Terrorist Offenders (Restriction of Early Release) Bill
Lord Anderson of Ipswich ExcerptsMonday 24th February 2020
(4 years, 2 months ago)
Lords ChamberRead Full debate Terrorist Offenders (Restriction of Early Release) Act 2020 View all Terrorist Offenders (Restriction of Early Release) Act 2020 Debates Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: HL Bill 99-I Marshalled list for Committee - (21 Feb 2020)
Member’s explanatory statement
This amendment creates a distinction between sentences imposed before and after this section comes into force. Prisoners sentenced after this section comes into force are not eligible for release until they have served two-thirds of their sentence. For this category of prisoner, there is no change from what the Bill currently provides.
Lord Anderson of Ipswich (CB)
My Lords, though in common with some others of your Lordships, I regret the highly accelerated way in which this Bill has been handled, the compressed timetable has one very considerable advantage: the excellent debate we have just had at Second Reading, much of it touching on the subject matter of these exploratory amendments, is still ringing in our ears. For that reason, there seems little point in trying to repeat the full glories of that debate at this hour of the evening, for the battle lines are pretty clear.
Every speaker who addressed the issue, as the Minister rightly said, sees the need for a degree of retrospective effect to protect the public: the injection of Parole Board review into the sentences of existing prisoners, despite the fact that those prisoners will have been assured by the judge who sentenced them that they would be automatically released by the halfway stage of their sentences. None of us is prepared to see them released before the end of their sentence without the Parole Board’s say-so.
The issue raised by Amendments 1 and 2 which relate to England and Wales, and Amendment 4 which relates to Scotland, is whether we should go further into the dangerous waters of retrospectivity, as the Bill in its unamended form would do, by providing as a universal rule that not even Parole Board scrutiny will be considered until the two-thirds point of the sentence. This—let us not forget—is in relation to prisoners who are at the bottom end of the terrorism scale where seriousness is concerned and who are not assessed as dangerous by the trial judge or they would have been on a different and more onerous type of sentence.
On this issue, the European Court of Human Rights seems to be a sideshow. As the noble Lord, Lord Pannick, said—and I agree with him—it is not likely to be contravened by whatever we do. What we need to ask is whether sufficiently cogent reasons have been advanced to displace, in the interests of public safety, the normal presumption that a prisoner’s sentence will not be changed to his disadvantage after it has been passed.
On that issue, I will not summarise the respective arguments of what the noble Baroness, Lady Chakrabarti, described, perhaps optimistically, as two fantasy football teams of lawyers, although I would correct her in one respect by pointing out that the noble Lord, Lord Pannick, as I have confirmed with him, is for these purposes a member of the squad supporting these amendments, along with the former Independent Reviewer of Terrorism Legislation, the noble Lord, Lord Carlile, the former law officers, the noble and learned Lords, Lord Falconer and Lord Garnier, and the others who made such pertinent contributions, including the noble Baroness, Lady Meacher, and my fellow signatory, the noble Lord, Lord Beith. The noble Lord, Lord Hogan-Howe, although not a member of the team, expressed his discomfort about the way the Bill has been written.
The Minister advanced two reasons in his all-Peers letter which I dealt with in opening, and then two more came along as he wound up the debate. With great respect to him, they were not obviously more convincing. He spoke first of consistency with sentencing regimes where Parole Board consideration comes at the two-thirds stage, but the point goes nowhere for there are plenty of other regimes at which Parole Board consideration happens at half time. He spoke of a breathing space, but the releases that are due in the next few days and weeks—the ones that we are told make this Bill so urgent—are of prisoners who are well past both the half way and the two-thirds point, so the application of one test rather than the other makes no difference in practice and gives the Parole Board no additional scope to draw breath. He spoke of public confidence, but that is a self-serving argument; it is about appearance, not about a real and objective justification. He also spoke of a further period of incapacitation as being an advantage of the scheme in the Bill, but if these amendments were to be accepted, no one would be released at half time unless the Parole Board considered them to be safe, so the only prisoners who will be further incapacitated by the provisions that we seek to amend are those who, in the assessment of the Parole Board, could safely be released.
That, I suspect, is more than enough from me. I beg to move.
Lord Garnier (Con)
My Lords, there was never any possibility of my becoming a member of the Court of Appeal, but had I been a member, the job I would most like to have had is that of the third member of the court who says, “I have read the judgment of my learned friend. I agree and I have nothing further to add.” I have heard what my friend the noble Lord, Lord Anderson, has said both at Second Reading and just now and I have nothing further to add save one point.
During the course of the Second Reading debate, instead of saying “two-thirds” I said “three-quarters”. I do not suppose that that made much difference to the way in which the House considered the matter, and the noble Lord, Lord Anderson, has made the points that need to be made. The one thing I have learned in politics is that it is possible to win the argument and to lose the vote, and it is possible to make winning arguments and sensibly to avoid a vote. For my part, I think that the noble Lord, Lord Anderson, has made and won the arguments, but whether he moves this issue to a vote is another matter. However, he has certainly won the moral victory.
