Sanctions and Anti-Money Laundering Bill [HL]

Debate between Lord Deben and Lord Lester of Herne Hill

Report stage (Hansard - continued): House of Lords
Monday 15th January 2018 Lords Chamber

[Lord Lester of Herne Hill (LD)]

My Lords, it is a great pleasure on this occasion to speak after my noble friend Lord McNally and to agree with him. I am very glad to do so. Although he does not think much of lawyers, he would make a wonderful lawyer—and I mean that as a compliment.

So far as this amendment is concerned, although the noble and learned Lord, Lord Judge, went back to the proclamations in explaining its origin, I shall add this from my own memory. When I was a student of history, not law, at Cambridge University, my mentor told me to read The New Despotism by Lord Hewart, the Lord Chief Justice, and, especially, Harold Laski and the other members of the Donoughmore committee on Ministers’ powers, which reported in the late 1930s. Anybody who reads those two historic documents will understand perfectly why the amendment moved by the noble and learned Lord, Lord Judge, needs to be supported. It is a matter of the rule of law and of parliamentary democracy. Therefore, I very much hope that the whole House and the Minister, in particular, will be able to accept the amendment. If not, I will certainly be delighted to vote in its favour.

[Lord Deben (Con)]

My Lords, I remind the House that I was fortunate enough to take part in the Space Industry Bill on exactly this basis. That is the reason I come to this amendment. I hope that my noble friend will recognise that this is about not just this amendment in this Bill but a whole range of ways of looking at taking into our domestic legislation the things that we have to. I choose to speak on this simply because this is not an issue on which I can be accused of having a parti pris position—although I will be perfectly happy to be accused of that when we have the withdrawal Bill, on which clearly I take a very strong view.

On this, I am talking about an amendment to a Bill which has a great danger. If you produce a Bill called the Sanctions and Anti-Money Laundering Bill, it is very easy to put almost anything in it and feel that it is perfectly reasonable to support what you have put in—because none of us is in favour of not having sanctions and all of us are opposed to money laundering. Therefore, this is the moment in which I always become particularly careful. I am worried about this because it seems to be an area in which lawyers have taken a major part. That always worries me, and I feel that one has to make sure that one is not being led astray down some legal path that is other than sensible.

On this occasion, I think that what is being proposed is not acceptable within the constitution. As the noble Lord, Lord McNally, said, this is a constitutional matter. If we are here for anything—and I believe that we are here for a very good purpose—dealing with the constitution is clearly the central part of it, and dealing with it in the detail that we can, when the House of Commons is unable to deal with it in that detail, makes this even more important.

I cannot believe that my noble friend really intends to say that Ministers should have these powers. I know that I have said it before, but I was a Minister for 16 years and I have to tell him that I should not have been given those powers. I do not agree with the noble and learned Lord, Lord Judge, that it does not matter because of the excellence of the Minister. In a sense, it matters more because of the excellence of the Minister. It is very important as a Minister to recognise that there are restrictions on any Minister, however good. In a sense, that is when I particularly want those restrictions to be strong.

I say to my noble friend that there is a reason why this amendment is very important, and it is a constitutional reason. But there is a practical reason, too. It is that we do not want to feel that the Government are not prepared to understand the distinction between constitutional propriety and the urge and necessity to change the law in order to face up to the regrettable effects of Brexit. This is an opportunity for us to say that this is not about this issue; it is about the constitutional concern. I hope that my noble friend will be able to give the House some reassurance that, now that this has been pointed out to him, he will look again at the debates on the Space Industry Bill, think forward to the debates that we will have over the Trade Bill and the withdrawal Bill, and recognise that perhaps this is a moment to find a way of accommodating a very serious criticism.

Policing and Crime Bill

Debate between Lord Deben and Lord Lester of Herne Hill

Report: 3rd sitting (Hansard): House of Lords
Monday 12th December 2016 Lords Chamber

[Lord Deben]

Not at all. The fact is that what the judge would be deciding is whether that name should be put forward at that point, and in most cases he would probably say no. I can think of very few cases when publishing the name in connection with an allegation would reduce the number of people coming forward if that name were later published at the point of an actual charge. It would therefore affect a limited number; in fact I do not believe there are any in this group. But if there were, I would want someone to be able to say, “In this particular case, it is so important that I will allow it to be done”.

[Lord Lester of Herne Hill (LD)]

My Lords, like the noble Lord, Lord Pannick, I was not intending to take part in this debate. However, with his great skill as an advocate, he has persuaded me to support my noble friend Lord Paddick’s amendment. I want to try to explain why. The main reason is that the noble Lord, Lord Pannick, with his usual brilliant, destructive analytical skill, has explained objections to the amendments but has not answered the fundamental question from the noble Lord, Lord Lamont: what safeguards does he propose to put in place of either or both these amendments? I am sure we will hear that from the Minister in her reply.

