European Union (Withdrawal) Bill

Debate between Lord McNally and Viscount Hailsham

Committee: 6th sitting (Hansard): House of Lords
Monday 12th March 2018 Lords Chamber

[Viscount Hailsham]

My Lords, in view of what my noble friend has said, I can be very brief. I support the first four amendments in this group, to which I have set my name, and have ventured to put forward a sort of default position in my Amendment 340. As the Committee will appreciate, the purpose of the first four amendments is to ensure that the regulatory power now under discussion cannot be used to create a criminal offence, and the noble and learned Lord, Lord Judge, has set out very clearly the reasons for this. Amendment 340, which stands in my name, is the default position, so that if by any evil chance this Committee or your Lordships’ House decided that it was right to create a criminal offence, it should be one that does not attract a custodial sentence.

We need to be quite plain about what we are talking about. The Bill as presently drafted enables the Minister, if he deems it appropriate and subject to the affirmative resolution, to create a criminal offence that attracts a custodial sentence of up to two years. Two years is not an insignificant period, and it is very important that one reminds oneself that the test is whether the Minister thinks it is appropriate. Furthermore, we must go on reminding ourselves that the procedure—that is the affirmative resolution procedure—is simply not subject to amendment. So this is, in effect, the power to introduce a criminal offence which attracts a custodial sentence by fiat or declaration. I find that profoundly unattractive.

As a former Minister who signed an awful lot of statutory instruments, I know that the degree of ministerial oversight is extremely limited. As I said, if this Committee decides that a criminal offence should be creatable in this way, then surely it should not attract a custodial sentence of any kind.

[Lord McNally (LD)]

My Lords, my name has been added to a number of the amendments in this group and I appreciate the Minister’s intervention, which should make this debate fairly short. I want to take up an earlier point made by the noble Viscount, Lord Ridley: he said that he thought some of the speeches were too long and bordering on filibustering. That set a little alarm bell ringing in my mind. I have sat in on some of the debates and I have read others, and I think that this Bill is being handled by this House in the appropriate way that it deserves. Some of the speeches, from all the Benches, have been among the best I have heard in parliamentary debate.

The Minister, in referring to his Privy Council Bench, said that they were poachers turned gamekeepers. I say, en passant, that I look on them as sinners turned penitents, but that is a matter of taste really.

As I say, there have been some magnificent debates, but I worry where we are going on this. Sometimes I wonder whether the Ministers are adopting the tactics of the great boxing champion Muhammad Ali. His “rope a dope” strategy was to take all the punishment in the early stages and then have his own way in the later stages of the fight.

I hear what many noble Lords have said—the noble Lord, Lord Cormack, among them—that of course the House of Lords can go only so far with its opposition in the face of the Commons. The contribution from the father of the noble Viscount, Lord Hailsham, who warned of an elected dictatorship, comes into play here. So too does something I have mentioned on a number of occasions over the past 20 years that I have sat in this House: this House has the right to say no. We must ask ourselves why successive Governments, some with very large majorities in the House of Commons and some who have reformed this House from time to time, have left it with the right to say no. The reason is that unless we retain the right to say no, we would become a debating Chamber and the Government could simply use their Commons majority to force things through willy-nilly, regardless of whether or not we oppose them. I realise that, in some areas, we bow to the wishes of the elected House, even when we do not want certain things to go through.

As happened in the past two sittings of this Committee, we have discussed in great detail two very important constitutional issues: the right to impose taxation and, now, with this group of amendments, the right to create criminal offences. The proposals go to the very heart of our constitutional settlement and, in my opinion, to the very heart of the responsibilities of this House. Therefore, although I appreciate that a considerable promise was made at the opening of this debate, I say this to Ministers and to colleagues who have made outstanding speeches: regarding our red lines about the right to impose taxation and to create criminal offences, somewhere down the line, if what the Government come up with is not satisfactory, in our responsibility to defend the constitution this House must reserve the right to say no.

Sanctions and Anti-Money Laundering Bill [HL]

Debate between Lord McNally and Viscount Hailsham

Wednesday 17th January 2018 Lords Chamber

[Viscount Hailsham]

My Lords, I support what the noble and learned Lord has said. My own view is that the power in the Bill gives far too great a power to Ministers. The fact that this specific power is subject to the affirmative resolution procedure is not a sufficient safeguard, not least because—a point I have made time and again—the procedure does not provide a power of amendment.

