Victims and Prisoners Bill

Lord Thomas of Cwmgiedd Excerpts

Committee stage
Tuesday 13th February 2024 Lords Chamber

[Lord Thomas of Cwmgiedd (CB)]

I support the amendment of the noble and learned Lord, Lord Hope. There can be no disputing that independence is key, and it would be very sensible if the Bill was slightly amended to refer to the independent standing advocate, or something of that kind. Independence not being in dispute, the issue is how to safeguard it. Normally, independence is achieved by three things: the first is a process of appointment, which we have already discussed; the second is the provision of resources—again, that has been raised but I am not sure whether it has been entirely dealt with; the third, and most critical, is removal. It seems to me that that is what this amendment is concerned with.

There are two ways of removing to ensure independence: one is to specify the grounds in the Bill, while the other is to derive an independent process. One or the other will work. There are all kinds of processes, such as an independent parliamentary process or an independent tribunal. But bearing in mind the uniqueness of this post, it may be best to look at specifying in the Bill the grounds for removal. That is a matter for discussion and debate.

I do not wish to add anything about Amendment 129, save to support it, but I would add one observation on Amendment 132. It is critical to show that everything is open, and that if the standing advocate is to issue guidance, such guidance is made public. We do not want, in this area, questions relating to what is going on without the victims having full confidence.

[Lord Marks of Henley-on-Thames (LD)]

My Lords, I shall be relatively brief on this short group of amendments. I stated my support for the amendment of the noble and learned Lord, Lord Hope, in advance, in principle, during debate on the third group. I apologise for mentioning his amendment before he had had an opportunity to speak to it. However, his reasoning was a development of the reasoning that I then expressed. I reiterate his point: for an independent advocate system to work, the advocate must be independent. I take the point of the noble and learned Lord, Lord Thomas of Cwmgiedd, that if “independent” has only appeared, or might only appear, by virtue of the amendment of the noble Lord, Lord Ponsonby, that is wrong. We have all called it independent because the independent public advocacy scheme is a term that has been frequently used. The word “independent” ought to appear in the Bill specifically, and the independent standing advocate could be called exactly that to make the point clear.

That means that such an advocate must be able to advance the victims’ interests without a concern that they are liable to be removed by the Secretary of State without very good reason. For such reasons

“as the Secretary of State considers appropriate”,

which is the wording used in the Bill, is just not good enough. Nothing less than the formulation of the noble and learned Lord, Lord Hope, of them being

“unfit or unable to fulfil their functions”

will do as a justification for removal.

I take the point made by the noble and learned Lord, Lord Thomas. This could also be achieved by a process for termination, not simply by the grounds for termination. Those are not necessarily alternatives; we could have both approaches. I suggest that the Government ought to consider whether the process should not be strengthened. To make the point I have made before, the Bill is shot through with the difficulty that the interests of the victims may conflict with the interests of the Secretary of State. That important conflict of interest can be resolved only by removing power from the Secretary of State.

I turn to Amendment 129 in the name of the noble Lord, Lord Ponsonby, which proposes that office facilities may be afforded by the Ministry of Justice, provided that they do not compromise the functional independence of the standing advocate. That is another point on independence. It is plainly administratively convenient and may be necessary that the Ministry of Justice provides the office facilities, but that does not mean that the bodies are not completely separate, and they must be.

Amendment 128A in the name of the noble Lord, Lord Wills, to which I have added my name, was moved into the second group, but Amendment 129 remained in this group although they are on similar subjects. The noble Earl, Lord Howe, said that the noble Lord, Lord Roborough, would answer on Amendment 128A. The point I made was that proper secretarial support and resources are crucial for the standing advocate if the system is to work. The noble and learned Lord, Lord Thomas, made the point about resourcing in general terms but made it very powerfully. Appropriate support is essential for the role to be properly done, as are statutory guarantees of adequate resourcing.

Amendment 132 in the name of the noble Lord, Lord Ponsonby, deals with guidance to other appointed advocates on what matters they should consider in relation to a major incident. It is not right that such guidance should come from the Secretary of State. The Secretary of State may have interests in diverting attention to some aspects of a major incident against the interests of considering others. Guidance should come from the standing advocate who has, as the noble Earl, Lord Howe, put it earlier, a leadership role. That is the proper source of such guidance and not the Secretary of State, who has a political interest that may be opposed to the interests of the victims. I suggest that the Bill’s formulation on this is simply quite wrong in principle.

