Adviser on Ministerial Interests

Debate between Robert Buckland and Michael Ellis

Tuesday 21st June 2022 Commons Chamber

[Michael Ellis]

I respectfully advise the hon. Gentleman to read the document he is quoting. First, those lines were only included in the foreword of the document since August 2019. They are still within the body of the document. What it says in the foreword is very often topical and should not be taken as inclusive of every item that follows in the substantive document.

[Sir Robert Buckland]

Further to that, are not the Nolan principles set out in annex A to the ministerial code? All this nonsense about their removal is factually wrong. However, will my right hon. and learned Friend commit today to do the process of the appointment of a successor to Lord Geidt as soon as reasonably practicable?

[Michael Ellis]

My right hon. and learned Friend is absolutely right about the code. I think it is annex A, and it may even be 1(c), although I may be wrong. The foreword is a topical document and how and by whom Lord Geidt is replaced are being worked through in detail.

The Government have only very recently made a number of significant changes to the remit of the independent adviser and to the ministerial code, and those changes were made in response to recommendations from the Committee on Standards in Public Life, as the former Attorney General, my right hon. and learned Friend the Member for Kenilworth and Southam (Sir Jeremy Wright), mentioned only a few moments ago. They represented the most substantial strengthening of the independent adviser’s role and office during the lifetime of that post. The role has been strengthened and increased substantially. I will not run through all the details of those changes again. In the light of last week’s events, it strikes us as reasonable to not rush in, but pause and reflect on how to do it properly.

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[Michael Ellis]

No.

The creation of an adviser with the power to initiate consideration of a potential breach of the ministerial code is different, and we can safely predict it would open the door to a wave of frivolous and vexatious complaints. We have to think about that and the reputation of this House because, now and across all future Administrations, there would be no downside in political opponents throwing in complaints like confetti. The Opposition of the day would not face tit-for-tat complaints, because they are not Ministers.

As we saw with the failed Standards Board for England in local government, a culture of petty complaint would undermine not strengthen confidence in democracy, which is precisely why such arrangements need to be thought through, to consider and avoid the unintended consequences that will ultimately afflict both sides of the House.

[Sir Robert Buckland]

My right hon. and learned Friend is being generous in taking interventions. I agree about the importance of balance between the Executive and the legislature. May I press him on the need for a mechanism to appoint a successor to Lord Geidt? I understand that he cannot give us dates or commitments, but can I have an assurance that a successor will be appointed as soon as practicable?

[Michael Ellis]

What I can say to my right hon. and learned Friend is that the matter is being given very careful and full consideration. I hope that answers the point.

2014 JHA Opt-out Decision

Debate between Robert Buckland and Michael Ellis

Monday 15th July 2013 Commons Chamber

[Mr Buckland]

I pay tribute to my hon. Friend and to my hon. Friend the Member for Enfield North (Nick de Bois) for the campaign that they have rightly pursued on behalf of that Enfield resident.

I made the point earlier about the distinction between our system of justice and certain others. Ours seeks to use proper evidence to identify individuals who are suspected of committing crimes, and then to proceed against them. We have to look at that in the context of other systems in which the investigation process is far too long and in which evidence that we would not regard as strongly probative can be used to launch an investigation that can result in someone being incarcerated for an inordinate period of time. The amendments to the Anti-social behaviour, Crime and Policing Bill, which will amend the Extradition Act 2003, are vital in this context. I was delighted to see that one amendment provides that, in the absence of a prosecution decision, a court would have to consider that factor before allowing extradition. In fact, it would be barred where there was no clear prosecution decision to charge or try the individual concerned. I believe that the sort of monstrous situation in which Mr Symeou and others have found themselves can in large measure be avoided.

[Michael Ellis]

I hear what my hon. Friend says, but does he agree that the changes envisaged to the European arrest warrant as enunciated by the Home Secretary a few days ago make it a very different kettle of fish?

[Michael Ellis]

I see the Labour Benches are as full as I would expect them to be, which says something about the interest of the Opposition in this matter. Does my hon. Friend agree that the European arrest warrant will be something completely different because its charging decisions will be made beforehand, and that proportionality is another factor that must be carefully considered?

[Mr Buckland]

My hon. Friend is right to repeat a good point, and he should make no apology whatever for that. When I went to court I was always taught to make the point, make it again, and make it again if I thought the jury was in some way unsure.

Defamation Bill

Debate between Robert Buckland and Michael Ellis

Tuesday 12th June 2012 Commons Chamber

[Mr Buckland]

Very much so. As I said, the Bill has been long in the making—some would say, generations. The right hon. Member for Tooting (Sadiq Khan) reminded us that in the 160 years since the Common Law Procedure Act 1852 there have been only two subsequent pieces of legislation—pieces of legislation that have dealt with the law in a piecemeal way.

The Defamation Act 1996, as some who were Members when the measure was passed will recall, dealt with a particular context and a particular case. A former Member, Neil Hamilton, found that his case was stayed by the court because it was felt that the defendant newspaper could not prepare its defence adequately without infringing parliamentary privilege. That resulted in section 13 of the 1996 Act, allowing a Member of either this House or the other place to waive for the purposes of the defamation proceedings

“the protection of any enactment or rule of law which prevents proceedings in Parliament being impeached or questioned in any court or place”—

parliamentary privilege.