Let us consider for a moment what this power enables the Government to do. It could be used in amending, revoking or repealing existing legislation or to extend classes of offence to which the amended legislation applied. It could be used to increase penalties. It could be used to remove statutory defences. It could be used to amend the definition of criminal intent. Indeed, it could make absolute offences that presently require proof of a specific intent. Because it is an amending power, it could be used to give further powers to the investigating officials or to increase the penalties imposed by the courts.

One can get a very good guide as to what could be done from the clause of the Bill on enforcement, Clause 16, where one can find among other things that the regulations could impose a sentence of imprisonment of up to 10 years. That could be done by regulation—without the power to amend. There is a further objection if one actually considers, just for a moment, the purpose that can be used to justify the regulations. Clause 1(2) states:

“A purpose is within this subsection if the appropriate Minister making the regulations considers that carrying out that purpose would—


(a) further the prevention of terrorism, in the United Kingdom or elsewhere,

(b) be in the interests of national security,

(c) be in the interests of international peace and security, or

(d) further a foreign policy objective of the government of the United Kingdom”.

Paragraph (a) is all right, but paragraph (b) is becoming pretty broad and paragraph (c) is even broader, and paragraph (d) refers to an objective that might never previously have been discussed by Parliament or even disclosed to an admiring public. We are enabling a Minister, by fiat, to introduce regulations of that kind.

There are well-intentioned Ministers on the Front Bench such as the noble Lord, Lord Young. We have known each other for almost 60 years. I would no doubt be very content to let him have those powers. But then I ask myself whether I would want to give those powers to Mr McDonnell or Jeremy Corbyn. I suspect that nobody in your Lordships’ House tonight would wish to do that—certainly not the noble Lord, Lord Adonis, very sensible fellow that he is. I suspect that we would be paving the way to the elective dictatorship of which my father wrote and spoke.

If we are to do these things we do them by primary legislation, surely not by secondary legislation over which we have precious little control and when I know that the Whips will be very active with noble Lords who have never read the legislation. I do not know whether the noble and learned Lord will press his amendment, but, if he does, he will have my support.

[Lord McNally (LD)]

My Lords, John Major once gave some wise advice to the Conservative Party after it had been in office for nearly 18 years. He said, “Always remember that one day we will have to take the Conservative Party into opposition”. I always think it is rather reckless of a Government to legislate with the assumption that they will always be in power and that the powers they are giving themselves will always be used in the benign way that they intend.

I am pleased to follow the noble Viscount, Lord Hailsham. When I first came into this House, his father used to sit in the same seat. One of his more unnerving habits was to keep up a running commentary on speakers in a not so sotto voice. But the noble Viscount is quite right: 40 years ago in the Dimbleby lecture, his father warned precisely against an elective dictatorship—a Government with a majority in the Commons who could force through various Acts that would not be suitable in a parliamentary democracy.

The noble and learned Lord, Lord Judge, has done a great service to Parliament by challenging the Henry VIII clauses that are coming like a great flotilla down the channel towards us in the legislation that the Government have in mind.

I make only one plea, and not just to the noble Lord, Lord Ahmad; I am pleased that the noble Lord, Lord Young, is on the Front Bench as well. He is somebody with the parliamentary experience to tell No. 10 that it must think of a different way of dealing with this kind of legislation. Up with this the House will not put—I think I put that in the Churchillian way. Anyway, it will not. The Government must think again and the noble and learned Lord, Lord Judge, and others have offered to help them.

Data Protection Bill [HL]

Debate between Lord McNally and Viscount Hailsham

Report: 2nd sitting (Hansard): House of Lords
Wednesday 13th December 2017 Lords Chamber

[Viscount Hailsham]

Does the noble Lord accept that the amendment he supports will tilt the argument against free speech and chill the ability of the press to publish?

[Lord McNally]

No. The amendment I have put forward is exactly the finding of Leveson—that what was wrong in the 1998 Act was an imbalance the wrong way. That is what Leveson found and suggested that Parliament put right. There may be many other ways of putting it right, but to say that what Leveson did was somehow to be totally ignored ignores not only Leveson itself but the findings and support of both Houses of Parliament. Since Leveson and the setting up of the royal charter—I was the Minister involved with that—nobody could have tried more than that set of Ministers to find a solution that was as far away from state regulation as we could possibly find.