Victims and Prisoners Bill

Lord Thomas of Cwmgiedd Excerpts

Committee stage
Wednesday 7th February 2024 Lords Chamber

[Lord Thomas of Cwmgiedd (CB)]

My Lords, I will make three brief observations. First, I warmly commend Amendment 115. The law needs to balance very carefully the rights of the defendant and those of the victim. This is an admirable compromise, restricted to professional people, and I hope that it is a good example of the way that Parliament can move the law along to accord with present times.

Secondly, in relation to Amendment 102, consistency is critical. One must remember that the police will have to operate this, and it will be hard work for them as the law is made more and more complicated. Having slight differences between systems makes their life impossible. We need only to look at experience with search warrants and the terrible mess that was made of those to realise why it is essential to have consistency.

The third point relates to Amendment 78. There has been a lot of controversy as to whether victims of rape should have an advocate in court to represent them. As I understand the amendment, it goes nowhere near that; it is merely for advice. It seems to me that an awful lot of the difficulties that occur in rape cases could be solved by the victim having someone who is independent of the prosecution to talk to, because the prosecution cannot go to the extent of the help the victim needs. I am sure that, in the end, this would increase significantly confidence in the criminal justice system. The problem is cost; maybe the Government, with appropriate legislation, should try it in a series of pilots to see how it is best run, rather than rolling out nationwide.

[Baroness Finlay of Llandaff (CB)]

My Lords, I will make a very brief point, following on from that made by my noble and learned friend Lord Thomas of Cwmgiedd.

There is a group of victims who are particularly vulnerable: those with impairments in mental capacity, who may have difficulty in expressing and explaining what has happened to them and are vulnerable to misinterpretation of anything they say—they are in particular need of advocates who understand their needs.

Many years ago, I was asked by Gwent Police to assist them in a prosecution in relation to people with profound mental incapacity who had been abused and raped. It was very difficult to pull the evidence together, and it was a very steep learning curve to see how difficult it is to let the veracity of what they were trying to tell one be heard and come through. I hope the Government will recognise that there is a group in the population who are particularly vulnerable to exploitation and to sexual abuse by the very nature of having learning difficulties and impairments, and of course that also includes young people with autism—we know how vulnerable they are to influence, and to coercion into a situation that they believe.

Victims and Prisoners Bill

Lord Thomas of Cwmgiedd Excerpts

Committee stage
Wednesday 7th February 2024 Lords Chamber

[Baroness Hamwee (LD)]

My Lords, I raise an issue with regard to the time limit. It is not from the wording of the amendment, which I support, but the wording in the victims’ code. At the moment it says that, first:

“The Attorney General must consider the matter as soon as possible”.


What does that mean? Secondly, it says that they must do so

“no later than the 28th calendar day after the sentence was imposed … in business hours and”—

I emphasise this—

“with sufficient time for consideration”.

How can the victim know how long the Attorney-General needs before the 28 days runs out? It is a hard cut-off, but with something rather woolly leading up to it. The victims’ code could do with a little revision to make it quite clear, in addition to the points that my noble friend has made and the very tough example that she gave, just how this would operate. I would not know, to meet that condition, how long before the end of the 28 days I should get a note through the Attorney-General’s door.

[Lord Thomas of Cwmgiedd (CB)]

My Lords, I support the principle put forward by the noble Lord, Lord Sandhurst, that there should be proper information provided to victims. This should be proper in the widest sense, so that they fully understand; we do not want disappointment and secondary victimisation. The whole question of time limits and extending them is not a suitable matter for debate at this hour of the night. What is important is the principle.

--- Later in debate ---

[Lord Roborough (Con)]

My Lords, I thank my noble friend Lord Sandhurst for Amendment 113, in relation to the unduly lenient sentence scheme. It seeks to ensure victims and their families are given the necessary information about the scheme and, where this does not happen, provide for an extension of the relevant deadline. I understand the distress that victims may feel if they believe that the sentence given to an offender is not sufficient. The unduly lenient sentence scheme provides a way to ensure that victims, their families and members of the public can request for sentences for certain serious crimes to be challenged, by asking the Attorney-General to consider making an application to the Court of Appeal for a sentence to be reviewed.

