Northern Ireland (Executive Formation etc.) Bill

Viscount Hailsham Excerpts

Ping Pong (Hansard): House of Lords
Monday 22nd July 2019 Lords Chamber

[The Parliamentary Under-Secretary of State, Northern Ireland Office and Scotland Office (Lord Duncan of Springbank) (Con)]

My Lords, the other place has chosen to accept the amendment from the noble Lord, Lord Anderson, requiring that fortnightly reports under Clause 3 be subject to Motions and debate in both Houses. That amendment has been further amended. The further amendment seeks to require that if Parliament stood prorogued or adjourned at any point when a debate might be expected under the terms of the noble Lord’s amendment, a proclamation would have to be made requiring Parliament to meet within the five-day period and for the following five days.

The Government’s position has been to oppose amendments which amount to procedural gambits in this area. Amendment 1A has little to do with Northern Ireland. This Bill is about enabling an Executive to be reformed and Clause 3 is concerned with ensuring that Parliament can be kept up to date on progress towards that aim. It is disappointing that the other place has chosen to take the issue of restoring devolved government to Northern Ireland and to misuse that as a wedge to manufacture debates around Brexit, drawing on a precedent designed for entirely different circumstances under the Civil Contingencies Act 2004.

This amendment seeks to take this Bill and the vital and sensitive issue of re-establishing an Executive and use it as an opportunity to create highly unusual procedural requirements here at Westminster to address UK-wide Brexit issues. That is not the message our Parliament should send to the people of Northern Ireland about the importance we accord to devolution there. The Government urge the House not to agree with the amendment from the other place. I beg to move the Motion in my name.

[Viscount Hailsham (Con)]

I rise briefly to support the amendment passed in the House of Commons last Thursday by a majority of 41 and thus express my strong opposition to the Motion of disagreement moved by my noble friend Lord Duncan. In doing so, I say to your Lordships that I make no personal criticism of my noble friend; he always conducts himself with considerable dignity in this place and I know he is always listened to with great respect.

Last Monday, and on previous occasions, I expressed my strong opposition to Brexit. It is my belief that this is a matter that should be decided by the House of Commons through a meaningful vote and not by Ministers alone. I do not intend to repeat the detail of those arguments today and will confine myself to three points.

First, in the debates last week, some of your Lordships suggested that it was constitutionally improper for this House, an unelected Chamber, to pass the amendment then under consideration and subsequently accepted by the Commons. We were told by one of my noble friends that, by acting in such a way, we were putting the very future of this House in jeopardy; doubtless some of those who held such views will troop through the Government Lobby today. Keeping that in mind, it is truly bizarre that the opponents of the Commons amendment, the Government themselves, are now asking us—the unelected House—to frustrate a decision made by the elected House with a very substantial majority. The positions adopted by the Government last week and this are inconsistent and cannot sensibly be reconciled. To those who are about to do it, I say that to stand on one’s head in such circumstances is not credible, comfortable or dignified.

Secondly, I have said that I believe Brexit was an extraordinary act of national self-harm that was not supported by plausible assumptions or credible evidence. On Thursday last week, the country received the expert opinion of the Office for Budget Responsibility. Its conclusion is that, on any of the credible assumptions, a no-deal Brexit will cause Britain very serious economic damage. This is not Project Fear; it is a professional assessment of the likely outcome of a no-deal Brexit. It must surely be the subject of serious parliamentary consideration before any decision is taken to leave the European Union, whether on 31 October or some other date. Prorogation to prevent that consideration would be unpardonable.

Thirdly and lastly, the amendment in the Commons that we are now discussing is prompted largely by the well-founded anxiety that Mr Johnson—the likely next Prime Minister—might seek to suspend the sitting of Parliament to prevent the Commons challenging and perhaps overriding the decisions of Ministers. Last Thursday, in the debate in the House of Commons, Mr Johnson could have provided the appropriate reassurance. He was in the House. I am sure that the Speaker would have called him. Mr Johnson could have said that upon his honour he would do no such thing. He could have written to my noble friend the Minister, copied to all of us, giving such an assurance. He could indeed have used his well-remunerated pen to craft an article in those terms, though had he done so I would have liked to have inspected his computer to see whether another and quite different version was to be seen on the screen. But he has done none of those things. Quite the contrary: Mr Johnson voted against the cross-party amendment passed and now being discussed, and in his article in today’s Daily Telegraph he ignored the position completely.

Your Lordships are entitled to assume that such a constitutional outrage is indeed within the contemplation of Mr Johnson. Given that, this House—indeed, all of those who respect parliamentary government—must take every proper step to prevent such a disgraceful act happening. The Commons amendment now before the House is one such measure. Your Lordships should affirm it and reject the Motion moved by my noble friend.

[Lord Tebbit (Con)]

My Lords, last week, after a similar harangue from my noble friend, I described these manoeuvrings as a “dog’s dinner”. A dog’s dinner it was, a dog’s dinner it is, and a dog’s dinner is no better for being served cold a second time. We should, as my noble friend the Minister advised us, reject this.

