Royal Commission on Criminal Justice
Lord Falconer of Thoroton Excerpts(3 years, 11 months ago)
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Lord Keen of Elie
The membership of the royal commission has not yet been finally determined but I am confident that there will be appropriate representation of the legal profession, as there has been with previous royal commissions looking at criminal justice.
Lord Falconer of Thoroton (Lab)
As previous noble Lords have indicated, there is an immediate crisis in the criminal justice system, made worse by the Covid-19 crisis—demonstrated, for example, by the fact that there were about 37,000 cases waiting for a jury trial when the crisis struck, and approximately seven of those have been dealt with since. What are the Government’s immediate plans to relieve the current huge pressure on the criminal justice system, which obviously cannot wait for the long grass of a royal commission?
Lord Keen of Elie
The senior judiciary has been looking at the ability to carry on criminal trials and work in the criminal justice system remotely, and implementing measures to that effect. We hope that these will be developed in the immediate future.
Private International Law (Implementation of Agreements) Bill [HL]
Lord Falconer of Thoroton ExcerptsWednesday 13th May 2020
(3 years, 11 months ago)
Lords ChamberRead Full debate Private International Law (Implementation of Agreements) Act 2020 View all Private International Law (Implementation of Agreements) Act 2020 Debates Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: HL Bill 101-I Marshalled list for Virtual Committee - (7 May 2020)
“( ) The appropriate national authority may make regulations for the purpose of, or in connection with, implementing the Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters signed at Lugano on 30th October 2007 (the “2007 Lugano Convention”), in the event that the United Kingdom becomes a party to the Convention in its own right.”
Lord Falconer of Thoroton (Lab)
My Lords, the effect of the three amendments in this group—Amendments 1, 4 and 5—is that the power in Clause 2 which allows a Minister by regulations to change the law of the United Kingdom to reflect an international treaty on private international law that the country has entered into would be restricted to the Lugano convention only.
It is perhaps sensible if, in addressing the three amendments in this first group, I set out the context, in effect, of most of my amendments in Committee. Clause 1 introduces into the domestic law of the UK the content of three private international law treaties: one dealing with the abduction of children from one country to another; one dealing with the enforcement of child support and family maintenance orders; and one dealing with commercial agreements where a choice of court clause is specified in the agreement. The effect of bringing these three conventions into UK law is that the terms of those conventions become part of our domestic law and are what our courts then give effect to as part of the law. For example, the Hague abduction treaty means that where a couple bring up a child in one country, where there is custody with one parent, and that child is abducted by the other parent to another country—for example, the UK—then, according to that convention, the UK courts, as a matter of domestic law, should return the child to its normal place of residence and should refuse to do so only if there is fear for the child’s safety.
These private international law agreements change the law of the country as a result of agreements that the Executive have entered into. We on these Benches have no objection to those three treaties being brought into domestic law—this is a piece of primary legislation—but we have very considerable objections to Clause 2, and our primary position is that it should not stand part of the Bill. It allows the Government to change the law of the country by delegated legislation, even by changing primary legislation, to give effect to agreements that they have entered into in private international law.
Our objections are, in effect, threefold. First, as a matter of constitutional propriety, this is wrong. It is wrong that there should be such little accountability by Parliament in respect of potentially very significant changes in the law. In support of that principled constitutional objection, I have the support of the Constitution Committee, which is chaired by my noble friend Lady Taylor, the Delegated Powers Committee, which is chaired by the noble Lord, Lord Blencathra, and the chair of the Treaties Sub-Committee, my noble and learned friend Lord Goldsmith. All see this as a matter of constitutional impropriety.
In the face of that unanimity of view about what is a constitutionally improper thing to do, what is the Government’s justification for doing this? I have scanned carefully the two speeches by the noble and learned Lord the Advocate-General for Scotland, Lord Keen of Elie, at Second Reading about why this move is justifiable. He gave no general explanation in either speech. He acknowledged in his opening speech that there might be an issue about the Lugano convention, which deals with the jurisdiction and enforcement of judgments between, among other things, members of the European Union. He said that we might end up in a situation where we want to join the Lugano convention, that we have to do it before the end of the transition period, and that we would negotiate it only at the very end of the period. He said that because of those exceptional circumstances there should be power to join the Lugano convention by delegated legislation.
For that reason—and that is the only example given —we have tabled, by way of probing amendments, Amendments 1, 4 and 5, which restrict the power to the Lugano Convention because of those special circumstances. There is a live debate about whether the UK should join the Lugano Convention, and in his speech at Second Reading the noble and learned Lord, Lord Mance, set out the shortcomings of the convention.
My preference is that we delete Clause 2 altogether and that, if the Government of the day join an international convention that has effects on our domestic law, that should be approved only by primary legislation. It is said that private international law is a “narrow” and “specialist” topic. The complex rules surrounding it can be both narrow and technical, but they deal with hugely important issues that affect everybody, such as family life, consumer, personal injury and international trade issues. That the law is complex does not mean that the issues covered are not of real significance.
I invite noble Lords to consider whether they wish to restrict Clause 2 only to the Lugano Convention, but that is in the wider context of urging them not to allow the Government this wholly inappropriate power, never used previously and for which no proper justification has been given. I beg to move.
Lord Pannick (CB)
My Lords, I support the observations so powerfully made by the noble and learned Lord, Lord Falconer of Thoroton. I too am concerned about the width of Clause 2. My concern arises from the discussions and conclusions of your Lordships’ Constitution Committee, of which I am a member, serving under the distinguished chairmanship of the noble Baroness, Lady Taylor of Bolton.
As the noble and learned Lord, Lord Falconer, said, the committee concluded that Clause 2 raises matters of considerable constitutional concern. The concern is that, with the exception of EU law—from which we are in the process of extracting ourselves—it is a fundamental principle of our constitution that international agreements can change the content of our domestic law only if and when they are given force by an Act of Parliament. The Constitution Committee saw no justification for the change that Clause 2 would introduce—that is, to confer on Ministers a power to achieve such a result by statutory instrument.