Amendment 114 seeks to allow extension of the time limits for applications under the scheme, which must currently be made within 28 days of sentencing. However, the scheme has a fixed time limit to reflect the importance of finality in sentencing for both the victim and the offender. Although we will keep this this limit under consideration, there are no current plans to remove the certainty of this absolute time limit. The 28-day time limit reflects similar constraints on defendants appealing against conviction or sentence; it is important for both victims and offenders that we avoid ongoing uncertainty about the sentence to be served.

Amendment 113 puts forward a duty to inform victims and families of the scheme. It might reassure my noble friend to know that the current victims’ code is already clear that victims should be informed about the scheme by the police’s witness care units at the same time as they are told about the sentence; this is expected to be done within six days of sentencing. It may also help if I explain that “witness care unit” is the generic name for a police-led function that provides information and support to victims, as well as witnesses, in cases progressing through the criminal justice system. Under the victims’ code, the witness care unit is responsible for providing services to victims who are not witnesses in the trial, as well as those who are.

For example, under right 9 in the code, all victims are entitled to be told at the end of the case the outcome, including a brief summary of reasons for the decision where available. This also includes telling victims about the ULS scheme when they are told the sentence in the case, which is in paragraph 9.6 of the code. It is heartening to hear from the noble and learned Lord, Lord Garnier, that the scheme is well used, despite examples of where it has not worked being given by others in this short debate.

In answer to the noble Lady Baronesses, Lady Brinton and Lady Thornton, as part of the CPS’s bereaved family scheme, the CPS and the trial advocate will meet the family at the court following the sentence to explain it and answer any questions. The scheme will be highlighted in appropriate cases as part of this.

My noble friend Lord Sandhurst raised an unfortunate case in which consideration under the slip rule means that 28 days had elapsed. In general, the law officers and the Attorney-General’s Office endeavour to review any sentence referred to them, the only exception being those where there is insufficient time to do so; for example, if it is received late in the day, the statutory time limit runs out. In those cases where the slip rule applies, CPS guidance instructs prosecutors to apply for the sentence to be corrected under the slip rule quickly and within the 28-day period for the ULS scheme. This means that, if the application is unsuccessful, the Attorney-General is not time-barred from being able to make an application under the ULS scheme within the 28-day period.

Where there seems to be broad consensus in this debate is on the need to do better on informing victims and their families about their rights under the scheme. This has been brought up by the noble Baronesses, Lady Brinton, Lady Hamwee and Lady Newlove. I am open to discussing further with noble Lords how best to ensure that victims are better informed of the scheme and its deadline, but I respectfully ask that my noble friend withdraw his amendment.

[Lord Thomas of Cwmgiedd (CB)]

My Lords, would it be possible for the Minister to find out whether the police keep records of the notification of the witness unit and, if the records are kept, what the statistics reveal? This is really an argument about whether we have the right mechanism, rather than the principle. Obviously, the Minister cannot do that this evening, but if the Ministry of Justice or the Home Office could find out, that would alleviate the problem.

[Lord Roborough (Con)]

The noble and learned Lord makes a very sensible request, and I will do my best to write to him.

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[Lord Wills (Lab)]

My Lords, Amendments 119A to 119C in my name have been drafted to allow the independent public advocate to act for the victims of incidents, or series of events, that might have occurred before the passage of the Bill. As currently drafted, the Bill does not permit this.

Underpinning my original conception of the independent public advocate in my two Private Members’ Bills that were the genesis of this part of the Bill was the belief in the need for greater support and agency for those who had been failed by the state—which is meant to serve them—in what the Bill describes as “major incidents”. This is particularly the case when the full extent of such an incident may be revealed only over a period of time. In these circumstances, it is perverse to exclude from such support, which is outlined in the Bill the sub-postmasters whose lives were wrecked by the Horizon scandal, for example, or those whose lives were devastated by contaminated blood transfusions in the 1970s and 1980s, or by nuclear tests in the 1950s and 1960s. These are all catastrophic events that have, in some cases, become apparent only over quite a long period of time.

The victims need the support of the independent public advocate as they continue to search for justice and to right the wrongs that were done to them. These amendments will rectify this problem with the Bill’s current drafting. I beg to move.