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[Lord Forsyth of Drumlean]

I am sorry—17.4 million people is pretty overwhelming when it came in the biggest democratic exercise that we have ever had. It stands in stark contrast to the 8% which the Liberals managed to get in the general election. It is the duty of this House to preserve our constitution, which depends on respecting our conventions. This amendment is quite improper. It is a piece of chicanery, added to a Bill which is being fast-tracked, on a subject which has nothing whatever to do with that Bill. It flies in the face of the speeches that we hear over and again, particularly from the Liberal Benches, about the importance of respecting devolution and the ability of the devolved Assemblies to carry out their purposes. I very much support my noble friend the Minister in asking the House to reject this amendment.

As for the sophistry that came from my noble friend Lord Hailsham, he argued that it would be wrong for us to overturn an amendment which had come from the Commons. That is absolute sophistry because we all know what is going on here: a minority of people in the House of Commons are trying to frustrate the wishes of the British people.

[Viscount Hailsham]

They had a majority of 41.

[Lord Forsyth of Drumlean]

The majority was for delivering the result of the referendum, which was passed by both Houses. That is what the British people expect to happen, so I have great pleasure in supporting my noble friend the Minister in asking us to rejectj the amendment.

Northern Ireland (Executive Formation) Bill

Viscount Hailsham Excerpts

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

[Lord Anderson of Ipswich (CB)]

My Lords, I shall speak to Amendments 2 and 3 but I do not intend to press Amendment 2, which on reflection adds nothing of substance to Amendment 3. These amendments, which are identical to those moved with cross-party support in Committee, provide that Parliament is to sit at specified intervals between September and, at the latest, December to consider the progress reports already provided for by Clause 3.

Amendment 3 serves a useful purpose in the context of this important Bill. As pressure is exerted to reconvene the Executive, there is every reason for both Houses of this Parliament to review and interrogate such progress as is made. The strong interest of this House in the content of those reports is demonstrated by the amendments agreed on Monday and by those which are yet to be considered today. But the greater significance of Amendment 3 lies less in the subject matter of the debates for which it provides than in the more fundamental fact that Parliament must be in session for such debates to take place.

If enacted, these amendments will express Parliament’s expectation of being consulted on not just these reports but an even more pressing political issue: the future of our relationship with the European Union. If Parliament were to endorse a no-deal Brexit, as it has not done to date, then from my point of view there could be no democratic argument against it. But for that decision to be left to our next Prime Minister, elevated to that office by members of his own party and freed of any requirement to obtain the consent of Parliament, would be another matter altogether. Before the beginning of the current leadership campaign, the notion that Prorogation might be used for the express purpose of silencing Parliament on Brexit could safely have been dismissed as fantasy but, extraordinary though it may seem, that prospect has not been disavowed by the leading candidate and, if reports are to be believed, cannot even now be ruled out.

The situation is uniquely grave because if we are driven over the cliff on 31 October, there is no way back up. An event that occurs while Parliament is prorogued cannot simply be reversed once Parliament is sitting again. So even a short Prorogation, if suitably timed, would permanently deprive Parliament of its voice on this most significant of political issues. Advice to Her Majesty to prorogue Parliament in such circumstances would subvert the principle that the Government are accountable to Parliament and present the monarchy with a highly unwelcome dilemma: no one could safely predict the possible consequences. It is not surprising, therefore, that the Attorney-General is reported to have told Cabinet last month that Prorogation would be unconstitutional and improper. My noble friend Lord Pannick, who cannot be in his place today, described it on Monday as “unlawful” and “a constitutional outrage”.

The legal effects of Amendment 3 will no doubt depend on the circumstances. It would be a matter for any court that may be called on to consider the matter. Others of your Lordships are better placed to judge their political force, but that too would surely be substantial. The Minister helpfully accepted on Monday that it was right and proper for this House to find a means to hold the future leader of this country to account, but when challenged on his statement that,

“there are other means by which it can be done”,—[Official Report, 15/7/19; col. 38.]

explanation came there none. That put me in mind of Iris Murdoch, who wrote, in a rather different context, that we can pass,

“in a second from the time when it was too early to struggle to the time when it was too late to struggle”.

Your Lordships now have an opportunity to assert the necessary role of Parliament in these strange and alarming times. I invite your Lordships to do so by supporting Amendment 3.

[Viscount Hailsham (Con)]

I shall speak very briefly to Amendment 3A in this group, which is in my name. It might be for the convenience of the House if I say that it is not my intention to move this amendment, largely because it does not add substantially to the amendment in the name of the noble Lord who just spoke with great eloquence. Suffice it to say that I very much support his amendment and if he is minded to test the opinion of the House, I shall vote in favour of it.