As a lifelong friend of Leon Brittan and his wife, during that one year while he was dying I witnessed the destruction of both of them through the callous misconduct of the police service, to which there was and is no effective remedy. The United States, which takes due process very seriously under its written constitution, has not abolished the grand jury. When the grand jury is investigating a federal crime, the one thing that is absolutely clear is that there must be no publicity for any of the evidence that it is investigating before deciding whether to recommend that the prosecution should be brought. The reason for that is the same reason that noble Lords have expressed today about the unsatisfactory nature of our legal system at present—it is the need to protect the innocent before the presumption of innocence has been applied at a trial.

Whether either of these amendments is acceptable or not, I believe that some kind of safeguard is needed—not just through guidance or a code of practice, but a binding legal rule that will protect people in the position of Lord and Lady Brittan from the kind of scurrilous allegations that were made, and the misconduct of the police in failing even to tell them before he died that they were satisfied there was no evidence against him. They allowed him to die not knowing that. There needs to be a prophylactic rule. If the Minister is against these amendments, I ask her to indicate in answer to the noble Lord, Lord Lamont, what the Government propose instead.

Criminal Justice and Courts Bill

Debate between Lord Deben and Lord Lester of Herne Hill

Monday 27th October 2014 Lords Chamber

[Lord Lester of Herne Hill]

I ask the same question of the noble Lord, Lord Tebbit. If he thinks that Ministers, not judges, should make the judgment, then we are in wholly different places. The answer to the question of the noble Lord is that in the end it is for Parliament to make the laws, it is for the Executive to administer the laws, but it is ultimately for the courts to decide and to declare what the law is when it comes to public law, as for any other kind of law.

It is important to emphasise, for the benefit of the noble Lord, Lord Horam, in particular, that there is no automatic right to judicial review. It has to be applied for. It is granted only if the administrative court is satisfied that the application raises a properly arguable case by someone with a sufficient interest—not a mere busybody—who has exhausted any effective alternative remedy, such as a planning appeal.

The application has to be made without inordinate delay. The concerns of the noble Lord, Lord Horam, about delay are, therefore, met by the strict requirements of the administrative court. If the application succeeds, the court has a broad discretion that the remedy is necessary and proportionate. It will not permit the procedure to be abused. It will punish any abuse of procedure with an appropriate cost order.

If, as the Justice Secretary contends,

“‘left-wing’ campaigners have exploited the process of judicial review to frustrate government initiatives”,

—dear me!—the courts have ample powers to ensure that judicial review is not abused, including making cost orders against those who abuse the procedure.

It is an ancient principle, probably going to back to Magna Carta, that under the common law, which is at the heart of our system, no one shall be judge in his own cause. In seeking to interfere with the powers of the courts, and to place obstacles and handicaps in the way of application for judicial review, the Justice Secretary and the other Members of the Government—Liberal Democrat as well as Conservative—are judges in their own cause. They have a political self-interest in what is in Part 4.

But this House is in a different position. We have a vital constitutional role in protecting the rule of law and the accountability in law of Ministers and of government departments and of all public authorities. The House has the opportunity this afternoon to fulfil that role by placing the wider public interest against party-political interest. That is why, though I do not enjoy being a rebel, if there are Divisions on any of these amendments in the name of the very distinguished supporters of this one, I shall cross the floor and shall vote with them.

[Lord Deben (Con)]

My Lords, many Members of your Lordships’ House will understand that I very often come to debates on legal matters in order to make sure that legally trained people do not have it all their own way. I have always felt it a danger of this House that legal issues are debated by judges, who, it is often suggested, may have ulterior motives. I speak today because I think the judges are entirely right, and the concern that I have is a concern for my own historic profession of politician.

I well remember the occasion on which I was able to use the fact of judicial review to get my civil servants to understand why I would not accept a particular appeal on a planning matter. It was because it was quite clear to me that the very powerful interests, whose infrastructure aim I entirely approved, had failed in their duty to look for alternatives to the proposal that they were putting forward. They had not, therefore, fulfilled the law. Now, sometimes it is easy for a Minister to make such a decision, but sometimes it is inconvenient. It is important that embarrassment and inconvenience should not be allowed to go so far that it means that Ministers make decisions which are unlawful. Somebody has to decide when a decision is lawful and when it is not. That is what judicial review is about; it is a very simple concept.

Marriage (Same Sex Couples) Bill

Debate between Lord Deben and Lord Lester of Herne Hill

Monday 8th July 2013 Lords Chamber

[Lord Lester of Herne Hill]

My Lords, of course Parliament may decide to create an exception through this amendment. I am explaining why I could not support it. The first reason is that it would legitimise discrimination by public officers who are performing their statutory duties. My noble friend Lord Deben says, “Let’s show a bit of generosity”. I reply, yes, let us show a bit of generosity to those who would be the victims of this practice, who would find that they could not have a civil marriage registered by a public official—that is all it is—because of his or her conscientious objection.