Lord Anderson of Ipswich
I am a little nervous of senior political figures, however eminent, saying that they have won the argument unless they have also shown themselves capable of winning a vote. Despite that, we have had two excellent debates, both at Second Reading and just now, on the subject matter of these amendments. Extremely eminent people have lined up on both sides. I think someone tuning in to Parliament TV might have thought at times that they were watching Supreme Court TV but, none the less, points have been made and markers have been well and truly laid down for the forthcoming terrorism sentencing Bill and, indeed, for future Bills.
It seems to me that moving an amendment from the Cross Benches is a bit like crossing the road in that it is prudent to look very carefully to the left and to the right. As I have been doing that over the past few minutes, it has seemed very clear to me that the traffic is a great deal heavier on the government side and I have drawn the necessary conclusions. My heartfelt thanks go to all noble Lords who have spoken in this debate, but I shall be seeking leave to withdraw the amendment.
Lord Marks of Henley-on-Thames (LD)
My Lords, my Amendments 3 and 5 seek a review of the working of this legislation one year after the Bill comes into force. Amendment 3 is concerned with Clauses 1 and 2, relating to England and Wales, while Amendment 5 is concerned with Clauses 3 and 4, relating to Scotland.
I suggest it is always sensible to review the working of legislation after it has come into force. That usually occurs in the case of non-urgent legislation after a period of years. However, review is even more important and urgent in the case of emergency legislation. This Bill cries out for a specific review of how its provisions are working, precisely because it is being put through Parliament as emergency legislation. We have had no time for consultation or proper scrutiny—one day in the other place and one day here. The result has been that a number of questions that have arisen today have been inadequately considered, so that the Government have no answers to them. That is not a criticism of the noble and learned Lord, nor of the Government in general. It is the inevitable consequence of the haste with which we are passing this Bill.
We have heard today from noble Lords around the House about the risks posed by the lack of measures to improve deradicalisation and rehabilitation in prisons, and of the risks of radicalisation in prison of non-terrorists. We have also heard of the dangers of legislation that in practice, even if not in law—as to which there has been much argument—has retrospective effect. I agree with the noble Lord, Lord Pannick—which I have not always done today—in his point that this Bill involves keeping in custody terrorist prisoners who have served half their sentences and who would have been released had they had a safety assessment by the Parole Board at that point.
I have discerned no indication from the Government that the point made by the noble Lord, Lord Pannick, has been considered by them. The noble Lord made his point in the context of serving prisoners, whose time in custody is to be increased by the enactment of this legislation. However, this is presented, rightly, as a public safety Bill, and the point might also be relevant in relation to some terrorist offenders, not yet sentenced and probably at the lower end of the scale, who would plainly have a better chance of rehabilitation if released following the halfway point on a favourable Parole Board safety assessment.
Then there was the argument put forward by the noble Baroness, Lady Meacher, that a breathing space could be secured by interposing a Parole Board safety assessment, when it can be prepared, but before a release following the halfway point and such an assessment, and before the two-thirds point. That, again, was an argument that the Government could not meet.
Those are all concerns that cry out for review because the emergency treatment of this Bill has cut its consideration to the bone; yet, far from accepting the need for an urgent review, the Government’s position is unclear, inconsistent and, bluntly, all over the place. At paragraph 58 of their impact assessment the Government wrote:
“In the normal way, the … Bill will be subject to a post-legislative review to determine whether this legislation is working in practice as intended. This will take place between three and five years following Royal Assent.”
Therefore, there will be a review but very late. In contradiction to that position, in the Explanatory Notes, the Government say the following at paragraph 16, in question-and-answer form, on issues raised by fast-track legislation. The question is:
“Are mechanisms for effective post-legislative scrutiny and review in place? If not, why does the Government judge that their inclusion is not appropriate?”
The Government’s answer is:
“No post-legislative scrutiny is planned. However, the Government intends to introduce a Counter-Terrorism (Sentencing and Release) Bill later in this Session.”
However, we do not know what will be in that Bill, and it does not seem to answer the need for a specific review of the working of this Bill.
Today I have been told by the Government that they are not prepared to agree to a review because the independent reviewer is already engaged upon his review of the Multi Agency Public Protection Arrangements —the so-called MAPPA—and the release and supervision arrangements will inevitably be included in that. Also, it is to be expected—and the independent reviewer, Jonathan Hall QC, has confirmed—that he will scrutinise this legislation in his regular annual review. I am sure that that is so, and it is indeed very welcome, but neither of the independent reviewer’s reviews will be specifically directed to the efficacy or merit of the provisions of this legislation. They cannot therefore take the place of proper parliamentary scrutiny, which we have been denied. It is an inappropriate treatment of Parliament to attempt to piggyback post-legislative scrutiny of this Bill on reviews conducted for a separate and different purpose, however good those reviews might be expected to be.