[Lord Newby (LD)]

My Lords, I think everybody agrees that this is a very curious device and in many ways a very curious amendment. I am sure that the House of Commons and your Lordships’ House will look forward to receiving regular reports about the situation in respect of Northern Ireland; it might help move things forward very marginally. However, as the noble Lord, Lord Anderson, said, that is not why this amendment is being proposed. The amendment is considered necessary by him and me only because we face the constitutional outrage of a potential Prime Minister refusing to rule out proroguing Parliament to get through the most major public policy decision of our lifetimes without debate, because he knows he cannot win a vote in a debate. This is the activity of a banana republic, not the mother of parliaments; we should do whatever we can, however strange, to stop it. This is a clever, ingenious device with that in mind, and it has our full support.

Northern Ireland (Executive Formation) Bill

Viscount Hailsham Excerpts

Committee: 1st sitting (Hansard): House of Lords
Monday 15th July 2019 Lords Chamber

[Lord Anderson of Ipswich]

The noble Baroness makes another very good point. I refer to 1948 simply to say, first, that prorogation has been controversial in the past, and, secondly, that it pales into insignificance compared with what we are now asked to contemplate.

Those who contemplate prorogation not only are heedless of the sovereignty of Parliament but risk plunging the monarchy into the heart of an intense political dispute. We saw how this could happen in Canada in 2008, when the Governor General, as the representative of the Crown, was required to adjudicate on a request for prorogation that was widely seen to be politically motivated, and only granted it subject to an undertaking given by the Prime Minister. I appreciated the dry understatement of Catherine Haddon of the Institute for Government when she said last week:

“A constitutional showdown between Parliament and the executive of the order of the Civil War is definitely something that the palace would prefer not to be dragged into”—


but she made a serious point.

If agreed, these amendments will serve two purposes: the sending of a political message and the sharpening of a legal challenge such as that already mooted by Sir John Major, should it be needed as a last resort. My noble friend Lord Pannick made a powerful case in the Times last month for the proposition that the courts, if invited, would come to the rescue of parliamentary sovereignty, as they did on the basis of the noble Lord’s submissions in the Miller case. Over 30 years, I have learned to bet against the noble Lord only rarely and I would not do so on this occasion. One who has done so is the legal academic Robert Craig, who recently suggested that the courts would decline to intervene because,

“there is no particular statutory provision that would be frustrated by prorogation”.

To the extent that there may be merit in that view—and I accept that absolute certainty in this area is difficult to achieve—that is all the more reason for supporting these amendments.

I regret that it has been necessary to table them in the context of this Bill, but they will put beyond doubt the resistance of Parliament to an undemocratic and profoundly discreditable device. I beg to move.

[Viscount Hailsham (Con)]

My Lords, I rise very briefly to support the amendment which the noble Lord, Lord Anderson, has argued for so eloquently. This amendment, to which I set my name, has only one purpose: namely, to make it more difficult—

[Lord True (Con)]

My Lords, if I may, I tabled an amendment to this amendment, which I believe under procedure should be taken at the earliest opportunity.

[Viscount Hailsham]

I am very happy to sit down.

[The Countess of Mar (CB)]

My Lords, we are speaking to Amendment 6 at the moment. The amendment is to Amendment 7.

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[Viscount Hailsham]

I am very grateful to the noble Countess, Lady Mar, for her intervention. Perhaps I might revert to where I started.

I rise very briefly to support the amendment to which I was very happy to put my name, which was so clearly advocated by the noble Lord, Lord Anderson. As he said, its only purpose is to make it more difficult—impossible, I would like to think—for a Prime Minister to prorogue Parliament for an improper purpose: namely, to prevent the House of Commons from challenging, and perhaps overriding, the decisions of Ministers with regard to Brexit. The fact that in a parliamentary democracy we have to contemplate such a possibility is truly lamentable, especially when the party in office is the Conservative Party, which I have supported in and out of Parliament for 40 years, and my family has for much longer. But that is where Brexit and the personality of Mr Johnson have brought us.

Most Members of this House, not least those of us who have served in the House of Commons, know that such an action would subvert the foundations of parliamentary government. As the noble Lord reminded us, it would also involve the Monarchy in an intensely partisan controversy. We must take every proper and available step to frustrate that possibility. This amendment addresses that purpose, and it is in that spirit, and for that reason, that I commend it to your Lordships’ Committee.

[Lord Newby (LD)]

My Lords, I invite the noble Lord, Lord True, to speak. All amendments are in the same group, and although the noble Countess, Lady Mar, said that the Amendment 7 had not been moved, it has been spoken to. If the noble Lord, Lord True, wishes to speak now, that would be appropriate.

[Lord True]

I thank the noble Lord. I think it would be helpful for the House to hear the other side of the river speak, as it were—the minority that we are. I was not minded to take part in this Bill, though I am troubled by the high-handed intervention in Ulster affairs and other parts of the Bill by MPs in another place, and will be listening carefully to what my noble friends say later.

I tabled my amendment because I am concerned by the attempt to hijack a Northern Ireland Bill to—let us be blunt—stop the UK leaving the EU on 31 October or to weaken our negotiating position. It was a move instigated by my right honourable friends Mr Grieve and Sir Oliver Letwin. They were supported by the usual galère of referendum-deniers and pushed towards the line by the votes of more than 220 Labour MPs. Yes, Labour again: with 76% of the votes for Mr Grieve, Labour has been, since 2017, the single greatest political force obstructing Brexit.