We recognise that many of the international agreements to which Clause 2 would apply are technical in nature and that their text cannot be changed after negotiations have concluded; nevertheless, we think there is no justification for allowing our law to be changed by statutory instrument without the need for full parliamentary debate. Clause 2 will allow not just for the implementation of the text of the international agreement but for “consequential, supplementary, incidental” provisions. It will allow Ministers to create new criminal offences by statutory instrument. These are matters requiring detailed scrutiny of a Bill through the various stages of the parliamentary process, during which amendments can be debated and, if necessary, divided on. Members of the Constitution Committee are concerned to maintain ministerial accountability to Parliament. This is not emergency legislation; it is a proposal for a permanent shift in power to the Executive.
Lord Keen of Elie
There may of course be incidental policy issues that arise when we come to draw down into domestic law an obligation, or obligations, undertaken at the level of international law. Clearly, in circumstances where there were policy choices to be made, a Government would consult upon those matters to bring forward policy choices that were acceptable to stakeholders. If they were not acceptable to Parliament, even after consultation, Parliament would not pass the affirmative SI in question. I do not accept that it is necessary in each and every instance to bring forward primary legislation for this purpose. In those exceptional cases where there may be consequential issues to be addressed, clearly they will be addressed at policy level. They will be consulted upon and the matter brought forward. The Government will not bring forward a policy proposal for an incidental measure without realising that Parliament would be prepared to accept it. That would be a pointless exercise.
Lord Falconer of Thoroton
This very interesting debate has raised, in effect, two substantial questions: as a matter of principle should there be the Clause 2 power at all and, if not, should we nevertheless make an exception for the Lugano convention?
First of all, should there be this power at all? In a speech that might be described as a Scottish smokescreen —because it dealt primarily with drafting issues and issues about the dependent territories and, important as those are, did not really address the principle at all—the noble and learned Lord, Lord Keen of Elie, gave one line to justify this unprecedented power. He said that not having this power under Clause 2 would prevent implementation of any international treaty “in a timely manner”. I forgive the noble and learned Lord for putting it in such wide terms and assume he means private international law treaties only. With respect, what he says is plainly wrong.
The noble and learned Lord was given the opportunity on two occasions to provide evidence that it would prevent the implementation of private international law treaties in a timely manner, once before the Delegated Powers Committee of this House and once before the Constitution Committee. The Delegated Powers Committee said that the Ministry of Justice
“offers no empirical evidence that delay has been caused to stakeholders by late implementation of private international law agreements … The argument from delay, apart from involving unsubstantiated assertion, might justify dispensing with Acts of Parliament in other areas where governments need to legislate quickly.”
It rejected it on grounds of lack of evidence and on grounds of principle.
The Constitution Committee also looked at the very same assertion made to it, and said:
“However, the Government offers no evidence to support this argument. The UK has become a party to only 13 Hague Conventions over the course of nearly 60 years. In respect of some of the Conventions the UK has signed, full ratification and implementation has taken years to complete. The Hague Convention of 13 January 2000 on the International Protection of Adults … was ratified for Scotland in 2003 but has not been ratified for England and Wales or for Northern Ireland … While there may or may not be an increase in the number of PIL agreements that are made in the coming years, there is nothing to suggest that PIL agreements will be produced at a rate that would preclude implementing them via primary legislation, nor that there are exceptional circumstances so urgent that resort to a fast-track bill would be impossible. It is therefore difficult to give weight to the Government’s argument that reputational damage will result from not having the power.”
Anybody who has looked at this in detail thinks the Minister’s argument is rubbish. It is not surprising that he never mentioned it at Second Reading.
The Minister then cited occasions when it has been done before, in particular two primary Acts of Parliament: the Administration of Justice Act 1920 and the Foreign Judgments (Reciprocal Enforcement) Act 1933. Reading those is worth while. The 1920 Act refers to a provision whereby a judgment obtained in one dominion can be enforced in other dominions as long as the dominion passes a power to agree to that. The 1920 Act—the 1933 Act is the same, but not in respect of the Empire—says that if another country agrees to this convention, we can add the name of that dominion or country to the list, having approved the convention by primary legislation. The idea that those two Acts give support to the proposition that we can now import wholesale into our domestic law every international treaty we enter into is absolute nonsense. They provide no sort of precedent at all. I really hope the Minister has noted that every single person who spoke took the view that Clause 2 was inappropriate.
As far as Lugano is concerned, I thought the points made by the noble and learned Lord, Lord Mance, were powerful. I do not know whether they are right or wrong, but they illustrate that we need a proper debate about Lugano: we cannot just import Lugano into our law by secondary legislation. Our debates about Lugano today—which, as one speaker identified, were not answered by the Minister; we never debated Lugano, we simply debated the principle of whether Lugano could be an exception to the deletion of Clause 2—illustrate that this very important convention, about which two views prevail, should be the subject of primary legislation. Of course, I will come back to this on Report.
The important point that was made about procedure, and which is worth emphasising, is that we cannot change a Bill unless there is consent, or as a result of a Division which agrees to change that Bill. It means that we cannot proceed with legislation until we have the ability to divide on legislation, whether remotely or in person. We cannot get to the next stage of this Bill until we have the power to divide. With the permission of the House, I beg leave to withdraw the amendment.
Member’s explanatory statement
This amendment ensures that Clause 2 shall apply only to those international agreements that exclusively relate to private international law.
Lord Falconer of Thoroton
My Lords, I shall try to deal with this group very quickly. It illustrates the width and uncertainty of the power given in Clause 2. Clause 2(1) states:
“The appropriate national authority may make regulations for the purpose of, or in connection with, implementing any international agreement, as it has effect from time to time, so far as relating”.
As I understand it, if there is a treaty that relates partly to private international law and partly to other things, the Government can use regulations to implement the part that relates to private international law and make any regulations relating to that. For legal certainty, it would be much more appropriate if this power could be used only if the agreement it covers relates exclusively to private international law. That is what Amendment 2 does.