Our amendments would require the Government to commission a review by an independent professional, whose appointment would be made in consultation with the Independent Reviewer of Terrorism Legislation. No one has seriously challenged the mechanism of our proposed review. I beg to move.
Lord Anderson of Ipswich
My Lords, I want to pick up on the point just made by the noble Lord, Lord Marks, about the independent reviewer. As a former independent reviewer myself, I am temperamentally rather inclined to the merits of independent review. However, in his note of 19 February on this Bill, Jonathan Hall said:
“I consider that the effect of sentences passed under the Terrorism Acts falls within my remit as Independent Reviewer of Terrorism Legislation, and therefore I would propose to report on the impact of these changes (and of the changes likely to be made by the more sizeable Counter-Terrorism Sentencing Bill later in the year) in one of my forthcoming annual reports, most likely my report on the Terrorism Acts in 2020.”
Perhaps I may ask the Minister, when he responds, to confirm whether it is his impression, as it is mine, that reviews of that nature fall within the existing remit of the independent reviewer. Perhaps I may also ask the noble Lord, Lord Marks, to comment on whether, in the light of that fact, his amendment will really add anything at all.
Viscount Hailsham
My Lords, I rise very briefly to express my views on this amendment. I have a lot of sympathy in general with the proposition that we need a review. However, I cannot support it on this occasion for two reasons.
The first is, I admit, wholly pragmatic; this is going to go nowhere. This matter was discussed in the House of Commons. The noble Lord, Lord Marks, will know that there were two amendments, creating a new Clause 1 and a new Clause 3. The latter in the House of Commons was in exactly the same terms as the noble Lord’s amendment and was barely discussed. I think that new Clause 1, which was a Labour Party amendment, also received no effective discussion. So it will not go anywhere, and I personally am not in favour of parliamentary ping-pong on this matter, rather for the reasons advanced by my noble friend Lord Cormack.
The second reason is rather longer: this does not go nearly far enough. Indeed, such a review could stand in the way of the kind of review that I would hope to persuade your Lordships is desirable. We have a counterterrorism and sentencing Bill coming forward. For that purpose, it is absolutely essential that there is very wide consultation prior to the consideration by Parliament of that Bill. That could be called a review but is essentially a consultation, and it has to address at least four substantive matters.
First, there is the complexity of the existing sentencing and sentence arrangements. These were described very eloquently by the noble and learned Lord, Lord Judge. It is a hugely complex area. There is huge scope for consolidation and simplification. That should be addressed in a pre-Bill consultation process.
Secondly, we need to know much more about how terrorism prisoners are being managed in the prison estate, and in particular the degree to which Mr Acheson’s actual recommendations are being implemented. To the extent that they are not, we need to know the reasons why.
Thirdly, almost everybody who has spoken in these three debates has welcomed the Parole Board filter that is being introduced. But the Parole Board can only act on information that it receives. It is absolutely essential that there is provision within the prison system for making suitable information available. That means a whole range of things, such as having experienced probation officers; having experienced prison officers —which is very important, because too many are retiring and being replaced by very young ones; appropriate courses; meaningful out-of-cell activity; and not churning prisoners from prison to prison within the estate. We have to know about all of this. The noble Lord, Lord Ramsbotham, has made this point on many occasions. Provision of all of these things in prisons is lamentable. We are going to see really large sums of money being dedicated to the Prison Service. But if the Government are serious about increasing the number of prisons, the money will actually go on buildings, not to the provision of the courses and information that will be absolutely essential to enable the Parole Board to make an effective decision.
My last point is that, down the track, the Parole Board will release prisoners who go on to commit very serious offences—probably multiple murder. It will almost certainly happen and will be a tragedy. At that point, there will be immense public opinion calling for prisoners to be kept in prison indeterminately. If I may say so, that is the point that my noble friend Lord Cormack was addressing. My point is that that pressure will arise. I personally believe that it may be necessary to introduce some form of post-sentence control-order process, as mentioned by the noble Lord, Lord Macdonald. That may be necessary, but I think it should take the form more of the old control-order regime, rather than indeterminate sentences of the kind identified by my noble friend Lord Cormack.
Whatever the case, we need to consider it now, not in the context of emergency legislation. If there is emergency legislation, there will be immense pressure for indeterminate sentences, and I have a very strong feeling that that is profoundly wrong and that we should not do it. The consultation that will precede the introduction of the counterterrorism and sentencing Bill should address what happens if the Parole Board does release offenders who go on to commit multiple murder. It is much better to do this over a slightly longer period, without the urgency of emergency legislation, than to do it in the latter context.
Therefore, I say to the noble Lord, Lord Marks, that I am not against reviews, but I think his review is far too narrow and could stand in the way of the much bigger review that I think is essential.