This amendment does not touch the call for progress reports, but it prevents exaggerated machinery being added for repeated debates, which some have admitted is to stop Brexit on 31 October. Sir Oliver Letwin declared that these amendments would “prevent Prorogation”, and we have heard that argument today. But Mr Grieve freely admitted that his aim was to prevent Brexit on 31 October. Both rather arrogantly took it for granted that if they were defeated—as they were—your Lordships’ House would act as they instructed, and hey presto, here we are with Amendment 7. Your Lordships’ House is again invited to be the doormat for a defeated party in the other place.

The motive for all this is clear, whatever the pretence. One of the two men likely, though not certain, to become our next Prime Minister has said that he would honour the verdict of the referendum and take Britain out of the European Union on 31 October. The tablers of this amendment want to stop him. Some will tell us today, as we have heard already, “Oh, it is nothing to do with Brexit. It is all about protecting Parliament”—the very Parliament they wish to remain subjected to the superiority of EU law. Is it nothing to do with Brexit? I really do wonder.

The noble Lord, Lord Anderson of Ipswich, who spoke eloquently, states on his website that he is an EU law nerd and veteran of more than 150 cases before the ECJ. He argued that, even if Brexit were delayed, the British people did not need to be given the chance to vote in EU elections—“Do not let the people speak”. The noble Lord described as moving my noble friend Lord Hailsham’s words, which were that Brexit was an act of national self-harm that moved him to anger, shame and distress. We may safely conclude that the noble Lord, Lord Anderson, is not an enthusiast for Brexit.

My noble friend Lord Hailsham has always been open. From the outset, he declared his wish to frustrate Brexit, as did the noble Lord, Lord Newby. I do not know about other noble Lords, but I have never seen the name of the noble Lord, Lord Newby, on an amendment to do with the EU and concluded that it might be about advancing our exit. This amendment is designed to do one thing: to make it harder to leave the EU on 31 October. If, in the light of 17.4 million votes in a referendum and the result of the European elections, your Lordships’ House wishes to align itself with that objective, so be it. Our names will all be counted in the Division lists. Perhaps the days of this House will then also be counted.

The smokescreen of this amendment, as we have heard, is all about stopping Parliament being prorogued, so Parliament can have a say. Make no mistake that my right honourable friend Boris Johnson—as has been made clear by my noble friend Lord Hailsham—is the target of this, as he is the target of a relentless campaign of personal vilification. Mr Johnson, it is said, wants to prorogue Parliament to “force” Britain out of the EU. Mr Johnson, of course, has said no such thing, but we have since had the spectacle of a former Prime Minister, himself responsible for the longest political Prorogation in modern times, threatening legal action against one of his successors to prevent him giving considered advice to the sovereign. Is it not extraordinary for a former Prime Minister to argue that the duty to advise the Crown should be taken away from the elected Prime Minister and given to unelected judges?

We are now told that, seven days before seeing the sovereign, a Prime Minister must send a letter to Mishcon de Reya, which I gather is a law firm. I count myself fortunate to have had no dealings with it and, after this, I intend none. Who elected it? We were told that what a Prime Minister advises a sovereign must be subject to judicial review. What next? Will the Supreme Court require and subpoena transcripts of the weekly Audience to find out the purport of the advice the Prime Minister is giving? Will the Prime Minister’s advice have to be accompanied by an explanatory note from the noble Lord, Lord Pannick?

[Viscount Hailsham]

Will my noble friend tell your Lordships whether he favours suspending Parliament to prevent the House of Commons discussing, challenging and overriding the decision of Ministers? Where does he stand on this matter?

[Lord True]

I will come to Prorogation latter. It is reasonable to deploy an argument; it is also reasonable not to accept an imputed wish. Who can impute the purpose of a Prime Minister in advising on a Prorogation? I ask: will the Prime Minister’s advice have to be accompanied by an explanatory note from the noble Lord, Lord Pannick—who we understand has been retained in this matter—telling Her Majesty what she may lawfully hear and what is subject to JR by Mishcon de Reya?

The noble Baroness, Lady Hayter, said she is all for this procedure. Has she, or the noble and learned Lord, Lord Goldsmith—who will be speaking on the matter from the Front Bench—told her leader that? Can you imagine the hail of judicial reviews that would rain down on the Government, led by Mr Corbyn, and the advice he might tender Her Majesty about the use of the prerogative? “Ma’am, you must invite comrade President Maduro on a state visit, grant an honorary knighthood to Raúl Castro or appoint an ambassador to Hamas”. Will Mishcon de Reya ask for a letter about that advice?

