot paper? What happened to the results of the audio pilot?

Dissolution and Calling of Parliament Bill

Lord Thomas of Gresford Excerpts

2nd reading
Tuesday 30th November 2021 Lords Chamber

[Lord Thomas of Gresford (LD)]

My Lords, what a pleasure it is to follow the noble Lord, Lord Rooker, with all his passion, and to hear from him that he will, like us, push this Bill back over and over again until it is gone.

I had always understood that once a prerogative power of the Crown is lost, it is lost for ever. This Bill asserts a highly controversial and novel proposition that, by Act of Parliament, it can be declared that a previous Act of Parliament never existed; that we return to the status quo ante. Rather than enact new legislation that could not avoid the scrutiny of the courts, government policy is to obliterate the Fixed-term Parliaments Act: it never was; it never existed; Carthago delenda est. I occasionally like to speak a language that the Prime Minister might understand.

We have heard today from the noble and learned Lords, Lord Hope and Lord Mackay, about the considerable conflict among lawyers and academics over whether you can revive a prerogative power. That will lead to inevitable litigation unless, by Act of Parliament, you can exclude the courts from considering it at all. The Government exercise the prerogative powers of the Crown, but not in an absolute way. All prerogative power is subject to the law; that is part of the common law of this country. The constitutional settlement of this country is that the Executive are subject to the law, that the power to make and unmake the law is exercised through Parliament, not the Executive, and that it is the exclusive right of the judiciary to determine what is the law. That is what is called a liberal democracy. Since the civil war, this country has not been an absolutist country where the Executive pass whatever laws they wish.

In a liberal democracy, there are two overriding principles: the separation of powers and the rule of law. They have proved to be an effective protection of the safety, dignity and human rights of the people of this country. A view was expressed by a majority in the Joint Committee on the Fixed-term Parliaments Act, which considered these proposals in 2021, that Parliament should be able to designate certain matters as ones which are to be resolved in the political sphere, rather than the judicial sphere, so that Parliament should be able to restrict, and, in rare cases, entirely to exclude, the jurisdiction of the courts. This challenges fundamentally those two principles—the separation of powers and the rule of law. Noble Lords will note the committee’s view that

“Parliament should be able to designate”

which side of the line it falls. Parliament should be able to set the boundaries of what is and is not within the political sphere.

If a Prime Minister abuses the power of Dissolution, as this Prime Minister abused the power of Prorogation, the Bill seeks to ensure that the courts would be unable to exercise any control over his or her action. Clause 3(c) prevents a court examining even the “limits or extent” of the powers of Dissolution. As the Explanatory Notes say in terms:

“This is to address the distinction drawn by the Supreme Court in Miller … as regards the court’s role in reviewing the scope of a prerogative power, as opposed to its exercise.”


In other words, it would prevent a court finding that the Prime Minister had exceeded his powers in requesting a Dissolution, or in any related advice that he had acted ultra vires. This tries to get rid of any control at all over the Prime Minister.

Why do the Government want to revive the status quo? In his evidence to the Joint Committee, the Minister, the noble Lord, Lord True, said:

“The long-standing position is that the exercise of the prerogative power to dissolve is not reviewable by the courts and that had been the understood position since the Bill of Rights. And obviously judgments on any Government’s action should then lie with the people rather than with anybody else”.


That is an impressive statement, but what is the “understood position” based on? I am not aware of any precedent, ever, where the point at which the Dissolution cannot be reviewed by the courts ever came up. There was no precedent for the actions of the Prime Minister when he prorogued Parliament, yet the courts did intervene and held his action to be unlawful. If the purpose of this Bill is to return to the status quo ante, that status did not anywhere justify the Minister’s assertions to the Joint Committee that it has been

“the understood position since the Bill of Rights”—

it has never been discussed.

The Constitution Committee said in its report on the Bill:

“The use of ouster clauses to restrict or exclude judicial review of executive decisions touches the bedrock of the constitution, particularly the precise balance between the rule of law, the separation of powers and the sovereignty of Parliament.”


There is a school of legal jurisprudence called legal positivism, which claims that law is a human construct with no connection to morality or even justice. If the legislature, however it is elected, has passed a law, it must be obeyed. That is so if it is unjust, unwise or immoral. That is the positivist approach. It may be a bad law by some standard, but if it was added to the system by a legitimate authority, it is still a law. I am glad to see that the noble and learned Lord, Lord Etherton, is in his place, because his lecture at Gray’s Inn—the Birkenhead Lecture—pointed out that it was the defence of German judges in the Nuremberg trials that they were only applying the laws passed by their leader as the embodiment of the executive; he had of course abolished the president, the legislature and judicial review.