Terrorist Offenders (Restriction of Early Release) Bill
Lord Anderson of Ipswich ExcerptsMonday 24th February 2020
(4 years, 2 months ago)
Lords ChamberRead Full debate Terrorist Offenders (Restriction of Early Release) Act 2020 View all Terrorist Offenders (Restriction of Early Release) Act 2020 Debates Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: HL Bill 99-I Marshalled list for Committee - (21 Feb 2020)
Lord Anderson of Ipswich (CB)
My Lords, we are here because of the brutal and despicable knife attacks committed recently by former terrorist prisoners in Fishmongers’ Hall and in Streatham. Given the prominence of such attacks in the national consciousness, a political reaction is inevitable and wholly understandable, but let us not forget that attacks by former prisoners, though an ever-present threat, are, thankfully, unusual. As the Minister recently informed me in a Written Answer—and I thank him for that—of the 196 prisoners in Great Britain convicted of terrorism-related offences and released between 2013 and 2019, only six, just 3%, have been convicted since their release of further such offences. Indeed, scholars tell us that low recidivism rates are characteristic of terrorist offenders across the western world.
Urgent and piecemeal legislation of this kind, as the noble and learned Lord, Lord Judge, has said, rarely makes for optimal results. Even after this Bill becomes law, non-terrorist offenders subject to standard determinate sentences will continue to be released automatically at the halfway point, despite far higher recidivism rates. The differential treatment of terrorist and non-terrorist offenders and improvements to the bewildering variety of regimes for sentencing terrorists would merit a reflective debate. Given the timetable for this Bill, I fear that there will not be time for that.
Let me accept the premise of the Bill that terrorist offenders should not automatically be released before the end of their custodial term, and focus on four detailed matters, of which I put the Minister on notice in a letter of last Tuesday and on which I look forward to hearing his response at the end of this debate.
First, there is the question of its retrospective application to existing prisoners. There is force, as the noble Lord, Lord Pannick, said, in the Government’s position that the Bill does not contravene Article 7 of the European Convention on Human Rights. However, just because we can do something does not mean that we should. It is a long-established principle of our law, expressed judicially by no less an authority than the noble and learned Lord, Lord Brown of Eaton-under-Heywood, that,
“existing prisoners should not be adversely affected by changes in the sentencing regime after their conviction”.
That principle was given effect, as has been said, only a few weeks ago, when existing prisoners were exempted from a change to the release point for serious violent and sexual offenders under Article 5(a) of the Release of Prisoners (Alteration of Relevant Proportion of Sentence) Order 2019.
I accept that recent events and the risk of copycat attacks are enough to justify Parole Board involvement, even in the case of prisoners already sentenced. However, I echo the noble and learned Lord, Lord Falconer, in asking what additional purpose is served by moving the first possible release of existing prisoners from the halfway to the two-thirds point of the sentence. We know that this will result in the continued incarceration, without regard to their personal circumstances, of some prisoners who were sentenced on the basis that they are not dangerous and pose no continuing threat to the public. Those prisoners were told by the sentencing judge that they would be released at the halfway point. What purpose is served by delaying their Parole Board assessment any longer? The point might appear a narrow one, but it is of real consequence for the liberty of the individual, particularly if this departure from established legal principle is to become a precedent. Therefore, I have tabled three amendments in the hope that they will elicit from the Government more persuasive justification for this feature of the Bill than has been advanced to date.
Secondly, there is the non-application of the Bill to Northern Ireland. Naomi Long, Minister of Justice in the Northern Ireland Executive, said last week in the Assembly that in her opinion there was no barrier to the legislation being applied UK-wide and that this was her preference because she was concerned about what she called
“the risk of a two-tier system”
within the UK when it comes to the paroling of terrorist prisoners. I am grateful to the Minister, the noble Baroness, Lady Williams, for meeting me to talk about that, but can the noble and learned Lord, Lord Keen, tell us whether the intention is in due course to extend the provisions of the Bill to Northern Ireland, and, if not, why not?
Thirdly, there is the issue of how to manage the risk from offenders released at the end of their sentences. On 22 January, in the debate on the order that I have already referred to, the noble and learned Lord the Minister rightly said:
“It is crucial that when someone is given a custodial sentence, they spend part of this sentence under supervision in the community.”—[Official Report, 22/1/20; col. 1115.]
How is that principle to be given effect in the case of a prisoner who, under this Bill, will reach the end of his sentence without the Parole Board concluding that he can be safely released?
Reference is made to TPIMs: powerful instruments which, since their welcome revision in 2015—in which I should declare an interest—have provided for all the restrictive measures previously associated with control orders. However, as of 31 August 2019, only three were in force. Why so few? Are they too cumbersome? Are they being applied as flexibly as the law permits? Is the Minister satisfied that such measures are an adequate substitute for the period of release on licence that my successor as Independent Reviewer of Terrorism Legislation, Jonathan Hall QC, suggested last week should be there for all terrorist prisoners, including those on determinate sentences, in the interests of public protection?