--- Later in debate ---

[Lord Forsyth of Drumlean]

I recall hearing complaints not so long ago from the Front Bench of the noble Baroness that this Parliament should have been prorogued earlier because not enough opposition days were being provided and it had gone on too long. When Parliament should be prorogued is a matter for the Executive of the day. This amendment and debate are a distraction from the main issue we should be concerned about; in the case of this Bill, Northern Ireland and our Brexit negotiations, putting in place the necessary preparations—

[Viscount Hailsham]

Will my noble friend give way?

[Lord Forsyth of Drumlean]

May I just deal with one point first?

[Viscount Hailsham]

Of course, I am so sorry.

[Lord Forsyth of Drumlean]

We should be dealing with the series of arrangements that will need to be made when we leave the European Union on 31 October. I still believe it entirely possible that those people in Europe—we now have a new, slightly odd gang there—faced with the reality of a Prime Minister who is determined for us to leave, will perhaps see common sense and we will be able to get a negotiation. It would be a foolish person indeed who answered the question of the noble Baroness in the context of the forces we face.

[Viscount Hailsham]

My noble friend has not addressed the very question asked by the noble Baroness: that is, what does he think about the motive behind this? If Mr Johnson is proposing to prorogue Parliament to prevent the House of Commons challenging the decision of Ministers, does he think that is right?

[Lord Forsyth of Drumlean]

I do not think for a moment that he is, and I do not think that the House of Commons is able to challenge our leaving on 31 October unless it and this House pass the necessary legislation to do so. If this House is worried about the timetable and the opportunity to do so, that is a much bigger problem than the timetable for any Prorogation.

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[Baroness O'Loan]

My Lords, I cannot endorse the words of the noble Lord, Lord Trimble, too strongly. He is absolutely right. Consultation is essential if Northern Ireland is to have any sense that there was integrity in the intentions of the Government in what they have done in the past.

As I have told noble Lords, over the weekend I received 15,000 signatories to my letter to the Prime Minister; I keep getting texts, and the number seems to be rising by a thousand an hour. There is another side to this that I do not think noble Lords are aware of. Given that Northern Ireland voted not to leave the European Union, if we move towards Brexit and we simultaneously move to direct rule, many of the unionists in Northern Ireland—my noble colleagues may contradict me—would reject that. They will want a Northern Ireland Assembly; we are capable of governing ourselves in these devolved matters.

I know from what is written that the nationalist people of Northern Ireland would reject it utterly. For them, it would be the end of the Good Friday agreement; it would be the end of support from the British Government for the institutions of the Good Friday agreement; it would imperil our peace process. Equally, it would create a construct within which the reunification of Ireland would become rapidly more likely. If Northern Ireland is not allowed to govern itself and space is not made for the talks which need to take place, direct rule, which has been a very bad thing for Northern Ireland, will inevitably follow.

I say to noble Lords with a heavy heart that, as the noble and right reverend Lord, Lord Eames, said on Wednesday, they are walking on very sacred ground as they contemplate these issues. It is not just about abortion; it is about the whole devolved settlement, the integrity of government and the future peace and prosperity of all four parts of the United Kingdom.

[Viscount Hailsham]

My Lords, I rise very briefly to speak about Amendment 18A, a manuscript amendment standing in my name which forms part of this group. The sole purpose was to ensure that Parliament is sitting between 22 October and 31 October this year. The reason for that was articulated in the previous debate promoted by the noble Lord, Lord Anderson: to prevent an improper Prorogation of Parliament, for the reasons the noble Lord discussed. It has been grouped with these amendments. I have absolutely no intention of standing in the way of regulations to permit same-sex marriage. That is not my purpose. It was a procedural amendment, and your Lordships will doubtless be pleased to know that I do not intend to repeat the arguments I made in the previous debate or in any way to seek to bring forward for your Lordships’ active consideration Amendment 18A, because that matter was resolved in the second debate this Committee has had today.

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

Viscount Hailsham Excerpts

Tuesday 12th March 2019 Lords Chamber

[Lord Keen of Elie]

My Lords, I do not agree with the noble Lord, Lord Kerr, on the matter of alchemy. Nevertheless, I agree with much of what he had to say. These further agreements inject a greater element of urgency into the whole process that is to be carried on and underline that this process will be carried on in good faith. That being so, there remains the outlier risk that a solution will not be found by December 2020. We remain confident that it will be. But in the event that it is not, the backstop will continue for a period. Wherein lies the disaster?

[Viscount Hailsham (Con)]

Does my noble and learned friend agree that, if at the end of this week the House of Commons discusses a delay to the Brexit date, a short delay would be entirely useless? Does he agree that what is required is a substantial delay of the kind advocated by the noble Lords, Lord Kerr and Lord Hannay, or the noble Lord, Lord Armstrong yesterday? As existing members of the European Union, we could discuss and negotiate our future relations with the European Union either within or without. Does he agree that that does not necessarily involve Brexit or, necessarily, a further referendum? Indeed, it might involve a Government of national unity to negotiate.