[Lord Thomas of Cwmgiedd (CB)]

I have a very short amendment—wholly unrelated to what has just been put forward—and I thank those in the Whips’ Office for suggesting that it remain in this group, and not, as I had proposed, move to a later group, which would be reached much later this evening. It does not really matter which group it is in, because it does not really affect anything else. It is a simple, short point in relation to the co-operation between Governments within the union and, therefore, has to do with devolution.

Clause 33 sets out the functions of the advocate who is to be appointed in respect of a major incident. None of the functions in this clause is a reserved matter, so under the Government of Wales Act, the Senedd has the powers to appoint. Therefore, in any particular incident, the Senedd could make provision so that it could appoint its own advocates. I do not believe a different view is taken by the Government in London.

It may also be the case that Welsh Ministers can appoint a non-statutory inquiry following a major incident in Wales, but that is not the kind of point to go into at this hour. The only power that the Senedd could not make provision for is for an advocate appointed under the Act to automatically secure interested person status in a statutory inquiry—those powers are reserved as they are part of the justice powers. Of course, a public advocate appointed by the Welsh Ministers would be free to apply for interested person status, and would probably get it—so I do not think it makes any practical difference. As I understand it, this point has caused the Senedd’s consent to the legislative consent memorandum to be qualified and reserved until this matter is resolved.

There are four short points to make. First, it seems sensible that the Welsh Government are involved as part of the scheme if there is a major incident in Wales. That would avoid any possibility of duplication. Secondly, it is important that the Welsh Government have a say in the person appointed. The advocate must have knowledge of Wales as well as the necessary ability to do everything in Welsh as well as English, since in Wales, English and Welsh have equal status.

Thirdly, significantly, it would be a further step in underpinning by statute co-operation between the Governments as part of the normal exercise of shared functions within a union. Fourthly, the Minister provided the greatest possible help in achieving something similar in relation to mission statements in the Levelling-up and Regeneration Act, as provided for now in Section 2 of that Act. This seems to be yet another step that can be taken to put in place a strong statutory framework for co-operation to ensure that there is no duplication and there is good working co-operation.

[Lord Marks of Henley-on-Thames (LD)]

My Lords, I support Amendments 119A to 119C in the name of the noble Lord, Lord Wills.

I suggest that the usual basis for avoiding retrospective legislation does not apply in this case. Generally speaking, we take the view that it is wrong for new legislation to have retrospective effect. That is because, if an individual behaves in accordance with the law as it is at a given time, it is regarded as wrong for the law subsequently to be changed—I believe this is a correct analysis—in such a way as to change the legal framework in which that person legitimately operated at the time when they acted as they did. However, that principle cannot be relevant in the treatment of victims of major incidents and the provision of advocacy services to such victims. It is not as if there is anything in the Bill that could affect the behaviour of victims or indeed the behaviour of others in respect of major incidents, regardless of whether or not those others may have been culpable in some way for the occurrence of the incident.

There is a safeguard in the Bill against stale incidents becoming the subject of the amendments of the noble Lord, Lord Wills, simply because they are past and could be a long way past, but the meaning of a “major incident” includes the definition in Clause 28(2)(c), which says that a

“‘major incident’ means an incident that … is declared in writing by the Secretary of State to be a major incident for the purposes of this Part”.

For that reason, the Secretary of State could take the view that, if an incident were so stale that it ought not to be the subject of a major incident determination, he or she simply would not make one.

The other point I wish to make is that the noble Lord’s Amendment 119C shows the importance of the possibility of making the legislation retrospective. It talks about a single event or a series of linked events over time. In the case of a series of linked events, it may be the last event that gives rise to the need to call it a major incident but all previous events need to be taken into account as well. Therefore, the amendment shows how important the Wills amendments could be—if I can put it in that way.

I will speak briefly to Amendment 120 in the name of the noble Lord, Lord Ponsonby, which he has not addressed because no doubt he is going to wind up. I will not be winding up on behalf of these Benches as a result. His amendment concerns the possibility of declaring a major incident when only a small number of individuals are killed, injured or suffer major harm. To us, it is important that that amendment is permitted.