Fourthly and finally, it is unfortunate that we should be debating terrorism legislation without the latest annual report of Jonathan Hall QC. I understand that his report was submitted to the Home Office on 7 November last year. All fact-checking and security checking was completed by 10 January. There is an obligation on the Home Secretary under Section 36(5) of the Terrorism Act 2006 to lay a copy of this annual report before Parliament “on receiving” it and
“as soon as the Secretary of State is satisfied that doing so will not prejudice any criminal proceedings”,
which is not an issue here. In the circumstances, it seems that the Home Secretary is under a legal obligation to publish that report forthwith; it is simply not a matter for discretion. The whole point of the independent reviewer, going back as far as the 1970s, is to inform those of us who are expected to pass laws in this heavily classified area about how the existing laws are operating. Can the Minister confirm the legal position as I have outlined it and ensure that we have the independent reviewer’s report straightaway and in good time for the further Bill that he referred to?
European Union (Withdrawal Agreement) Bill
Lord Anderson of Ipswich ExcerptsWednesday 15th January 2020
(4 years, 4 months ago)
Lords ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: HL Bill 16-III Third marshalled list for Committee - (15 Jan 2020)
Lord Anderson of Ipswich (CB)
My Lords, I declare an interest as a litigator over 30 years of European law issues for whom these paragraphs and the legal uncertainty they unleash bring the prospect of endless work and riches as yet undreamed of. None the less, I put my name to the amendments, which of course will do nothing to obstruct or delay the Brexit that will occur on 31 January.
At Second Reading, I described another clause of the Bill as “Henry VIII on steroids”, but even that description is hardly strong enough for new subsection (5A)(b). That would allow the Minister, by regulations, to decide the extent to which, and the circumstances in which, our courts are to consider themselves bound by the law of the land, whether in the form of retained EU case law or retained domestic case law that relates to it. If Parliament is asked to change retained EU law, we will debate it and no doubt find a way to do it. Taking back control of our laws is one of the principal points of Brexit and, for my part, I hope to play a constructive role in that process. But to stand by and see these law-changing powers given to Ministers is quite another matter.
European law, no less than our own, is contained to a significant extent in the judgments and interpretations of the courts—what in the domestic context we refer to as principles of common law. If Ministers were free to remove the binding force of principles that they did not like, they could selectively neuter the protections given by law to workers, consumers, disadvantaged groups and the environment. Such a power in the Executive to interfere with the law declared by the courts, including the courts of this country, has no precedent that I know of. It would also cause uncertainty with effect from now, because no one can predict which parts of retained EU law will be changed over the year ahead or how the structure of what remains will react when a load-bearing element is removed.
Alarming in a different way is new subsection (5A)(c), on which the noble Lord, Lord Beith, began his remarks. Courts could be licensed under this provision to make their own departures from retained EU case law on conditions that Ministers could specify. As Sir Bob Neill explained in the Commons, that is a recipe for uncertainty, confusion and opportunistic litigation on a grand scale.
The Minister will, I anticipate, encourage us not to worry, because senior judges must be consulted. But consultation means only that. The Government have the whip hand. The complex ramifications will not be exposed by argument as they would be in court and, if deference to the judges’ views could ever have been assumed, it certainly could not be now. I suggest that there would be situations in which the judges will not even feel able to offer an opinion.
Imagine the scene. The Minister summons the judges and informs them of his proposal to instruct them that in accordance with the clear will of the people—or at any rate of the Government—they are no longer to be bound by the settled interpretation of the precautionary principle in environmental cases or the principle of indirect discrimination in employment law. The judges would no doubt come back with such comments as might occur to them on the timing, the procedural implications and so on. But since such instructions would be lawfully issued, if this clause passes into the Bill, and would implement clear government policy, these serving judges could not pass substantive comment without being dragged into the policy sphere, which, contrary to the views of some, they are extremely anxious to avoid.
Secondly, the Minister will point out, quite correctly, that the power in question will sunset when the transition period ends. However, it is the power to make regulations that will sunset, not the application of those regulations after the transition period. So that reassurance is illusory.
Thirdly, perhaps the noble and learned Lord, Lord Keen, who is as shrewd as he is principled, will tacitly accept the overbreadth of these provisions but hint at their restrained future use. In that case, I would invite him to come back with a version consistent with those restraints. We are reasonable people and if his only concern is a possible bottleneck in the Supreme Court other solutions could be devised and have indeed been suggested to him.
To leave this extraordinary clause unamended would be, I suggest, a dereliction of duty. I hope that amendment will come from the Government. However, when the time comes and in the last resort, as the noble Lord, Lord Butler, said on Monday,
“we should not be intimidated from fulfilling our constitutional role of scrutiny and amendment”.—[Official Report, 13/1/20; col. 490.]