[Lord Deben]

I am sorry, but surely that cannot be true, because the case would never get to that. You would know that if a same-sex marriage had been offered, there would be a registrar who would be willing to do that. It would be privately arranged; there would be no victim in this. That is clearly different from what my noble friend says.

--- Later in debate ---

[Lord Deben]

As has been mentioned on several occasions, I want to expand on why I think this is a really dreadful amendment. It is dreadful for the reasons that my noble friend Lord Cormack has explained. He has amended the comments of the noble Lord, Lord Dear, because nobody really knows what people mean by traditional marriage. That is one of the difficulties. The amendment is a blunderbuss.

My problem is that if we put this into the Bill, that would suggest that somebody actually thinks it might need to be in the Bill. However, there is no reason for that. The noble Lord, Lord Pannick, is absolutely right about that. If we have to put this in, what other definitions of marriage will we have to put in? Do we say, “Nothing in this Act shall counteract the opinion that some people believe X, Y and Z”? All Acts would be interminable and intolerable if we added all the things that they did not have a reference to, but that is exactly what the noble Lord, Lord Dear, has put forward.

However, the problem is much more basic than that. There is a fundamental difference, although it is not something that is shared across every side, in arguing that in all circumstances we should be wary of not having a conscience clause. I am always in favour of conscience clauses because I never know when they will come for me. That is my honest view about conscience clauses. Therefore, I always want to lean over backwards towards people who are in a position—not one that they have chosen—where they may feel that their conscience prevents something. That is why I take that view. However, I do not believe that you can reasonably undermine the value of a Bill by putting into it a phrase that is designed to say, “Look, we’ve had to pass this Bill but a lot of us don’t really think like that. We’re not really on that side and we just want to—nudge, nudge—put this in to make sure that you realise that we weren’t really on that side”. That is a game to deny the reality of the Bill.

The Bill is a generous one and if it is too generous, it makes up for the exact opposite way in which we have acted until now. Please, do not allow the Bill to be undermined by an addition of this kind, which is already a matter of disagreements between the two people who are proposing it and which, after all, could be expanded to any lengths you like to include anybody who might feel that they had not had their particular views heard. It is not a sensible amendment and we should refuse it.

[Lord Lester of Herne Hill]

My Lords, the law on traditional marriage is contained in the Marriage Act 1949. Nothing in the Bill affects the rights and duties under the Marriage Act 1949 of what is called traditional marriage. If it did so, the amendment might have some kind of purpose, but it does not. If it does not undermine the ability to marry under the Marriage Act, does it create any sort of belief that that form of marriage is in some way undesirable? No, it does not. Nothing in the Bill suggests anything wrong with the traditional view of marriage. What it does do is to create another form of marriage and treat it as part of the concept of marriage. That does not undermine traditional marriage unless you take the view, as some do, that we should not have the Bill at all.

Marriage (Same Sex Couples) Bill

Debate between Lord Deben and Lord Lester of Herne Hill

Monday 8th July 2013 Lords Chamber

[Lord Lester of Herne Hill]

My Lords, in my judgment this amendment suffers from the following problems among others. First, it imposes completely unnecessary burdens on employers; secondly, the burdens it imposes are unworkable; and, thirdly, it is discriminatory.

[Lord Deben]

My Lords, we have complained about many people suing, but this is an absolute opening for anybody to sue. I find it incredibly peculiar to say that an employer should organise his business so that somebody who objects to same-sex marriages could say that it was unreasonable to drive two people from one place to another. There is a limit to what can be reasonably considered a conscientious objection.

I voted for the case of registrars because I felt it was one end of the limit. I have to say that this really is ridiculous. It will open up the opportunity for people to sue the other way round on the basis of the most trivial issues. If a cook was able to say, “I am afraid that my petit fours cannot be used for the reception at a same-sex marriage”, we are making a laughing stock of the law. This is not just a bridge too far, it is a whole highway beyond where we should go.

Enterprise and Regulatory Reform Bill

Debate between Lord Deben and Lord Lester of Herne Hill

Wednesday 9th January 2013 Grand Committee

[Lord Lester of Herne Hill]

I was talking about an idea that I thought was being suggested—not that there be some kind of consultation but that Parliament itself, or a parliamentary committee, should agree and set the budget, rather than that being done by the Treasury and the responsible government department. Of course, it is possible to have consultation by a parliamentary committee on the size of a budget and how it is to be spent, but under our system of parliamentary government, it seems to me that the ultimate responsibility for deciding on the budget and ensuring proper accountability is through the accounting officer—normally a Permanent Secretary in charge of the department, who is then accountable to Her Majesty’s Treasury and to Parliament. We tried all of that when we looked at the Judicial Appointments Commission; we tried to ring-fence the budget of the Judicial Appointments Commission and of the judiciary as a whole, but failed to do so for similar reasons.