Legal Aid, Sentencing and Punishment of Offenders Act 2012: Review

Viscount Hailsham Excerpts

Monday 12th November 2018 Lords Chamber

[Lord Keen of Elie]

My Lords, we are conscious of the importance of access to justice. I thank the noble Lord and those who sat with him on his commission for their contribution to the debate, but I will not anticipate the outcome of a review that will be published by the end of the year.

[Viscount Hailsham (Con)]

My Lords, I no longer practise at the criminal Bar, so I have no present interests to declare—but I know very many people who do, and I can tell my noble and learned friend that there is a real sense of crisis in the criminal Bar. Does my noble and learned friend accept that unless the Government urgently and fully address the anxieties expressed by the Criminal Bar Association—of which I was a member—and articulated fully in the book The Secret Barrister, there is a real danger that the independent criminal Bar will cease to exist, which would be a very great loss to the administration of justice in this country?

[Lord Keen of Elie]

My Lords, of course we have the highest regard for the independent criminal Bar and are concerned to ensure that it is sustained in a suitable way—but, again, I will not anticipate the outcome of the present review.

Northern Ireland: Legacy of the Troubles

Viscount Hailsham Excerpts

Wednesday 5th September 2018 Lords Chamber

[Viscount Hailsham (Con)]

My Lords, in the two minutes available to me, I can only summarise my conclusions rather than set out the detail of my reasons. I do not want to see members of the security services prosecuted or, indeed, sued in respect of any killing or wounding which they were involved in during the Troubles and prior to the Good Friday agreement. I do not think that it is possible politically or in law to make a distinction between the security services and former terrorists or, indeed, within those classes, and I therefore conclude that there should be a statutory bar on all Trouble-related killings or woundings committed prior to the Good Friday agreement. That should be statutory, not administrative, and could take the form of a statute of limitations, an Act of oblivion or a statutory amnesty and it should apply to both criminal and civil proceedings. I entirely agree with the noble Lord, Lord Dannatt, when he says that it is likely that members of the security forces would be targeted for legal proceedings to a disproportionate extent. I would find that deeply offensive.

I also find it unconscionable—indeed, an abuse of process—that members of the security forces could be prosecuted or sued, while former terrorists now either hold or have held prominent positions in the political life of Northern Ireland and have participated in the Administration of that Province. It is for those reasons that if a Bill is brought forward, I shall certainly vote for a statutory bar of the kind I have identified and, if necessary, I will trigger such a vote.

Privately Financed Prisons

Viscount Hailsham Excerpts

Wednesday 27th June 2018 Lords Chamber

[Viscount Hailsham (Con)]

My Lords, I welcome what my noble friend said about contracts. Will he ensure that contracts make explicit and enforceable provision for useful out-of-cell activities?

[Lord Keen of Elie]

My Lords, individual terms of contract make provision for appropriate facilities to be made available to those prisoners who are in private facilities. There is a system of management oversight by the Ministry with regard to the discharge of those obligations by private providers.

Civil Liability Bill [HL]

Viscount Hailsham Excerpts

Report stage (Hansard): House of Lords
Tuesday 12th June 2018 Lords Chamber

I make only one further point. The provision in the Government’s proposals for an uplift in exceptional circumstances only, and limited to 20%, is far too restrictive. Exceptional circumstances have been regularly held by the courts to require a set of circumstances that takes a case well outside the norm—

[Viscount Hailsham (Con)]

Will the noble Lord also observe that this clause is only permissive and does not require the Lord Chancellor to make an uplift?

[Lord Marks of Henley-on-Thames]

My Lords, I am very grateful for that intervention, which is absolutely right. The point about an uplift is that, if it is just, it should be given. We say that there may be a whole range of circumstances where it is clear that an award greater than the tariff figure is justified. We would regard it as far better than insisting on a finding of exceptional circumstances to permit the courts, as per our Amendment 20, to increase a tariff award where satisfied simply that it would be in the interests of justice to do so. Were Amendment 18 not carried so that Clause 2 survived, we would propose to pursue that amendment to improve Clause 3, which would then remain.

[Viscount Hailsham]

My Lords, I shall comment on an amendment that has not been spoken to—Amendment 12, which I think will be articulated by the noble and learned Lord, Lord Judge—and, more precisely, on the proposed new clauses, spoken to so admirably by the noble and learned Lord, Lord Woolf.

Amendment 12 seems manifestly sensible. Of course the Lord Chief Justice should be consulted by the Lord Chancellor. That is particularly important when one bears in mind that many Lord Chancellors nowadays are not lawyers and will therefore be entirely dependent on the advice of their officials, who might themselves not be lawyers. Therefore, it seems admirable that we should put into statute a requirement that the Lord Chief Justice be consulted. If the Minister says, “But of course he will be”, all I can say is that Ministers sometimes have a curious habit of forgetting the obvious and their obligations. For example, I was rather surprised about three weeks ago when the noble Lord, Lord Callanan, during the debate on Brexit, said that Ministers had never used the phrase “meaningful vote”. That was a curious lapse of mind, and it may well be that Lord Chancellors will forget the obligation to consult the Lord Chief Justice. Therefore, I am all in favour of the amendment and I hope the Government will concede the point.