The next amendment in the group is Amendment 6. Clause 2(5) states:
“Regulations under this section may include provision about … legal aid.”
For reasons that are completely mysterious, provisions about legal aid can be made under a Bill on private international law. There should not be power under this Bill to deal with legal aid. If the Government want to make provisions about legal aid that might relate to the consequences of a private international law agreement, they should be made under legal aid legislation, not under this Bill.
Line 22 of page 3 of the Bill allows the Government, by regulation, to introduce changes to our domestic law in respect of not only agreements that have been entered into but of agreements to which we are expected to become a party. That would mean that if the Government reasonably believe they are about to sign something they can pass legislation that gives effect to it. What happens if we do not sign it? I suggest that we restrict the power to where the United Kingdom is a party to such an agreement. It would not cause a problem in relation to time. We normally sign and become a party before ratification, so the amendment would not cause any difficulties.
Amendments 10, 11, 12 and 13 would restrict the definition of private international law in a variety of ways. Currently, the definition of private international law in the Bill is not an inclusive definition but states what private international law includes but not exclusively. It says that it includes
“jurisdiction and applicable law … recognition and enforcement in one country or territory of … a judgment, order or arbitral award … an agreement, decision or authentic instrument determining or otherwise relating to rights and obligations”
and “co-operation between … countries”. First, for legal certainty reasons it should not be a definition that includes only some examples and nothing else. It should relate only to those for the purposes of legal certainty. Secondly, it should not deal with arbitral awards because if it does it will be stamping on the toes of other bits of legislation. Thirdly, when the Bill refers to
“an agreement, decision or authentic instrument determining or otherwise relating to rights and obligations”
that covers practically everything. It needs to be restricted.
The final amendment in this group relates to Clause 2(8), which allows model laws to be introduced. Model law is where a number of countries agree, for example on insolvency, that certain principles should be agreed across borders to apply to that area of law. There is no reciprocal requirement for each country to introduce the model law and it is for each country to decide how it implements a model law. Clause 2(8) would allow, for example, the UK to introduce by statutory instrument wholesale changes to our insolvency law, even though there was no reciprocity with other countries. It would be a door that opened a range of legislation on insolvency simply because some of the provisions included model laws. It is wholly inappropriate that this should be in the Bill. I beg to move.
Lord Anderson of Ipswich
My Lords, those of us who are less than happy with Clause 2 have three options: restricting it to Lugano, as we have just debated; voting to remove it altogether, as both the Delegated Powers and Regulatory Reform Committee and the Constitution Committee have recommended; or voting to trim its scope in a variety of respects, as the amendments in the name of the noble and learned Lord, Lord Falconer, in this and the following group seek to achieve. I welcome the amendments in this group, essentially for the reasons given by the noble and learned Lord, which there is no point in my repeating.
However, Amendment 16, which would remove the reference to model laws, is particularly important for two reasons. First, as the noble and learned Lord said, model laws are not international conventions but, as expressed by the Bar Council, collections of soft law provisions which often need to be modified substantially before being given effect in domestic law. The noble and learned Lord, Lord Falconer, illustrated that very well with the example of insolvency. Secondly, model laws are not subject to the provisions of CRaG and cannot benefit from such “limited and flawed” comfort—in the words of the Constitution Committee from April 2019, repeated today by the noble and learned Lord, Lord Mance —as may be given by the operation of its mechanisms.
That said, I incline to think that these amendments, even viewed collectively, are insufficient to meet the substantial constitutional concerns that the Constitution Committee identified in its recent report on this Bill, concerns which to my mind the Minister has not yet allayed, for example with his remarks on timing and reputational damage. That is a matter for the debate on whether Clause 2 should stand part, on which I see that a good deal of firepower has been virtually assembled and which I do not seek to pre-empt or express a final view on at this stage.
Finally, I think we all want to acknowledge the enormous efforts made by the staff of the House to ensure that debates on legislation such as this can take place in a coherent manner. I hope that I do not tempt the fates by saying that. However, I echo the comments of my noble friend Lord Pannick and the noble Lord, Lord Adonis, that voting on the Bill must be possible, by whatever means, when it is brought back on Report. I am grateful for the reassuring words of the Minister on that, but I would be even more grateful if he would upgrade his reassurance into an undertaking, which I think he indicated it was not.
Lord Falconer of Thoroton
The extraordinary tedium of that answer should not detract from the enormity of what the Minister has just said. He basically said “I can’t really give you a definition in the Bill of a private international law agreement but we, the Government, will know it when we see it. Yes, it’s true that we’re taking power to do things that nobody really wants us to do, but generally we won’t do it—and if we were thinking of doing it, we’d consult first.” That was in relation to arbitral awards. In relation to model laws, he was saying, “It did occur to us that this looked like quite a convenient power for us to have, so could we have it?”
My answer is that this debate illustrates what a danger Clause 2 constitutes. I also look with real scepticism at the suggestion that the Government would consult, when they did not consult the Lord Chancellor’s Advisory Committee on Private International Law, chaired by the noble and learned Lord, Lord Mance, at all on the network of private international law instruments they introduced in the light of us leaving the European Union; they did not consult at all on this constitutionally unacceptable Bill. Although it was very hard for us to listen to that speech, it was quite an important one. I beg leave to withdraw my amendment.
Lord Falconer of Thoroton
My Lords, we have adumbrated many of the same points over and over, because they keep coming up again and again, so I will try to restrict my remarks on these amendments to essentially only new points. This group of amendments effectively deletes the Government’s regulation-making power where the regulations in effect intend to say how an international treaty shall apply either as between Scotland, England, Wales and Northern Ireland—within the United Kingdom—or as between the United Kingdom and the Isle of Man, any of the Channel Islands or a British Overseas Territory.
The effect of my amendment is that the Clause 2 power cannot be used where it is proposed to apply an international convention between the parts of the UK; to apply an international convention between the UK and a relevant territory; or to amend, extend, adapt or revoke any declaration made at the time of ratification. It is wholly wrong that any of these things should be done by regulation as opposed to primary legislation. I use these amendments simply to indicate the width of the power being sought. I beg to move.