I am sympathetic to the idea of parliamentary involvement and accountability. All that I am suggesting is that the way forward is to encourage the Joint Committee on Human Rights, if it is willing to do so, with the consent of the Government, if they are willing to do so, to develop new protocols that will allow this kind of accountability to occur. I am sympathetic with the object, but I do not think that the amendment is the best way forward. Similarly with regard to annual reports, there is no reason why there should not be a report that is then scrutinised and discussed with the commission by the Joint Committee on Human Rights. It seems to me to be better to have an existing piece of expert machinery than to create a new Joint Committee of both Houses without purpose.

I say all this with no authority; I do not speak for the Joint Committee on Human Rights. It has not considered that; nor do I have any idea of whether the Government is be sympathetic. I am a member of the committee suggesting that as one way forward.

[Lord Deben]

My Lords, as somebody who is also very sympathetic to the purpose of the amendments, I follow my noble friend’s thoughts. I declare an interest as chairman of the Climate Change Committee. We have a very independent situation—more independent than any of those mentioned earlier by my noble friend. The whole question of budgeting is very delicate and difficult.

If you insist that the budget should be discussed in detail in a nitty-gritty way, it makes it almost impossible to be independent, because independence is about how you use the resources that you have. It is bad enough being at the behest of Government as to how much money you may have—there are always arguments about that. You say, “If I am going to do this job, I need this amount”, and the Government will always want you to do it for less. Those arguments go on, inevitably, because the paymaster is always, in the end, the public purse. I think that my noble friend Lord Lester is right to say that the amendment would add to that yet another inappropriate level. However high-minded a committee may be, it is difficult to understand the balances that have to be made. It is like any business, it is difficult.

I hope that the Government will take on board the concerns which the amendments evince. I hope that they will understand that the proposals added by my noble friend Lord Lester: not only that the role of the Joint Committee will be seen by the Government as useful but that the Joint Committee will turn out to have the same view of its purpose. That seems a sensible way forward. I hope that the amendments, which are a good probing way into the issues, will not be pressed. I have to say how hard it is to be independent and run the system in the best way in the public good and still have to answer to five different sets of people who feel that they have, at least, advice to give. I hope that we will not go too far down this route.

Public Bodies Bill [HL]

Debate between Lord Deben and Lord Lester of Herne Hill

Monday 7th March 2011 Lords Chamber

[Lord Deben]

I promise not to hold your Lordships' House any longer, so I shall reply specifically to that. If I felt that the Church of England had carried through its necessary duties in a way that was commensurate with its great heritage, I would not be supporting the amendment. If the argument of the right reverend Prelate were made by anyone else, no one would take it seriously. If anyone said, “I am very sorry. I am now running a business and it is really very difficult for me to keep this house as it is”, people would say, “I’m afraid that is your responsibility; that is what happens if you have been given the house; you have to look after it properly”. It is all right arguing about the churches, but you cannot make any money out of the churches.

[Lord Lester of Herne Hill]

I am a Jewish atheist and, therefore, have no special interest, but I regard what the right reverend Prelate the Bishop of Leicester has said as totally cogent and convincing. I believe that the question he has asked has not been addressed by the noble Lord or by the noble Lord, Lord Howarth: who is to decide, the church under the separation of church and state, or a Minister? Unhesitatingly, I agree with every word that the right reverend Prelate has said. When I listen to noble Lords talking about palaces, I am reminded of the absurd and pompous discussions we had about judges’ lodgings and the notion that High Court judges could not be judges unless they were insulated from the public and lived in those amazing country houses. This is exactly the same argument; it is reactionary and I do not believe that the law of charity or the other mechanisms do not adequately protect the public interest.

[Lord Deben]

I say to my noble friend that I have never claimed that bishops should live in these palaces. I do not want them to live in these palaces. The noble Lord, Lord Howarth, thinks that, but that is not my argument. My argument is that the Church of England has a specific role in our society which involves accepting that it has a duty of care of that which it largely has received and did not itself create; someone else created it and it was handed on. The fact is that the Church of England has failed. Of course, it does not sell the churches; no one wants to buy medieval churches; it sells the things it can make money out of. Therefore, I unhesitatingly say that it will be very much better for the Church of England if a Minister were able to remind it of its duty, not just to the moment, not just to the future, but to the past, and its role, dependent on the fact that it is the Church of England; and if it forgets that, many of us will have to change our minds about its place here and in the establishment.