At the time, I was a little uncertain about the passage of that provision, which seemed to represent yet another piecemeal approach to a fundamental right that has been exercised ever since article 9 of the Bill of Rights of 1689—parliamentary privilege. Another Committee of this House has considered parliamentary privilege carefully, and there may well be legislation to deal with it. In doing so, I would urge the utmost caution. Reform and refinement of such a basic and well-understood principle could lead to further confusion and potential court interference. It is essential that all of us in this place and in the House of Lords understand that changes to parliamentary privilege, whether in the context of the 1996 Act or subsequent proposals, could lead to the erosion of that privilege, which would be a regrettable and undesirable outcome.

In my view, section 13 of the Act should be repealed, and we should consider instead a more general right of waiver that not only would apply to defamation but to a range of court actions in which Members of Parliament or Members of the House of Lords may become involved. This Bill could have taken that step, but I quite understand Ministers’ desire to get on with the job in hand and to avoid being potentially sidetracked by questions of privilege that may have to be returned to.

[Michael Ellis]

Does my hon. Friend recognise that Her Majesty’s Government intend to work on a Green Paper that will deal in a lot more detail with parliamentary privilege, and that by separating the issue and giving it the advanced status of its own Green Paper and potentially a separate Bill, they are showing that they are giving it a high priority?

[Mr Buckland]

My hon. Friend is right to outline, in a better way than I could, the intended progress of any reform to the law of privilege. However, I reiterate that we tamper with article 9 at our peril and should listen carefully to those who urge caution.

I raise this issue to illustrate the piecemeal way in which defamation law has been dealt with. We have let the courts, in their wisdom, develop common law, and that has happened in what many of us would regard as an acceptable way that reflects evolving views about reputational damage but is fundamentally not as directly accountable to the people we serve as it should be. That is why introducing primary legislation of this nature is the right and just thing to do. It shows the people of this country that Parliament is prepared to take a lead on an important issue such as defamation.

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[Mr Buckland]

My hon. Friend is right, and one has to draw a distinction between matters of law, which are always the province of a judge irrespective of whether a jury is involved, and matters of fact. The Lord Chancellor made the point that there may well be cases in which there are classic conflicts of account between individual witnesses. Such cases may require the shrewd judgment of a randomly selected jury of members of the public, who use their experience of the world and their good sense to judge whether, on the balance of probabilities, the claimant’s case is made.

[Michael Ellis]

My hon. Friend is conscious of the fact that the Bill envisages not removing the right of jury trial in defamation actions but simply lessening the presumption that jury trials will take place. It will be for the judge to decide. Does he believe that judges are likely to decide on jury trials very frequently? What criteria does he think a judge might use, or what common law does he think might evolve, for deciding on the use of jury trials?

[Mr Buckland]

The Bill is silent on that. Clause 11 merely amends the relevant parts of the Senior Courts Act 1981 and the County Courts Act 1984, which allow a trial by jury unless the trial requires prolonged examination of documents and so on. The practice could develop in secondary legislation, but I doubt whether that would be seen as an appropriate mechanism to guide judges. I rather think that it will evolve as a matter of judicial discretion. I would be cautious about supporting secondary legislation that sought to prescribe the circumstances in which a jury trial ought to be ordered.

The point that my hon. Friend the Member for Stroud (Neil Carmichael) made about streamlining procedures is important. As the Joint Committee on the draft Bill pointed out, whether or not there are jury trials, there has to be proper reference to alternative dispute resolution methods such as mediation and neutral evaluation by a third party—all the mechanisms that serve to deliver justice and the redress of grievance not just to the millionaire in his Belgravia townhouse but to Mrs Trellis of 22 Acacia grove, who does not have the means to spend a lot of money on expensive litigation but who has been the victim of a wrong that needs to be corrected.

UK Extradition Arrangements

Debate between Robert Buckland and Michael Ellis

Monday 5th December 2011 Commons Chamber

[Michael Ellis (Northampton North) (Con)]

I congratulate my hon. Friend the Member for Esher and Walton (Mr Raab) on securing this debate, my hon. Friend the Member for Enfield, Southgate (Mr Burrowes), who is no longer in his place, on his representation of his constituent, and of course my hon. Friend the Member for South Dorset (Richard Drax) on his eloquent representation of his constituent. I also congratulate Her Majesty’s Government on putting in place the mechanisms by which this debate can take place, by introducing the Backbench Business Committee.

My comments will be on the United Kingdom-United States extradition arrangements. I accept that there is a problem with the European arrest warrant, particularly as regards proportionality, and I would submit that it has other serious defects in other respects, too. Not only is it inappropriate for there to be extradition in cases where there is considerable doubt about the seriousness of the alleged offence, but there are clearly differences between the judicial and incarceration systems in many of our European neighbour countries.

[Mr Robert Buckland (South Swindon) (Con)]

Does my hon. Friend agree that one of the problems posed by the use of the warrant is that it is sometimes used to aid investigation rather than prosecution, as in the example just given by my hon. Friend the Member for South Dorset (Richard Drax)?