Lord Wallace of Tankerness (LD)
My Lords, I will make two preliminary points. The first echoes what has been said in many of our proceedings so far this afternoon. Perhaps not surprisingly, as a member of the Constitution Committee, I do not think that Clause 2 should be in the Bill, for all the reasons already outlined both in committee reports and by a number of your Lordships in debates on earlier groups. I have not yet been persuaded or heard any argument to the contrary, so my primary position is that Clause 2 should not be there.
The second point is that, where these amendments relate to jurisdictions within the United Kingdom, it is a question not of whether it should be done but of how. In his response to the first group of amendments, the noble and learned Lord, Lord Keen, gave some good reasons why, as a matter of public policy, there should be certainty in the arrangements, for argument’s sake, for enforcing a Scottish court’s order in England, as there would be for enforcing an English court’s orders in France. Therefore, it is a question not of whether there is merit in having some kind of intra-UK arrangements but rather of how it should be done.
During Second Reading I reflected briefly on this and referred to the briefing from the Bar Council. It is perhaps worth going back to it and reminding ourselves what it said in relation to the provisions in Schedule 6:
“The question, however, whether to apply an international convention’s rules between parts of the United Kingdom is often a very difficult one. Where it is to be applied, extensive amendments to that convention are often appropriate, (an example being the provisions in the Civil Jurisdiction and Judgments Act 1982, which apply a substantially modified form of the European Union rules to intra-United Kingdom cases). The Bar Council is concerned that schedule 6 does not provide sufficient safeguards in this respect and considers that it should be amended to provide the requisite clarification.”
I endorse that. It is not a question about whether it should be done. We have heard that, for example, in the Civil Jurisdiction and Judgments Act 1982 there were requirements to amend or change the rules for intra-UK cases.
It is also important to note that we are giving powers to the national authorities—not just the United Kingdom Parliament but to Scottish Ministers and Northern Ireland Assembly Ministers. As far as I can see—I stand to be corrected if I have not noticed something —these regulations would be brought in without any consultation between the different Administrations. There is no doubt that private international law is a devolved matter as far as the Scottish Parliament is concerned, but negotiating international treaties does not affect the sovereignty of the United Kingdom, and it seems to make some sense that there should be some negotiation, or at least consultation and discussion among the constituent parts of the United Kingdom, before regulations are brought forward. As far as I can see, neither Clause 2(2) nor Schedule 6 makes any provision for that.
My position is that it is not a question about whether it is right and proper that there should be intra-UK arrangements but rather that what is proposed in the Bill does not provide adequate safeguards about how that should be done.
Lord Falconer of Thoroton
The Minister remorselessly misses the point over a period of time. The purpose of the amendment is to ask the question: is it right that you can have a different private international law settlement as between the two countries or as between the United Kingdom and the other territories? Should that be decided upon by a Minister without primary legislation? The way the Minister answers that is to say, “You have to assume that it’s got to be done by secondary legislation”, which does not deal at all with the point. I beg leave to withdraw my amendment.
Lord Thomas of Gresford
My Lords, I am of course speaking as a Welshman. We have a very limited interest in the provisions being discussed, but I have some questions. Since the time of Henry VIII, who has a great deal to answer for, the jurisdiction of England and Wales has been merged. Only in very recent years has there been a suggestion that Wales should have its separate jurisdiction. We are one of the three jurisdictions that will be subject to the Bill’s provisions; we go along with England. I would like to know whether there is any prospect of consultation with Welsh Ministers about what provisions are being brought into effect, because private international law covers such a wide range of things. It has particular relevance to family life in Wales as much as anywhere else. Will there be any consultation? If so, what will it be?
Lord Falconer of Thoroton
I simply underline the points made by my noble friend Lord Foulkes and the noble and learned Lords, Lord Wallace and Lord Hope. As far as my noble friend Lord Foulkes is concerned, the purpose of these amendments is to probe; as far as I am concerned, they illustrate the lack of thought that has gone into Clause 2. They simply underline the sense that there should not be a Clause 2.
Lord Keen of Elie
My Lords, I am obliged to the noble Lord, Lord Foulkes of Cumnock, for tabling what he very candidly pointed out were probing amendments. I am also obliged to the noble and learned Lord, Lord Wallace, who drew on his experience of the devolved Administrations and was able to outline the position in this matter. I will come in a moment to address the questions raised by the noble and learned Lord, Lord Hope, in the context of these provisions.
As the noble Lord, Lord Foulkes, pointed out, two authorities are identified in this part of the Bill that might proceed to implement matters of private international law in Scotland. That is consistent with legislation in other areas. The Secretary of State might decide, with the consent of the Scottish Ministers, to make UK-wide provision for implementation. That is why he is one of the identified national authorities, because there are circumstances in which the Scottish Ministers would be entirely content for there to be UK-wide provision.
Alternatively, if that is not the case, Scottish Ministers may themselves then proceed as a national authority to implement the matter in domestic law. That is because, as the noble and learned Lord, Lord Wallace, pointed out, the position is that—I am sorry, something came up on another phone and rather distracted me—the implementation of private international law is a devolved issue under the Scotland Act, so allowance is made for both provisions.
As regards this Bill, an LCM was discussed between officials. The Scottish Ministers have recommended that such an LCM should be provided, and the noble and learned Lord, Lord Wallace, pointed out the terms of the recommendation that Scottish Ministers have made to the Scottish Parliament with regard to this matter. Indeed, there was prior discussion about these proposals last year, when the Lord Chancellor, for example, was in communication with the Scottish Government on matters of the convention. Perhaps I can clarify this by reference to the points made by the noble and learned Lord, Lord Hope. The Secretary of State may be a national authority with the consent of Scottish Ministers because Scottish Ministers may, as sometimes happens, wish to see UK-wide regulations made here for implementation. Alternatively, as the national authority, they may choose to do that for themselves. The Secretary of State clearly does have the power to do that because under the Scotland Act there is the power to legislate for the entirety of the United Kingdom as regards the implementation of a matter that is otherwise within the devolved competences, so that does not raise an issue either.