That is particularly so, I would add, on an issue that was not put to vote in the Commons, that has been the subject of strong comment from the Constitution Committee, that in no way jeopardises Brexit but that threatens the independence and good order of the courts.
Baroness Taylor of Bolton (Lab)
My Lords, members of the Constitution Committee are very concerned about this suggestion in the legislation. The case was outlined by the noble Lord, Lord Beith, who went into some detail, so I do not wish to repeat all that. I simply want to ask the Minister, first, whether it is the Government’s intention to use this new subsection (5A)(b), and, secondly, if they will not use it, why it is in the Bill. If they intend to use this provision, can the Minister please give us some examples of where that might be?
Northern Ireland (Executive Formation) Bill
Lord Anderson of Ipswich ExcerptsWednesday 17th July 2019
(4 years, 10 months ago)
Lords ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
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 Duncan of Springbank
The aspect of a no-deal Brexit that has been discussed here is an important one and has been discussed on a number of occasions in your Lordships’ House and in the other place. It is important to Northern Ireland: I do not doubt that because I have seen it myself. I recognise and have said on more than one occasion how important it is and how different it would have been had an Executive been in place during this period, when those voices could have been part of a wider debate. There is not a single person who does not regret the fact that those voices have been silent for far too long when we could have had them contributing, not least on the question of the Irish border. But we are talking today about a simple and focused aspect, which is extending the window during which there shall be no elections in order to secure a newly formed Executive. That is the key to the discussions today and should be the focus. I am also very happy to get a call from Mr Hunt.
The important thing to stress now is that at this point, I do not believe that the amendment takes us in the right direction. On that basis, I ask the noble Lord, Lord Anderson, to withdraw his amendment.
Lord Anderson of Ipswich
I am most grateful to all noble Lords who have spoken and in particular to the Minister for his courteous response, I do not think that we should prolong things by hearing any more from me. The issues are clear. I do not propose to press Amendment 2, but I want to test the opinion of the House on Amendment 3.
“(2A) The Secretary of State must make arrangements for—(a) a copy of each report published under subsection (1) to be laid before each House of Parliament by the end of the day on which it is published,(b) a motion in neutral terms, to the effect that the House of Commons has considered the report, to be moved in the House of Commons by a Minister of the Crown, and(c) a motion for the House of Lords to take note of the report to be tabled in the House of Lords and moved by a Minister of the Crown.(2B) The motions required under subsections (2A)(b) and (c) must be moved in the relevant House by a Minister of the Crown within the period of five calendar days beginning with the end of the day on which the report is laid before Parliament.”
Northern Ireland (Executive Formation) Bill
Lord Anderson of Ipswich ExcerptsMonday 15th July 2019
(4 years, 10 months ago)
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Lord Anderson of Ipswich (CB)
My Lords, Clause 3 already provides for the publication of regular reports on progress towards the formation of an Executive in Northern Ireland, and for those reports to be laid before Parliament—one by 4 September and another by 9 October, with further reports at intervals of no more than 14 days. Amendments 6 and 7, which have support from all parts of the House, require those reports to be debated in both Houses, pursuant to Motions to be moved within five calendar days of each report being laid. I hope that there will be as few of those reports as possible, because when they stop it will be because the Executive have finally been formed. I hope also that the debates that these amendments provide will help to keep up the pressure for that long-overdue development.
However, let there be no doubt about the main purpose of the amendments. They are defensive fortifications against the possibility—unlikely, no doubt, but pointedly not disavowed by the leading candidate—that the next Prime Minister will advise Her Majesty to prorogue Parliament for the express purpose of achieving a no-deal Brexit to which Parliament is opposed. I am no enthusiast for procedural gambits—today of all days, we should be wary of anything that is not cricket—but to my mind these amendments are abundantly justified by the extraordinary gravity of what is apparently being contemplated.
This would not be a standard prorogation of Parliament. The purpose of the prorogation extending beyond 31 October would be to bring about an irreversible change not just to our trade relations but to our central political and economic alliance, without putting anything in its place. If the House of Commons were to give its democratic approval to such a momentous step, of course it must happen—nothing in these amendments would impede, or is intended to impede, that—but for Parliament to have its voice removed precisely because of its anticipated opposition would be astonishing, unconstitutional and without precedent in recent times.
I accept of course that prorogation has attracted controversy in the past. A technical use of it was made in 1948 to fulfil the requirement in the Parliament Act 1911 that a Parliament Bill be approved by the Commons in three successive Sessions. In that case, though, a clear majority of MPs desired the legislation to pass and were in favour of prorogation for that purpose. That episode pales into insignificance when compared to what it seems is now so casually contemplated: a direct assault on the sovereignty of Parliament itself, aimed at circumventing its will irrevocably on one of the central questions of our time.