Perhaps I may move more directly to the proposed new clause in the name of the noble and learned Lord, Lord Woolf, and Amendment 18. I do not have the experience of the noble and learned Lord but for many years I practised as a personal injury lawyer. I do not do so any more, so there is no need for me to identify an interest, but I used to do a lot of work in personal injury law. Indeed, I was instructed by my noble friend Lord Hunt and I was very grateful for the briefs in those days. Back then, we were informed about the level of damages by the guidance of the Court of Appeal and by the reports, which in those days were available in the current law citator. There really was no difficulty in operating within the parameters set by the judiciary.

That takes me to my objections to what the Government are proposing. The first is a very deep-seated reluctance to see the Executive or Parliament interfering with essentially judicial positions. I am bound to say that that informed my real reservations about the determination of Parliament to impose tariffs in homicide cases, set out in a schedule to the Act. I deprecated that. This is another example which we should be very cautious about. We need to ask ourselves what the essential characteristic of justice is. It is to respond to the individual and varied cases that appear before the courts. The effect of imposing a cap of this kind is to prevent the trial judge being able to respond to the particular aspects of the case in front of him or her, and in my view that is, by definition, unfair.

There is a further point that I venture to intrude on the observations of the noble Lord, Lord Marks. It is perfectly true that the Bill provides for an uplift, but the uplift requirement is discretionary on the Lord Chancellor; it is not mandatory. The Lord Chancellor may provide for an uplift in regulations but he or she does not have to do so.

I am sorry to be pedantic about this, but your Lordships will know that on many occasions I have spoken in pretty derogatory terms about the statutory instrument process that we have. This is another example. Let me acknowledge at once that we are doing it by the affirmative procedure, which is a lot better than doing it by the negative procedure, but the cap will be determined by statutory instrument. Who, pray, is going to set the cap? I can tell you: it will be officials. Unless the Minister of the day is particularly well informed and/or intrusive, the cap will be determined by officials without interference. I am bound to say that I find that a very unpleasing prospect.

If, therefore, the noble and learned Lord, Lord Woolf, is minded to press his amendment and his proposed new clause and to test the opinion of the House, unless my noble and learned friend is even more persuasive than he customarily is, I anticipate that I will support the noble and learned Lord.

[Lord Judge (CB)]

My Lords, it is a great comfort to hear the noble Viscount, Lord Hailsham, say that he agrees with what I am going to say before he has heard it. Now, perhaps he will not mind hearing it.

We have to face the reality that there are a huge number of fraudulent claims for damages arising from alleged whiplash injuries sustained in road traffic accidents—far too many of them. We also have to remember that a large number of perfectly honest claims are made as a result of injuries suffered in road traffic accidents. We have to find a pragmatic solution to the problem of fraudulent claims, given that the cost of contesting them in court tends hugely to outweigh the amount of money that is at stake if the claim is not substantial. Whiplash injury cases, in the way that will now be defined in the Bill, are not cases that attract vast sums of money in damages. I particularly welcome the requirement of medical evidence, which provides some level of protection against the fraudulent. I welcome also the prohibition on cold calling, and I think there is something in the provision for uplift.

Can we be clear, though, that some claims absolutely reek of fraud? I suspect many of us know, for example, of a case where, at traffic lights with two cars in a line and none behind, the front car moves forward across the junction, not too fast, and is followed by the second car. Then, suddenly, the front car slams on its breaks for absolutely no reason, resulting in an impact. I am certainly aware of at least one case—perhaps we all are. It was not a case in court but was narrated to me by a friend, who was rather mortified to find that, after a small accident, the recipient of the injuries in the other car came out of the car saying, “Whiplash, whiplash!”, and had no other word of English to speak. He then found that his insurance company had received claims for no less than four people, when there was only one person in the car. As I say, these cases reek of dishonesty.

I hope that, if this part of the Bill is enacted, insurance companies will continue to remember that before a claim can be made for whiplash injuries, there has to be a claim and the claim should be contested as and when there is evidence of fraud. They cannot just sit back, otherwise they will find themselves paying out more and more. Some cases reek of fraud and they should be contested, and the easy way of doing nothing much more than that should be avoided. The police should be informed and the evidence should be handed to them so that at least they can investigate. I know that they have many other things to do, but a few knocks on doors and the word would go around the fraudulent area of this particular universe saying, “Hang on, there’s something going on here”. That too might discourage the odd dishonest claim.

What I cannot accept is a solution which means that a dishonest claim is handled in exactly the same way as an honest one. We cannot have dishonesty informing the way in which those who have suffered genuine injuries are dealt with. That is simply not justice. There should not be any idea that an honest claim for a whiplash injury made by the victim of a car accident should be less well compensated than an identical injury suffered by someone at work. There are all sorts of ways in which injuries can be caused; indeed, a slip in the street or a fall down the stairs can result in a whiplash injury, so there are many perfectly ordinary ways in which these injuries can be sustained. We need a process that produces the same result for the same victim who has honestly suffered the same consequences.