With regard to the matter of whether or when it would be one national authority or the other, that is simply a matter that will be discussed, as it is in other contexts, between the United Kingdom Government and Scottish Ministers. If Scottish Ministers are content that the UK Government should legislate UK-wide on this matter, that will happen. If they are content for that to be done, then Scottish Ministers will deal with the matter. The Secretary of State cannot deal with the matter without the consent of Scottish Ministers, so I hope that that puts minds at rest in this regard.
As regards the identification of the Secretary of State as an authority and the reference, for example, in the Scotland Act to a Minister of the Crown, I accept that the reference in this Bill is more limited. Because I cannot answer immediately, I will consider why it was thought appropriate to limit it to the Secretary of State as opposed to the wider reference to a Minister of the Crown. But I will look at that to see whether there is an issue there that needs to be addressed.
As regards consultation on the implementation of international treaties, that is not an issue, but as regards entering into international treaties, that is of course a reserved matter. I recognise that it is appropriate that Scottish Ministers and others should be consulted on these matters for their interests when they arise. I do not understand that to be a difficulty in this context, nor a matter that would require express provisions in the terms of this Bill.
I thank the noble Lord, Lord Foulkes of Cumnock, for his probing amendment and I hope that I have been able to put minds at rest as regards why there are two identified national authorities for the purposes of Clause 2. In the event that Clause 2 stands, these are appropriate alternative mechanisms for the implementation of these provisions.
One final matter raised by the noble Lord, Lord Foulkes, was the issue of contract, but of course, where you have a contract, it will have a choice of jurisdiction and a choice of law. If the contract has Scotland as a choice of jurisdiction and Scots law as the choice of law, that will be binding if we have a situation in which, for instance, the Lugano provision applies. I hope that that answers the query in so far as I have understood it.
I cannot give a precise date for the provision of the LCM, but as the noble and learned Lord, Lord Wallace of Tankerness, himself indicated, Scottish Ministers have recommended the granting of an LCM, and it is not anticipated that there will be any difficulty. With that, I invite the noble Lord to withdraw the amendment.
Lord Keen of Elie
My Lords, I thank the noble Lord for what I understand are, again, probing amendments. As I perhaps explained, the Crown dependencies and overseas territories have a constitutional relationship with the United Kingdom whereby the United Kingdom is responsible for their foreign relations. This means that the Crown dependencies and overseas territories do not generally themselves join international agreements, including agreements in the area of private international law, which we are concerned with here. Instead, an agreement that applies in the United Kingdom can usually be extended to apply also in a Crown dependency or overseas territory. We work with those Crown dependencies and overseas territories to determine where and when they would wish to have a private international law agreement apply between them and other contracting parties. The scope of the United Kingdom’s ratification of that agreement is then extended to them. This means that multilateral agreements extended to the Crown dependencies and overseas territories apply only between those jurisdictions on the one hand and the other contracting parties on the other, but not between the Crown dependencies and overseas territories and the UK. To apply the agreement with the UK, there needs to be a separate mirroring arrangement, as it is sometimes termed. I referred to that in responding to earlier amendments.
The general power within Clause 2(3) allows the United Kingdom to maintain and develop a private international law framework with the Crown dependencies and overseas territories as well as with foreign partners. That is the intent here.
The noble Lord asked about consultation. There was consultation, not with the governors of the Crown dependencies and overseas territories, but with each attorney-general and their officials. My understanding is that they were entirely content with the way in which these provisions are extended to the benefit of the Crown dependencies and overseas territories.
The noble Lord raised the question of entrustment. It does not directly arise in this context, but entrustment is where the United Kingdom essentially consents to a Crown dependency, for example, entering into an agreement at the level of international law. That can sometimes happen where, for example, a Crown dependency wants a reciprocal agreement with a foreign partner.
The behaviour of the overseas territories is monitored by the Foreign and Commonwealth Office and there are instances in which, for the purposes of good governance, the United Kingdom will intervene in the affairs of an overseas territory. The noble Lord himself gave an example in respect of the Turks and Caicos Islands where that has been done.
As regards the choice of court or arbitration that the noble Lord referred to, in so far as I understand his point, I would respond that it is up to parties to a private contract to determine how their disputes, if any, will be resolved. For that purpose, the parties can choose a law or legal system to apply to their private contract and the jurisdiction in which their disputes will be resolved. That is an issue that arises only in the context of their private contract and in the context of what we are dealing with here, which is private international law. At the level of private international law, we are concerned with the way in which other jurisdictions respect that law, respect the choice of jurisdiction and, indeed, then respect the judgment of that jurisdiction when it comes to enforcement.
I hope that answers the points raised by the noble Lord. I thank him for the probing amendments, but I invite him to withdraw Amendment 14.
The Deputy Chairman of Committees
I remind noble Lords that anyone wishing to speak after the Minister should email the clerk during the debate. It would be helpful if anyone intending to say “Not content” when the question is put made that clear during debate. It takes unanimity to amend the Bill in this Committee; this Committee cannot divide.
Lord Falconer of Thoroton
My Lords, I believe that Clause 2 should not stand part of the Bill. We have discussed these matters at considerable length today. I simply make the point that it will be constitutionally unprecedented if we end up in a situation where the Government have complete power in relation to private international law agreements in the future, not only to implement the changes to domestic law that are required by secondary legislation but to make regulations that relate to those agreements or connect with them, which goes very much wider than the terms of the agreement itself.
We have discussed considerably today the justification for this unprecedented power and it has been demonstrated —mainly on the question about timely implementation—not to withstand any degree of examination. I feel strongly that the House should reject Clause 2; we cannot do it in this Committee but, when the time comes, we should vote to remove it from the Bill. I think it is a separate debate as to whether there should be a special power in relation to Lugano, but this provision gives unlimited power for an unlimited time to introduce the consequences of international agreements into our domestic law with no primary legislation.