I take as an example—it is one that I simply thought of—the terrorist attack on Fishmongers’ Hall by Usman Khan in November 2019, when two people were killed and three more injured. In the words of the BBC a little while later, that incident

“touched the lives of so many”.

One knows that the incident must have touched the lives in a very serious way of those who intervened, those who witnessed the offences on London Bridge, and those who attended the Fishmongers’ Hall rehabilitation conference which led to such disastrous consequences. All were, in a sense, victims of the attack. All may have suffered, if not serious harm, at least some psychological harm. All may have needed some support. That need could be helped by the provision of advocacy services, advice or representation of some sort. The amendments in the name of the noble Lords, Lord Wills and Lord Ponsonby, taken together, would secure that that would be possible, even in the case of past events.

Death of a Member: Lord Judge

Lord Thomas of Cwmgiedd Excerpts

Thursday 9th November 2023 Lords Chamber

[Lord Lisvane (CB)]

My Lords, Igor Judge was a man of warmth, courtesy, humour and wisdom. He moved seamlessly from being a giant of the law to a doughty defender in this House of the constitution. I got to know him when I was Clerk of the House of Commons and he eagerly embraced the proposal that there should be regular meetings between senior members of the judiciary and senior officials of the Commons, which proved to be invaluable.

When my wife was a high sheriff, Igor came down to deliver a superb and memorable high sheriff’s lecture on the threats to our constitution. Away from that serious subject, it was a weekend when the four of us laughed a very great deal. I was privileged to have him, with Betty Boothroyd, as a supporter for my introduction to this House. Thereafter, he was a friend, guide and mentor, as he was to so many.

During what we hoped would be his convalescence, he and I exchanged books by post—on cricket, naturally. My profound sympathies go to Judith and his beloved family. Igor’s loss will be deeply mourned and long felt.

[Lord Thomas of Cwmgiedd (CB)]

My Lords, on behalf of the other former judges who cannot be here, I would like to add a short word, as I had the privilege of working closely with my noble and learned friend for 25 years. As has been said, he was unfailing in his kindness to everyone, whatever their position. He had a willingness to listen, but always with an acute understanding of the problem being presented to him and in doing all he could to help.

He led the judiciary in the transformation necessary after the reform of the office of Lord Chancellor. He established new working relations with Parliament and the Government on broad issues, but some involved detailed work, such as going over with the Lord Chancellor—jackets off, late into the night—the drafting of the legislation establishing the current Sentencing Council. He was a man of great learning, but it was lightly worn. It was always evident here, but he often used it to add humour to ceremonies, such as when he opened a court in Chester; he had his own volume of the yearbooks, with their Middle Age cases, which was entirely apposite to that city.

In short, he was a great Chief Justice—a servant of justice with a sense of duty that was wholly unsurpassed.

[Lord Lexden (Con)]

My Lords, I want to tell your Lordships how glad I am that Lord Judge, with others, secured the total repeal of the wicked laws that turned homosexuals into criminals. When I was a young barrister, I defended a number of them and well remember their pain and suffering. This wonderful man possessed such great humanity.

House of Lords: Remote Participation and Hybrid Sittings

Lord Thomas of Cwmgiedd Excerpts

Thursday 20th May 2021 Lords Chamber

[Lord Thomas of Cwmgiedd (CB)]

I first add my thanks to the staff and clerks, who have provided such an amazing technical solution to the problems of the pandemic. We ought to praise ourselves; we in this House have been among the leading legislatures across the world in showing that you can carry on in these difficult times. That is because the staff and clerks have seized upon the huge advances in technology driven by the pandemic. Real congratulations and praise are due to them. We ought to sing of our success in this respect.

Having said that, it is important that we test what we should do next by one criterion alone: what makes this House most effective in carrying out its constitutional duties? I think the answer is clear. In the vast bulk of the work the House does—holding Ministers to account by asking questions; debates; the scrutiny of legislation—there can be no doubt that being present in the Chamber must be the right solution. I say that for three reasons.

First, on occasions you need the pressure of the room. I use that phrase because you get the pressure of support if people are for you—you do not get that when you speak remotely—and you get the pressure of people laughing at you if you say something idiotic, fail to answer a question or try to emulate Sir Humphrey. That is critical. Secondly, there is spontaneity: the ability then and there to make a point that can be devastating either in support or to the contrary. Thirdly, there is what people outside this place call “work in the margins of the House”—in other words, all the rooms and the chats. In my view, those three reasons all make it absolutely essential that we return to a House that does the bulk of its legislative business and holding to account in the Chamber.