Worboys Case and the Parole Board

Viscount Hailsham Excerpts

Wednesday 28th March 2018 Lords Chamber

[Lord Keen of Elie]

I note the observations of the noble Lord. Clearly, the role of the CPS in the conduct of the prosecution of Worboys is a matter of some concern. The CPS takes these decisions independently and clearly, that independence has to be respected. Worboys was the subject of an IPP sentence, albeit one that was liable to open the door to review before the Parole Board. I cannot give an undertaking at this time of any formal inquiry into the role of the CPS with regard to the original prosecution decisions that were taken, but I note what the noble Lord has said.

[Viscount Hailsham (Con)]

My Lords, I welcome what my noble and learned friend has said about the action that has been taken. With regard to enhancing the role of the Secretary of State at the meetings of the Parole Board, I suggest that in complex cases he gives consideration to using a special counsel, who might, after all, also be able to articulate the views of the victims. I remind him of the practice that was adopted when I was a very junior Minister in the Home Office reviewing the tariffs in life sentence cases, which was to obtain the up-to-date observations of the trial judge, if available—and, if I may say so, the Lord Chief Justice.

[Lord Keen of Elie]

I note the observations of my noble friend Lord Hailsham. Clearly, these considerations will be taken into account in the review process that is being carried out.

European Union (Withdrawal) Bill

Viscount Hailsham Excerpts

Committee: 8th sitting (Hansard - continued): House of Lords
Monday 19th March 2018 Lords Chamber

[Baroness Hayter of Kentish Town (Lab)]

My Lords, we support that. It is particularly important for the new SIs that will deal with functions hitherto carried out by EU bodies and which therefore will not be part of the normal, ongoing scrutiny that may have happened for many years. It is particularly important that these should be by only the affirmative procedure, as the word “modification” can only mean an increase.

[Viscount Hailsham (Con)]

In order to indicate cross-party support, I will say that I support this amendment.

[Lord Mackay of Clashfern]

My Lords, I am just wondering whether the noble Lord who moved this amendment is thinking that the House of Lords should not reject an SI outright once it has been confirmed by the House of Commons but should ask that it be reconsidered, and whether that should be the only option apart from approving it.

--- Later in debate ---

[Lord Wigley]

My Lords, I am delighted to support Amendment 247 in the name of the noble Baroness, Lady McIntosh, to which my name is attached. This is a pragmatic amendment, intended to make the provisions of the Bill more workable. As such, it should be acceptable to noble Lords on both sides of the Brexit argument, and perhaps even to the Government. Given that so much legislation is moving over to being enacted by statutory instrument, the case for looking into the ways of making instruments amendable now becomes an urgent challenge and will become increasingly so as the Bill goes forward.

As the noble Baroness, Lady McIntosh, spelled out the detail of the amendment, including very helpfully the precedents, perhaps I could just give an example of where the power to amend SIs would be useful. Take, for example, Clause 7(6)(b), which enables Ministers to establish new public bodies to undertake functions now carried out by the EU. The provision of such a power by order would require the relevant SI to specify precise details for the workings of the new body, such as its objectives, duties, powers, members, resources and accountability. Parliament might be happy for such a new body to be established but might want to change some of those details, which it could not do under our current procedures and which could only be triggered by rejecting the SI in its entirety, thereby subjecting the process to potentially long delays—exactly what the Government want to try to avoid. Having a process to allow amendment would be swifter and provide more acceptable legislation.

These powers would be used in exceptional circumstances, and it is not proposed that they should cover other Brexit legislation—although a strong argument could be made along those lines. But given the ominously growing use of unamendable orders to force legislative change through Parliament, there is a case for undertaking a far more rigorous review of the statutory instrument system. Since this facility could save time, which may be of the essence in regard to Brexit legislation, I would have thought that Amendment 247 should appeal to both sides, to Brexiters and remainers alike. I commend it to the Committee.

[Viscount Hailsham]

My Lords, I shall speak to Amendment 248 in my name. Because of the lateness of the hour I will speak briefly, but throughout these debates the Committee has repeatedly expressed concern about the scope and nature of the SI procedure. Time and again, noble Lords in Committee have said, “This is not amendable. We cannot change what is proposed. This is government by fiat and declaration”. The noble Lord, Lord Beith, and I spent many years in the House of Commons, where we lamented the fact that statutory instruments could not be amended. It is a great defect in our constitutional process. Statutory instruments are a form of legislation; in fact, they are a form of legislation by fiat or declaration—and that is an extraordinary thing in a parliamentary democracy.

The amendments that I have tabled have just two objectives: one is to assert the primacy of the House of Commons, which must have primacy in these matters, and the other is to say that legislation should be amendable. As two propositions, they are wholly unobjectionable. What are the objections, if there be any? Actually, they are the objections of the Executive throughout the centuries: it makes life for the Government rather more difficult. As a parliamentarian, I am bound to say that I do not find that a very impressive argument.