One final point, which has been made by the Constitution Committee, is that the consequence of doing this by secondary legislation is that it can be challenged in the courts and set aside by the courts on the grounds of judicial review. So not only is it constitutionally inappropriate, not only will it damage the quality of our private international law, but it will lead to legal uncertainty. Actions will be brought in court but set aside. I will invite the House on Report not to allow this provision to stand part. There is unanimity in this Committee with the exception—the plucky exception—of the Minister in that respect.
Lord Pannick
My Lords, I agree with the observations of the noble and learned Lord, Lord Falconer of Thoroton. I gave my reasons earlier for thinking that Clause 2 should not stand part and I shall not repeat them. I shall add just one further point. There has been discussion this afternoon, particularly from the noble Lords, Lord Adonis and Lord Foulkes of Cumnock, about the disadvantages of Virtual Proceedings, disadvantages notwithstanding the exceptional efforts made by the clerks and the staff, for which we are all very grateful, to ensure that these Virtual Proceedings can take place. The additional disadvantage that I want to mention—additional to those who have already been identified—arises from the correct observation of the noble and learned Lord that the Minister stands alone on this subject; all other speakers have explained why Clause 2 is objectionable.
The point is that if we were on the Floor of the House, the Minister would not just hear and see those who are speaking; he would see and hear expressions of disapproval from all around the House, including from his own Benches; he would sense the degree of concern that there undoubtedly is about the constitutional implications of Clause 2. This debate has highlighted those concerns, but I hope the Minister will understand that there is a very widespread concern around the House, not just from those who have spoken today but from those who would be present in Committee were normal proceedings to apply. By their presence and their body language, other Members of the Committee would indicate their profound concern. I hope he will take all that into account before Report.
Terrorist Offenders (Restriction of Early Release) Bill
Lord Falconer of Thoroton 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 Falconer of Thoroton (Lab)
My Lords, I support this Bill, save in one significant respect: increasing the point at which existing prisoners will be considered for release, from half to two-thirds of their determinate sentence. I agree with noble Lords who have said that we need a breathing space, but we can achieve that simply by introducing the Parole Board and asking it to consider existing prisoners’ release at half-time.
The Bill does three things. It provides a new sentencing regime for future terrorists—I have no objection to that—and does two things in relation to existing prisoners: it increases their release date from half-time to two-thirds and prevents release being automatic, and brings in the Parole Board at two-thirds. I have no objection to bringing in the board in relation to existing prisoners, as that will allow the state to consider whether or not that prisoner is safe to be released. If we as a state need a breathing period in respect of that prisoner, bringing in the Parole Board to make a decision deals with that.
What is objectionable as a matter of principle is increasing the length of sentence retrospectively. It is a terrible agony for me to disagree with the noble and learned Lord, Lord Judge, but he did not state in a way that I found compelling the position regarding how long existing prisoners are in prison for. Where there is a determinate sentence for this cohort of terrorists, they are automatically released at half-time without the intervention of the Parole Board. It is not a matter of discretion but of duty for the Secretary of State to release them. If the Secretary of State did not do so, there could be litigation and she would be compelled to do so.
If that period is increased from half-time to two-thirds, the sentence is increased retrospectively. What is so objectionable about retrospectively increasing a sentence is that it is not the courts that then decide how long the person is in prison for, it is the Executive or the legislature deciding, frequently pursuant to public pressure. That really undermines the rule of law.
Should we allow that? Article 7.1 does not allow it at all under the Human Rights Act; there is no entitlement to derogate from that principle, because that is the way despots behave. The common law is more flexible; it will allow derogation from the principle of retrospectivity by saying, as we are doing, “All your sentences are increased from half to two-thirds.” Whatever sophistry is put forward, that is what is happening. The justification is given, and the noble Baroness, Lady Neville-Jones, put it well, that we need a breathing space. But you get your breathing space if you bring in the Parole Board to look at half-time and determine whether you can release that person, and do so only if it is safe to do so.
If and to the extent that one needs to take a proportionate step to protect the public—everybody who has debated this so far, including me, agrees that a proportionate step needs to be taken—that step is to let the Parole Board say, “Is this person safe to release?” If he or she is not, they are not released at half-time and you have the breathing space. I can see no justification whatever, whether it be under common law or the human rights convention, Article 7.1, for saying, “Up it from a half to two-thirds.” It is worth pointing out that the person who committed the atrocities in Streatham would have been released four months later if his custody had been increased from a half to two-thirds. He would not have been released at all until the end of his sentence if the Parole Board had been brought in, so you solve the problem by bringing in the Parole Board.
I am very happy to say that the noble Lord, Lord Anderson of Ipswich, has tabled an amendment that accepts the proposition that the Parole Board should be brought in at half-time in relation to existing prisoners, but puts to one side the increase from a half to two-thirds. That is the right course for the legislature to take to deal with the problem of the risk and to deal with the need to give a breathing space. That would not infringe the principle that we have always accepted. We should not as a legislature say to a group of people—whether justified or not, because it will not be justified to keep some of those people in beyond half their sentence—that we the legislature, not the courts, are deciding what your sentence is.
Lord Keen of Elie
I misheard the noble Lord, and I apologise to him for that. I had understood him to refer to the issue of the sentence being retrospectively changed, as reflected in the observations of the noble and learned Lord, Lord Falconer, and the noble Lord, Lord Marks.
The point I wish to make has already been touched upon by the noble Lord, Lord Pannick. The position is simply this. There is an established line of case law up to the Criminal Division of the Court of Appeal that a court should pass a sentence that is commensurate to the offending behaviour in relation to the offence committed, without any consideration of any possible early release. In other words, early release under licence and the various ramifications of that are an irrelevant consideration to the courts on sentencing. That is reflected by the Court of Appeal decisions in Round in 2009 and Bright in 2008. So it is not a case of retrospective change to sentence. Somebody is sentenced to a period of, say, four years. There is then a statutory provision whereby the Secretary of State comes under a duty to release at a certain point in the sentence. The current position with regard to the type of sentence we are dealing with is release at the halfway stage. In response to an observation by the noble and learned Lord, Lord Judge, I say that the Secretary of State has a duty to obtemper that statutory obligation and, I suspect, would be faced with a writ of habeas corpus if he did not. There is a clear duty there, and there is no way around that.