However, there are three other matters that we ought at least to consider. The first is the work of the committees. I could not add a single word to the description given by my noble and learned friend Lord Hope of Craighead. He is absolutely right, for two reasons. First, although we have always had the power to hear witnesses remotely, the technology was awful. It has changed, and we really ought to seize that and do much more. Secondly, as I have found when hearing litigation, you can get good answers out of a witness much more easily in a question-and-answer session on a video link than you can when unable to follow up on something a Minister might or might not say. It is effective, and that has been shown in the courts. You can also have good dialogue—that works as well—so I hope we will look at committees in a new light and not merely say, “We have always been able to do that.” It is not so; technology has made a difference.

Secondly, I very much hope that we can look at some of the things that have happened in the modern world—for example, the ability to put on screen the clause or amendment you are debating. This works in the real world and is something on which huge progress has been made.

Thirdly and finally, there is the very real issue of disability. We must do something to address that as well.

European Union (Withdrawal Agreement) Bill

Lord Thomas of Cwmgiedd Excerpts

Report: 2nd sitting (Hansard) & Report stage & Report: 2nd sitting (Hansard): House of Lords
Tuesday 21st January 2020 Lords Chamber

Moved by

[Lord Thomas of Cwmgiedd]

17: After Clause 35, insert the following new Clause—
“Involvement of the devolved administrations
After section 10 of the European Union (Withdrawal) Act 2018 insert—“10A Involvement of the devolved administrationsThe Joint Ministerial Committee (EU Negotiations) is to be a forum that meets regularly—(a) for discussing—(i) the United Kingdom’s future relationship with the European Union,(ii) the economic and security impacts of that envisaged future relationship on the constituent parts of the United Kingdom, and(iii) means of mitigating the impacts mentioned in subparagraph (ii); and(b) for seeking a consensus on those matters between Her Majesty’s Government and the other members of the Joint Ministerial Committee.”Member’s explanatory statement
This amendment would place the Joint Ministerial Committee (EU Negotiations) on a statutory footing, requiring the Committee to seek consensus on the way forward in terms of the negotiations with the EU.

[Lord Thomas of Cwmgiedd (CB)]

My Lords, in moving this amendment, we seek to insert a new clause after Clause 35. We are doing this in a much slimmed-down version of the clause that was before the House in Committee as Amendment 29. We do this in furtherance of the objective of strengthening the union, in this instance through the second means to which I referred yesterday, by ensuring proper consultation. We seek to set out the short principle that the Joint Ministerial Committee for EU Negotiations should be a statutory committee with clear purposes. Nowhere does the amendment seek to prescribe how the committee is to work. Neither does it require the making of Statements, or anything else at all that might be thought to impede the proper conduct of the negotiations with the European Union. It is there simply to ensure that the principle is accepted on the statute that this committee has a clear and defined purpose.

I would have hoped that, in the light of the many speeches made in Committee, it is clear that statutory recognition of this committee is required, given the way, as so many described, in which it has operated. If that was not the case in Committee, I would have thought that the debates yesterday in relation to Clause 21 would have demonstrated to Her Majesty’s Government how important it is to deal with the position of the devolved Governments and legislatures.

It is a simple fact that our constitution has changed during the period in which we have been in the European Union. We must therefore achieve a workable set of constitutional provisions to make that constitution work with the Governments and legislatures in Wales, Scotland and Northern Ireland, and not simply with this legislature and the Government in London—otherwise the union will be imperilled. This is a small step towards that end.

The conduct of international relations and negotiations is clearly a reserved matter and, as I said yesterday, there are plenty of powers not only in the existing legislation but in the clause carried yesterday to enable Ministers to ensure that in the devolved Administrations the international obligations incurred by Her Majesty’s Government are observed. But surely the United Kingdom must recognise that those are powers of last resort, and that the proper approach is to involve the devolved Governments fully in the negotiations by consulting them and trying to reach a consensus.