Lord Forsyth of Drumlean
My Lords, is the noble Lord right to describe what happened in 1948 as a technical matter? It was moved by a Labour Government to impose their nationalisation of British steel, which was opposed by this House, and to remove the ability of this House to delay the legislation. How can that be described as a technical matter?
Lord Anderson of Ipswich
What happened in 1948 was a prorogation to give effect to the provision of the Parliament Act 1911 that approval of the Commons was needed in three successive Sessions. The key distinction between that situation and what is proposed now is that it was a course that the House of Commons desired and was prepared to see go through.
Lord Cormack
Would the noble Lord also remind the Committee that in 1948 there was, relatively speaking, a handful of Members in this House sitting on the Government Benches, and several hundred on the Conservative Benches as the Opposition?
Lord Anderson of Ipswich
I am very grateful to the noble Lord for the point he makes. However, getting hung up on an entirely different precedent from 1948 and suggesting that it might be in some way determinative of the position which we are now asked to contemplate is, I would suggest, too ludicrous to bear.
Baroness Smith of Basildon (Lab)
It may help to remind the Committee that the position to which the 1948 prorogation gave effect was the commitment of the Government’s 1945 election manifesto, which had overwhelming support from the House of Commons.
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 Duncan of Springbank
It would be easy to answer that in a simple way, but I suspect that tucked inside the question is a matter for greater constitutional scholars than I. I stand before noble Lords not, I am afraid, as a lawyer but as a humble geologist. I therefore feel ill-equipped to answer a question of that august nature.
In returning to the point before us, I say that this is not the right way to achieve these ends. The other place has spoken on these matters. It has spoken in a voice which we have heard on other issues and should hear today. I would ask that these amendments should not be pressed. I do not believe that they give comfort to the ongoing talks in Northern Ireland, and nor do they progress the important aspects for which those talks have been set up.
Lord Anderson of Ipswich
My Lords, I am grateful to the Minister and noble Lords, and for the support that these amendments attracted. I hope it is now clear that it is not the purpose of this amendment to prevent the United Kingdom from leaving the European Union on or before 31 October; it would not be apt, and it is not intended, to do that. I am grateful to the noble Lord, Lord True, for his research and I am delighted to have him as a social media follower, but my views on the wisdom or otherwise of Brexit are no more to the point of this amendment than are his.
I listened carefully to everything that was said and it still seems inescapable that, if there are any fetters at all on the absolute power of the Government in this matter, those fetters must be in the courts, in Parliament or, as a last resort, in the person of the monarch. I did not detect any enthusiasm from those who spoke against the amendments for any of those options. I found myself wondering what checks or balances on the authority of the Executive they were minded to acknowledge —but there we are. In short, I am undeterred by what I have heard. It may be—it is very likely—that I will come back to this on Wednesday. But, for the time being, I beg leave to withdraw the amendment.
Parliament: Freedom of Speech and the Rule of Law
Lord Anderson of Ipswich Excerpts(4 years, 12 months ago)
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Lord Anderson of Ipswich (CB)
My Lords, we all have our prejudices. Mine, in common perhaps with the noble Lord, Lord Hain, include unease about the use of non-disclosure agreements in the employment context—particularly where bullying and harassment are concerned—and a strong belief that in corporate, as in public, life, sunlight is the best disinfectant. Hence the importance of dispassionate and disciplined legal analysis, exemplified by the case to which the noble and learned Lord, Lord Brown, referred in opening, and in which I declare a remote interest, having been instructed in the past on unrelated matters on behalf of one of Sir Philip Green’s companies, and on behalf of the owners of the Telegraph group.
The High Court favoured the public interest in publication. The Court of Appeal, having carefully weighed what it referred to as,
“important and difficult policy considerations”,
gave precedence to the public benefit in the enforcement of settlement agreements freely entered into by the parties. Legal principles developed over many years were argued out and applied in a way that held the ring, pending a speedy trial by judges with the experience and aptitude to do so.
Of course, the development of the law should be robustly debated and criticised in Parliament. We are in the law-making business. If the judges take a wrong turn, it is open to us to reverse it. One thinks of the long history of the admissibility of complainants’ sexual history in rape trials. No legal topic could, or should, possibly be considered off-limits in this House. However, to ignore a court order and so prejudge the result of a trial is an entirely different matter. What would we think of a Supreme Court that overrode the Court of Appeal on the basis of an interview with a single witness, and without troubling to read the judgments of the courts below? Yet if the noble Lord, Lord Hain, is right, then not just he but any Member of either House would be entitled to do exactly that, because his or her personal morality suggested that it was a good idea.