The true retrospective nature of this legislation, insofar as it is at all retrospective, comes from the application of the provisions with regard to the Parole Board, with which everyone appears to be in agreement. Under the present statute, a prisoner is entitled to automatic release at the halfway stage. We now propose—and everyone appears to agree—that this should not be the case and that they should have to satisfy the requirements of the Parole Board before they are released. So a prisoner who anticipated automatic release will no longer be able to do so, because the provision with regard to the Parole Board is that it must be satisfied that it is no longer necessary for the protection of the public that the prisoner should be confined. That is the retrospective element in all this.
The noble Lord, Lord Pannick, then asked: why apply that at the two-thirds point in the sentence rather than at the halfway point? There are a number of reasons behind the provision in the Bill extending the period of imprisonment from half to two-thirds of the sentence. The most immediate was reflected in an observation from noble Lords that this Bill gave a breathing space. That is certainly required at present, because we face a situation in which we are placing a quite considerable obligation on the Parole Board to bring forward expertise and examination of individual prisoners, in circumstances in which a number of these offenders are due for release at the halfway point in a matter of days. In the interim period, therefore, it is necessary that we are able to accommodate that very real risk.
In addition, it brings the sentence into a position that is consistent with other sentences, where the period is two-thirds. We suggest that it allows for a further period of incapacitation of terrorist offenders—it may seem limited in some instances, but not in all—and confers a degree of public confidence on those concerned about recent behaviour and recent events.
Lord Falconer of Thoroton
I make it clear that I have no problem with imposing the Parole Board. Equally, Equally, I understand the point that the noble Lord, Lord Faulks, made and that the Minister is making, that there will be quite a lot to deal with. But I understand that the effect of the Bill will be that you cannot be released automatically until the Parole Board has said you can be, so there will not be a problem on the basis of the draft of the Bill. The bit I question the Minister on—I find it completely incomprehensible—is that he appears to be saying that moving it from half to two-thirds is part of the administration of the sentence and therefore not caught by retrospectivity, but that removing release from automaticity is part of the sentence. I just do not follow that.
Terrorist Offenders (Restriction of Early Release) Bill
Lord Falconer of Thoroton 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 Falconer of Thoroton (Lab)
My Lords, I strongly support the amendment tabled by the noble Lord, Lord Anderson. It grieves me to do so because I am disagreeing with the noble and learned Lord, Lord Mackay of Clashfern, but this is emergency legislation, so described. Put aside the question of precisely what Article 7 means or how the presumption against retrospectivity works; it is essentially a bad thing for a legislature to change the sentence of everybody in a particular group. Everybody accepts that proposition, except, possibly, one noble Lord who said that it would be good if everybody’s sentence went up—but let us put that to one side. It is bad for a legislature to change a whole cohort sentence because you should be sentenced by the courts, not by a legislature that subsequently takes a different view, primarily because of public pressure. It may be legitimate public pressure, but it is public pressure nevertheless.
There may be circumstances that make it necessary to break with that principle. If you have to break with it, break with it to the minimum degree required to provide public protection. I do not agree with the “in for a penny, in for a pound” approach of the noble Viscount, Lord Hailsham: that if there is some justification for retrospectivity, any retrospectivity is justified. That cannot be the right approach.
The problem here is that prisoners may well be very dangerous—the Streatham terrorist was plainly and evidently dangerous, because he had said that he wanted to commit very dangerous crimes—and yet they have to be released. The solution is to make sure that somebody looks at every individual case and that those people can be released only if, in the words of the Bill,
“the Parole Board is satisfied that it is no longer necessary for the protection of the public that the prisoner should be confined.”
So, unless the Parole Board is satisfied that the person is no longer a danger, they must be kept in prison.
On the right way to approach this, instead of saying that everybody must stay in prison for longer, even if they are evidently no longer a danger, the right course is for everybody to be looked at. As the noble and learned Lord, Lord Mackay of Clashfern, says, it might be that we cannot reach everybody by the time they are half way through their sentence. That is dealt with by the perfectly adequate drafting in this Bill, which says that you can be released by the Secretary of State only after you have been examined by the Parole Board and it has directed that you can be released. Therefore, the factor that determines when you get released is not that you have to wait until you are two-thirds of the way through your sentence before it is considered, but that you are considered at half-time and, if there is a delay while the Parole Board gets its act together, you the prisoner must wait, and the problem is solved. Of course there are difficulties in making an assessment, but there is that difficulty whether it is two-thirds of the way through a sentence or halfway through. It is fundamentally wrong that we just up it to two-thirds for no good reason in the context of emergency legislation.
I shall make one more point and then give way to the noble Lord, Lord Cormack. I do not accept the proposition being advanced that this provision, which increases detention from a half to two-thirds, would not offend against Article 7; nor do I accept that it would not offend against the presumption against retrospectivity. All the Article 7 cases are about changing the terms. So, in the Uttley case, somebody comes out with some terms on release, whereas previously there would have been no terms on release. In another case where it is held not to be retrospective under Article 7, a person is moved from one country to another and different provisions apply; but that was the provision right from the start. In the Aberdeen case, which the noble Lord, Lord Pannick, relied on—sadly, he is not here—somebody was released and then recalled. The rules changed regarding what happens when you are recalled. These examples do not go to the fundamental point of keeping you in prison for longer.
In the one case in which that matter was considered by the European Court of Human Rights, the Inés Del Río Prada case, the fundamental reason why it was held to be retrospective was that a sentence was changed because time off for work in prison suddenly began to count in a different way and, instead of getting out in 2008, the unfortunate prisoner was not going to get out until 2017. That was held to be in breach of the retrospectivity rule. I find it very difficult to distinguish this case from that case, whereas it is easy to distinguish all those other cases in which the precise terms changed but not the length of time in prison.