As this very modest amendment makes clear, it is not in any way intended to impose a veto. It is simply a way of trying to persuade and ensure that the Government will act in such a way that they strengthen the union. It takes into account, and is seen to take into account, the interests of Wales, Scotland and Northern Ireland as expressed through their constitutional institutions. This question of perception is extremely important if the union is to be strengthened.

There is a further consideration. The effect of the arrangements relating to the Northern Ireland protocol is to give the Northern Ireland Government attendance at some of the meetings of the joint committee: that is, the joint committee for the negotiations between Europe and the United Kingdom. This amendment, relating to the Joint Ministerial Committee—it is unfortunate that we have two committees with very similar names—is designed to ensure that the other two nations have, and are seen to have, the opportunity of expressing their interests so that the UK Government can go forward, with everyone knowing that those have been heard. It is a striking fact that countries such as Germany and Canada manage to conduct international relations while respecting the competences of their states and the other institutions that make up their countries. Indeed, the EU itself has conducted its negotiations successfully by taking into account the interests of the 27 other member states.

I fear, however, that the United Kingdom Government have not caught up with the impact of devolution on our constitution. They really ought to be doing all they can to help those who seek to strengthen the union, by ensuring that devolved Governments are consulted in accordance with not only the spirit of the constitution but its letter. It is surely not too much to ask of the United Kingdom Government, as today the Welsh Government are considering the legislative consent Motion, to think again about doing something to put on the statute book a clear commitment to the Joint Ministerial Committee. This is a critical issue and, if a difference could be made here, it would be far better to see the union go forward to this important stage in the development of our nation with the consent of all the devolved Governments, and not to risk the Welsh legislature taking a different view.

Might I suggest that, if possible, the Government think again now and look at this proposed new clause? It does nothing more than embody what should be clear. I very much hope that, when the Minister comes to deal with this issue, he will give a possible commitment to this clause, but also a clear assurance that this committee is going to work as it should work—given that, as was so ably explained in Committee, it is not working. This is not a lot to ask; it asks to strengthen the union, and it is important that the Government should try to help those who wish to strengthen the union, because there are many who do not. I beg to move.

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[Earl Howe]

My Lords, I say again that it is our absolute wish and intention to engage constructively with the devolved Administrations over the negotiations ahead of us.

Intergovernmental relations have always operated by the agreement of the UK Government and the devolved Administrations. We wish that pattern to continue. The existing terms of reference of the JMC (EN) were agreed jointly in October 2016. In my view, and indeed in others’, those terms of reference have served us well, but to set the terms of reference in legislation would inhibit this joint process. Apart from anything else, to legislate for this would anticipate the outcome of the review of intergovernmental relations, due to be discussed with the devolved Administrations next week at the JMC (EN). Putting the terms of reference of the JMC (EN) in legislation would pre-empt those conversations and restrict the ability of the various Administrations to develop future intergovernmental structures, such as the JMC (EN), to reflect the constitutional relationship between the UK Government and the devolved Administrations once the UK leaves the EU.

I hope noble Lords will appreciate how important it is for the JMC (EN) to have flexibility in its role to develop and adapt as the negotiations progress. Indeed, the terms of reference proposed in this amendment seem to be narrower than the existing agreed terms of reference, which refer to

“issues stemming from the negotiation process which may impact upon or have consequences for the UK Government, the Scottish Government, the Welsh Government or the Northern Ireland Executive.”

This amendment would restrict the focus to economic and security matters. In fact, I believe that, if one reads the current terms of reference in full, one will find that they are miles better than those suggested in the amendment.

The essential point remains that a fixed statutory basis would not support the flexibility required to ensure that the JMC (EN) can operate as effectively as possible, which is what we want it to do. I hope I have provided noble Lords with assurances of the Government’s commitment to work collaboratively with the devolved Administrations to discuss their requirements of the future relationship with the EU. In the light of those assurances, I respectfully ask the noble and learned Lord to withdraw his amendment.

[Lord Thomas of Cwmgiedd]

My Lords, I am grateful for what the Minister has said, but I fear that we have to address the issues of devolution and our changed constitution, and the sooner we do that the better. Looking to put matters on the statute book seems to me inevitable. However, in the light of what has been said, disappointed though I am that the noble Earl, Lord Howe, would not give the commitment that I asked for, I beg leave to withdraw the amendment.

Amendment 17 withdrawn.