The common law, under which we enjoy our freedoms, derives from the traditions of natural law, as exemplified in the Bill of Rights, the American Bill of Rights, the UN convention and many other laws and human rights conventions. I was very pleased to hear the noble Earl, Lord Leicester, refer to his ancestor, Sir Edward—whom we must always call “Coke” hereafter, as I understand it—because he was one of the founders of our view of the common law.

We said we would never look back. Statutory power is what we want, clearly defined, and the consent of Parliament to its Dissolution—and that can be put before the Queen, without ever involving her in political controversy.

Protocol on Ireland/Northern Ireland (EUC Report)

Lord Thomas of Gresford Excerpts

Monday 13th September 2021 Grand Committee

[Lord Thomas of Gresford (LD)]

My Lords, it is a privilege to serve on the Northern Ireland sub-committee, under the excellent chairmanship of the noble Lord, Lord Jay of Ewelme. I pay particular tribute to Stuart Stoner for his contribution, and to Breda Twomey, who was in charge of the administration. The noble Lord, Lord Jay, achieved something that is quite surprising: agreement, by all members of the committee, to this interim report. As the noble Lords, Lord Caine and Lord Empey, both pointed out, a diverse bunch of people were on that committee and to get them to agree an interim report was quite something.

But things have moved on. If I may coin a phrase, we were where we were. On the day we published our report, 21 July, the Command Paper that has been referred to was published. Paragraphs 45 and 70 called for UK-EU negotiations so substantive as to create a new settlement to supersede parts of the protocol. The response of the EU was:

“we will not agree to a renegotiation of the protocol.”

Two days later, the Minister formally requested a standstill of current arrangements in accordance with paragraph 77 of the Command Paper and a freezing of the EU’s existing legal actions. While not obliged to do so, the Commission halted its proceedings arising out of the British unilateral action last March to extend the grace periods.

Then we had the ministerial Statement on 6 September, which was another unilateral declaration to continue the grace periods and easements currently in force to which the European Commission had not assented. The Commission replied the same day to the effect that both sides were legally bound by an international agreement to fulfil their obligations under it, emphasising that it would not agree to renegotiation. At the moment we are in a position of stalemate. The European Commission said:

“Our focus remains on identifying long-term, flexible and practical solutions to address issues related to the practical implementation of the Protocol”.


To my mind, that sounds an admirable aim. The question is: will it happen? The Commission also said:

“Our approach to the Protocol is based on the achievement of stability, certainty and predictability in line with the objectives of the Good Friday (Belfast) Agreement and in order to protect the Single Market.”


That is a statement of intent which, again, seems perfectly reasonable and desirable.

The next thing to happen was the speech of Sir Jeffrey Donaldson, which introduced the fantasy world in which he threatened to break up the power-sharing Government in Northern Ireland if the protocol was not abandoned. The Belfast Telegraph described it in terms such that Boris’s bridge to Northern Ireland would be built before that happens. The Minister said in his speech to the British-Irish Parliamentary Association on 4 September that his purpose is not to scrap the protocol but to rebalance it. Does he support the new stance taken by Sir Jeffrey Donaldson? I am sure he will answer that question in his reply. If he is not prepared to do what Sir Jeffrey Donaldson suggests—to abandon the protocol—why is he not prepared to use the dispute mechanisms he agreed to in the protocol? Why has he proceeded by unilateral diktat?

This was anticipated many years ago. The noble Baroness, Lady Kennedy of the Shaws, said in 2017, when she was a member of the European Union Committee:

“Going forward, the Government will have to ensure that it can agree a clear, certain and robust enforcement mechanism to ensure that any rights and obligations under the Withdrawal Agreement (and subsequent partnership arrangements with the EU) can be upheld in the event of a dispute.”


The noble Lord, Lord Caine, told us just now that the protocol is not sustainable. But is it beyond resolution? There are problems and one of the concerns I have voiced in the committee has been about the democratic deficit—which is an important issue of principle that has to be resolved.

Professor Katy Hayward of Queen’s University Belfast, in an article for UK in a Changing Europe in July, said:

“Such matters can be resolved largely through the work of the Specialised Committee, whose continuing technical talks are leading to some legislative change in the EU to allow flexibilities for Northern Ireland. Or, if more substantial, the Joint Committee could adopt a decision to amend the Withdrawal Agreement if ‘necessary to correct errors, to address omissions or other deficiencies, or to address situations unforeseen when this Agreement was signed’ … The UK government is seeking fundamental changes of the type and scale it thinks requires renegotiation, but fails here to present evidence as to what cannot be resolved through the existing means.”