The noble Lord told the commissioner that he was motivated by human rights, and on human rights his record is well known and highly respected, not least by me. But this is an area where rights conflict. There is the right of the public to be informed, certainly, and the countervailing privacy rights of the two complainants mentioned by the noble Lord, Lord Trevethin and Oaksey, who had signed non-disclosure agreements and supported the application for an injunction. Crucially, there is also the right of Sir Philp Green and his companies to a judicial determination of their legal rights, guaranteed by Article 6 of the European convention.
The noble Lord, Lord Hain, told the commissioner that he was not seeking to challenge the decisions of the judges, and that he totally respected their authority. However, whatever his intentions may have been, the foreseeable result of his actions was to pre-empt their jurisdiction and prejudge the outcome of the case. Were this matter to be considered in Strasbourg, our system would be scrutinised as a whole. At the very least, as we know from the A v UK case, the European Court of Human Rights would need to be satisfied that there are strong mechanisms in place to prevent privilege from being abused. That case would be a hard one to make, given the absence of a Speaker who controls our proceedings, the limited jurisdiction of the Parliamentary Commissioner for Standards and the lack of mechanisms for redress.
In his recent lecture to the Commonwealth Law Conference, the Lord Chief Justice observed that for almost 300 years it did not appear to occur to any Member of either House that it was appropriate to use the freedom of speech in Parliament to undermine an order of a court. The practice seems to have emerged in the 1970s—ironically, not long after the sub judice rules were formalised. Since then, the pace has picked up. In his lecture, the Lord Chief Justice identified five cases in the past 10 years, only one of which he discounted as inadvertent.
What is the solution? I freely defer to the experience of those who have been in this place much longer than I have, though I respectfully doubt whether the Lord Speaker’s Written Statement of 29 October, welcome though it was, is enough. I have not heard anyone say that we should subject parliamentary sovereignty to the power of the judges, as the noble Lord, Lord Hain, characterised the argument. However, can we not at least consider the ways in which our code of conduct could be beefed up to give the commissioner jurisdiction over the central issue in these cases, and not just questions of conflict of interest? That would avoid the need for these matters to be ventilated in this Chamber in the context of individual cases, which currently seems to be all we can do to register our disappointment or dismay.
I suspect that we also need to achieve clarity about the application of the sub judice rule, or some broader rule, to matters pending before tribunals; to private proceedings in this House, such as Select Committee meetings in closed session; and to cases in which final orders have been made, such as injunctions or orders for anonymity in criminal or family cases. It is seductive to be placed above the law, and it may be tempting to do nothing in the hope that the problem will not get worse. However, the threat to justice is real. We need to get our own House in order, and I hope we will.
Brexit: Negotiations
Lord Anderson of Ipswich Excerpts(5 years, 5 months ago)
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Lord Anderson of Ipswich (CB)
My Lords, Denmark and Ireland joined the Common Market with us in 1973 and some predicted that they would follow us out. However, the latest Eurobarometer poll, taken this spring, showed that 75% of Danes and 91% of Irish thought that their countries had benefited from being members of the EU. Across the continent as a whole, we are seeing the highest levels of satisfaction with the EU in 35 years. Brexit has achieved this at least: by deciding to leave we have fortified the others in their desire to stay in the world’s largest and most frictionless trading bloc, its strongest promoter of civilised values and its only regulatory superpower.
We have all been formed by our own experience of Europe. In my case, it was as a junior in the office of Lord Cockfield, the architect of the single market; as an advocate for 30 years in the courts where its principles were worked out; and, after 1989, as a visiting teacher in places where—as Mrs Thatcher had prophesied in her Bruges speech—people were once again starting to enjoy a full share of European culture, freedom and identity. Despite that perhaps unusual enthusiasm for the European project, I believe that we could do worse than this agreement. I see the backstop as an opportunity for Northern Ireland rather than a threat. The procedure for ending it is both fair and inevitable. By providing so carefully for an orderly withdrawal, it demonstrates how disorderly a no-deal Brexit would be. If we need to come out, this agreement enables us to do so in a grown-up way.
However, it also demonstrates the greater folly of our present course. It binds us to EU rules while removing all representation and influence. Our historic leadership role in areas from sanctions and security to financial services and the internal market will abruptly end. As to the future relationship, we might have a long wait for the struts and girders to which my noble friend Lord Kerr referred. The intention apparent from the seven pages is already plain: to pay a heavy price for the primary goal of ending free moment in terms of our exclusion from other economically vital elements of the single market. The next four years at least will be consumed by negotiations that will make these ones look simple, and not only with the EU. Other pressing priorities will be relegated, as they have been since 2016. We cannot hope to end up with the same benefits as we have now. That is not the basis on which Brexit was sold.
If I had a meaningful vote today—for all the great respect that I have for the Prime Minister and for those on the ground who negotiated and drafted this workmanlike agreement—I would use it to seek an extension to the Article 50 deadline so that the public could vote for the first time on whether to accept this predictably inadequate Brexit deal or to cancel the whole unhappy project.