However, that is not the prime way in which I put my case, which is that if we are in emergency legislation going to impose this provision, we should not be upping the sentence if we can meet the emergency with the introduction of the Parole Board. We can do so and should do no more than that now. I give way to the noble Lord, Lord Cormack.
Lord Cormack (Con)
I would rather make my own comments, because the noble Lord did not give way at the point at which I wished to intervene when he was talking about the two cases that are the reason behind this emergency legislation. He talked about the Streatham stabbings. What he failed to acknowledge was that the really dangerous terrorist was the one at Fishmongers’ Hall, who had feigned conversion and then turned on the very man who had been his mentor. That, in a nutshell, illustrates why it is important that we have this emergency legislation. I made it plain in my speech at Second Reading that this is only the beginning. We want substantial legislation; my noble friend has promised it and we must hold him to that promise. But we need to pass this tonight without further ado, and I very much hope that the noble Lord, Lord Anderson, who made an extremely good case with great eloquence, will feel able to withdraw his amendment.
Sentencing (Pre-consolidation Amendments) Bill [HL] (Law Commission Bill)
Lord Falconer of Thoroton ExcerptsTuesday 11th February 2020
(4 years, 2 months ago)
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Lord Falconer of Thoroton (Lab)
I speak for the whole House in congratulating the noble and learned Baroness, Lady Hallett, on her absolutely excellent maiden speech. The House has got a taste of what is to come. For me it is a huge personal pleasure to follow her in this debate. I have known her for very many years. She is one of quite a small number of people who have been profound change-makers in the law, and without any fuss. As she said, she was an advocate for 27 years; she did not mention that she was the chair of the Bar. As it happens, she was the first woman chair of the Bar, but that makes no difference to the fact that she was among the best of them. She was a judge who was in effect in charge of criminal sentencing for a long period of time in the Court of Appeal. She is testament to the stupidity of the judicial service arrangements that forced her to retire too young, and testament to the inadequacy of the judicial appointments arrangements in that she did not become the Lord Chief Justice. One of the things about the noble and learned Baroness is that she knows just as much about human beings as she does about the law. I am absolutely sure that the best is yet to come.
I move to the Bill. I, like all other noble Lords who have spoken in this debate, commend this short but important paving Bill towards a sentencing code. The effect of this Bill and the Bill it paves the way for will be very significant to the performance of the criminal justice system. The noble and learned Lord, Lord Judge, and the noble and learned Baroness, Lady Hallett, have explained the current position. As a result of a random test in 2012, the Law Commission made available to us the statistic that 36% of sentences are unlawful. That does not mean that they were just too long as judgments, but that they were passed contrary to the terms of the statute allowing them. We are a country that prides itself on the rule of law. If over a third of the sentences that are passed are unlawful, there is something wrong with the law and we need to change it.
There is unanimity among those who practise in the criminal justice system, whether advocates, prosecutors or judges, that there should be change. As the noble and learned Lord, Lord Judge, has pointed out, this Bill and that which it paves the way for has been, as the Prime Minister would say, oven-ready since May 2019. Some time will pass before this paving Bill gets through and thereafter—and only thereafter—does the sentencing code come. I strongly urge the Government, as the noble and learned Lord, Lord Judge, has done, to deal with this as quickly as possible. It is something on which Parliament agrees; there is no reason for delay.
I will mention three specific points. First, I congratulate the Law Commission on its work, particularly the clean sweep principle, which allows the courts to adjudicate what the right sentence is based on one statute only, in effect the sentencing code when it comes. I congratulate the Law Commission on coming up with a principle as sensible and simple as the clean sweep.
Secondly, I agree with the Law Commission that it has to protect the principle of retrospectivity and particularly that you cannot be sentenced at a higher level than the sentence that applied at the time you committed the offence. It preserves that in the Bill and it is right to. The House is going to come back to that issue in the Terrorist Offenders (Restriction of Early Release) Bill that was published today. The effect of that Bill is, for no doubt good policy reasons, to transform the time before release for terrorist offenders on determinate sentences from half way through the sentence and automatically to two-thirds of the way through, and then with the approval of the Parole Board only.
A question arises as to whether that changes a sentence after the commission of the offences. I am aware of cases, particularly that of Uttley in the House of Lords in 2004, which suggest that it is relevant to focus on the maximum in the sentence, and only if the new sentence is higher than the maximum would it be retrospective. I have anxieties about that, because a statute is being passed that will unquestionably increase significantly the time that people spend in prison. The principle of preventing retrospectivity is that you should not, after the event—maybe by a statute driven by public opinion—change somebody’s sentence for the worse. It should be the courts, in accordance with law, that fix the sentence, not public opinion subsequently. But that is a debate for another day.
My third point is again one that the noble and learned Lord, Lord Judge, has already made. The intention of the sentencing code is that it is to be one statute to which judges can refer in order to determine what the sentence is. That works only if in years to come, amendments to sentencing abide by the principle of the sentencing code. It is worth drawing attention to the fact that substantial changes were made to sentencing in 1991, 1993, 1997, 1998, 2000, 2002, 2003, 2005, 2007, 2008, 2009, 2012, 2014, 2015, 2018 and 2019. I say in parenthesis that even Brexit did not stop the change in sentencing. It is extremely unlikely that that pattern will not continue after the sentencing code is passed.
In order for the code’s principles to be given effect, four principles need to be adhered to. First, any changes in sentencing should be made by changing the terms of the sentencing code, not in a new document. Secondly, if any changes do not come into force straightaway, they should be put into Schedule 22 to the sentencing code so that people can see that it is one which has not come into force straightaway. Thirdly, any new arrangements should maintain the principle of the clean sweep, and fourthly, any commencement information should be included in the Bill. Only if the principles of the sentencing code are adhered to as we go forward will the very brilliant work of Professor Ormerod and his team take us through into the future.
I strongly support this Bill and I hope that it becomes law, and that the sentencing code which is to follow it becomes law as quickly as possible.