Why did the Minister agree to the European Court of Justice being the final arbiter? Why did he concede that final jurisdiction to Michel Barnier of all people, who revealed last week that he believes that the legal sovereignty of France is threatened by the rulings of that court? Perhaps Monsieur Barnier is trying to tune in to the populist urges of his right-wing party in his bid to be its leader. The impression is strongly given in this country—the Minister can perhaps deal with this—that he cannot now stomach the role he agreed for the European court and therefore now avoids, shies away from, the dispute mechanisms he agreed to in the withdrawal agreement.

Analysis from the Institute for Government shows that between 2003 and 2016, compared with other EU member states, the UK resolved its cases in the ECJ early, ended up in court less often than most and won more often than most. This was due to the quality of British lawyers—well, I would say that wouldn’t I?—and their skill in presenting and arguing their case. We have nothing to fear from that court. Why replace it with a set of unknown, ad hoc international arbitrators as the final decision-makers?

We on these Benches did not seek to leave the European Union, and I suggested at the time that it would lead to the break-up of the United Kingdom, a threat which has not gone away as the cold light of day falls upon the promises that were made, but my approach within the committee, as committee members will know, has been to be more optimistic for Northern Ireland. I see that there is a prize to be grasped: the prize of prosperity due to the unique circumstances of its access to both the single European market and the UK, a point strongly made by my noble friend Lady Suttie and recently by the noble Lord, Lord Kerr. I was heartened to find that my perception was strengthened by our witnesses, who spoke of the increased trade with the Republic of Ireland and the many business inquiries from all over the world. The noble Lord, Lord Empey, referred to the constitutional carbuncle that will take place in 2024 when a decision is to be made about the continuation of the protocol. That puts considerable pressure on the political parties that will be fighting next May’s elections.

The possibility of prosperity is the future which Sir Jeffrey Donaldson should grasp. That is what this Government at Westminster should be working for: to sort out and minimise the practical problems by negotiation within the terms of the dispute mechanism. That is the way we will find certainty and ultimately stability for the whole of Northern Ireland and its people.

Northern Ireland Protocol

Lord Thomas of Gresford Excerpts

Wednesday 21st July 2021 Lords Chamber

[Lord Frost (Con)]

My Lords, where there are trust problems between us and the European Union, they stem ultimately from the issues that we have on the protocol. I agree 100% with the noble Lord that we must try to nip that in the bud and stop it getting in the way, in a durable way, of the rest of the relationship. The issue of Gibraltar that he raises obviously is a dispute about a different issue. There are analogous elements, but it is important to keep these things separate. The mandate that the EU agreed yesterday does seem to be problematic in a number of ways, as my right honourable friend the Foreign Secretary made clear yesterday. But I do not think it makes sense to connect one thing with another. We deal with each of these issues on its own terms and try to proceed in a constructive way.

[Lord Thomas of Gresford (LD) [V]]

My Lords, seven months ago the Minister negotiated and signed the protocol and presented it to the British people as a triumph. Today he stands at the Dispatch Box and says, “It’s rubbish, doesn’t work, we’ve got to have something better”. Would not the first step—and the best way of resolving the trust problems to which he referred—be for him to resign for a gross failure of government policy for which he is personally responsible?

[A noble Lord]

Just say no.

Council of Europe Convention on Access to Official Documents

Lord Thomas of Gresford Excerpts

Tuesday 20th July 2021 Lords Chamber

[Lord True (Con) [V]]

My Lords, I have given the House the reasons for the Government not wishing to adhere to the convention. However, the United Kingdom Government are absolutely committed to transparency and the principles behind the convention and recognise the work done by the Parliamentary Assembly of the Council of Europe in this sphere. We routinely disclose information well beyond our freedom of information obligations and in line with many of the provisions of the convention.

[Lord Thomas of Gresford (LD) [V]]

I am sure the Minister is entirely apprised of the fact that the Council of Europe is completely separate from the EU. The attitude of the Government on an issue such as this tends to smack of an anti-European thread in the Government, which I am sure is not in the interests of this country. Can the Minister kindly explain why such a universally accepted treaty should not be acceded to by this Government?

[Lord True (Con) [V]]

My Lords, I have underlined the principle of this Government’s belief in transparency. I refute the idea that there is anything anti-European here. The current adherents to the treaty are Bosnia, Estonia, Finland, Hungary, Lithuania, Montenegro, Norway, the Republic of Moldova, Sweden, Ukraine and Iceland. The majority of EU countries are not signatories. I think that answers the noble Lord’s point that this is some kind of EU line.