European Union (Withdrawal) Bill

Lord Brown of Eaton-under-Heywood Excerpts

Committee: 4th sitting (Hansard - continued): House of Lords
Monday 5th March 2018 Lords Chamber

[Baroness Massey of Darwen (Lab)]

My Lords, Amendment 37 focuses on the protection, welfare and rights of children once the UK is no longer a member of the EU. I am disturbed by the notion of excluding the European Charter of Fundamental Rights in our domestic systems. Why is removing this being considered? What can be put in its place that is better? Perhaps the Minister can give the House an explanation.

[Lord Brown of Eaton-under-Heywood (CB)]

Are the microphones on?

[Baroness Massey of Darwen]

I apologise if there are no microphones, although it is not my fault. There has been little effort to consider how Brexit might affect children. I do not know who has been consulted on this. Perhaps the Minister can tell me. Have children been consulted? Organisations now often consult children about matters which affect their lives. Have the UK commissioners for children been consulted? They are advocates for, and speak for, children. Has the voluntary sector, which does such a splendid job in supplying information and support to children and those of us who work for them, been consulted? If not, why not? Have academics who support children’s rights been consulted? If all these people have been consulted, what are the results of such consultations? Has an impact assessment on how Brexit will affect children been considered? If not, why not?

I believe that there are 80 EU instruments which entitle children to protection and welfare. EU directives have not all been incorporated into UK law, yet these are comprehensive. There are numerous case studies on children as victims of crime—the sexual abuse and exploitation of children, criminal justice, and legal aid for victims. All these emphasise what it will mean to not have the European charter in place. Some have argued that our domestic laws on children are sufficient to protect them in all instances. This is not the case and I shall discuss it in a moment.

Last Monday, my noble and learned friend Lord Goldsmith spoke about the need to retain the European Charter of Fundamental Rights and stated that the charter will not be downloaded into our domestic law. An opinion by a Queen’s Counsel concludes that this would weaken human rights protection in the UK. The independent Bingham Centre for the Rule of Law has stated that the charter does much more than codify rights and principles. The Joint Committee on Human Rights, commenting on the Government’s right-by-right analysis of the withdrawal Bill, concluded with six devastating paragraphs in support of retaining the charter. The final paragraph states that some of the charter rights,

“are based wholly or in part on provisions of the ECHR”.

Other international treaties also come into play that have not been incorporated into domestic law, such as the UN Convention on the Rights of the Child, to which the UK is a signatory. However, the UNCRC is not incorporated fully into UK law and there are no legal or financial sanctions for non-compliance with its provisions. The noble and learned Baroness, Lady Butler-Sloss, was hoping to comment on this but has had to leave.

The response also states that,

“a failure to preserve relevant parts of the Charter in domestic law after Brexit will lead to a significant weakening of the current system of human rights protection in the UK”.

The Children’s Rights Alliance points out that the European Charter of Fundamental Rights sets out in a single document the fundamental rights protected in EU law and of particular importance to the protection of children’s rights.

We all know that the UK under successive Governments has made great strides to protect and enhance the welfare of children. Examples include the Children Acts of 1989 and 2004 and the Children and Social Work Act 2017, which is not yet in force. However, our domestic laws do not cover the full range of children’s entitlement regulated by the EU. We have no constitutional commitment to children’s rights at central government level, the level at which most EU legislation will be amended or repealed after Brexit.

I give other examples. The Children Act 1989, of course, enhanced the welfare of children but did not regulate the full range of children’s rights to protection covered by EU law—for example, as regards consumer protection and health and safety. The Children Act 2004 strengthened the 1989 Act but does not cover cross-border recognition and enforcement of family orders currently regulated by EU Brussels I and II. In particular, the right of a competent child to be heard in relation to child abduction or family disputes is significant. The Equality Act, welcome though it is, is not particularly strong as an instrument for children’s rights and does not cover many issues that would be of concern post Brexit—for example, equality in the workplace.

The Children and Social Work Act improves decision-making and support for looked-after children and for safeguarding work at the local level. It also makes relationships and sex education appropriate to age mandatory in schools. However, it seems to contradict amendments introduced by the Immigration Act 2016, specifically on care support for unaccompanied children when they reach the age of 18 and do not have leave to remain, are not asylum seekers or do not have a first immigration application for leave to enter or remain.

Other Acts such as the Borders, Citizenship and Immigration Act 2009, the Modern Slavery Act 2015 and the broadcasting Act 2003 contain measures to protect children, but are not fully comprehensive and obligations may be vulnerable to repeal when implemented through statutory instruments. The EU (Withdrawal) Bill could create problems for thousands of families affected by divorce or separation or involved in cross-border EU-UK family or child protection cases.

In 2017, UNICEF published its report on the progress made on children’s rights in the UK. It stated that while we have made much progress, we are weak in assessing the impact of legislation and policy on children. There have been significant advances in child protection and welfare in Wales, Scotland and Northern Ireland. However, these devolved measures will be impaired by Brexit as much of EU law affecting children may well be repealed through the use of delegated powers at a centralised level. This, of course, is worth a debate in itself. The Minister may say that Government cannot ignore the Human Rights Act 1998 and the Equality Act 2010. But these Acts, welcome though they are, have limited relevance to children. The European Charter of Fundamental Rights and the UNCRC go wider and deeper. Does the Minister accept this? If so, could he say—I ask this again—what will replace the European Charter of Fundamental Rights? The only way to ensure that children’s rights and welfare are protected is for it to be incorporated as part of retained EU law.

The Government should ensure that all existing protections for children’s rights and welfare in the EU legislative framework are reserved in domestic law. We cannot leave children from the UK—but also, in certain cases, from the EU—vulnerable to unclear or non-existent laws. I cannot understand the decision to drop the European Charter of Fundamental Rights when nothing else is in its place, and I do not know what will be. Why bother? Why reinvent? Any charter or convention, if attacked, must surely weaken the commitment to human rights, and we should resist such attacks with all our might.

--- Later in debate ---

[Lord Russell of Liverpool]

That committee was chaired by Sir William Cash and included a certain Member for the 18th century, Mr Rees-Mogg, so I think that we can conclude that it was clearly completely impartial. We have got the message.

The question that we are posing to the Government, in response to a wide range of representations which many of us have had, is whether they will honour their commitment to defend the rights of children as we come through this process.

I mentioned at Second Reading that scrutinising and discussing this Bill in a non-partisan and apolitical way might be helpful, so I have a specific question for the Minister: does he have a twin brother or a doppelganger? Can he be same person who on 30 January was responsible for writing two articles? One of them appeared on the ConservativeHome website and said:

“From the beginning we have been clear that we need—and indeed want—to adopt a collaborative approach and listen to the views of Parliamentarians from all sides of the House. The necessity and sheer scope of this legislation means that thorough debate and examination is more important than ever. We took this approach in the House of Commons and we will continue to do so in the Lords … The House of Lords has a well-deserved reputation for its detailed and thorough scrutiny. This Bill should be no exception—it will benefit from the forensic examination the Lords can bring and we look forward to that razor-sharp review”.


On the same day, in the Sun newspaper, he wrote:

“We are seeing a co-ordinated push by the defeated elites; the Europhiles will use their majority in the Lords—a majority that rests heavily on quangocrats and busybodies, some of them in receipt of fat Brussels pensions”—


which possibly includes Members of the European Parliament—and:

“For the Lords to overturn a result supported by more British voters than anything else in history would be outrageous”.


He described some of your Lordships as scheming Peers who want an anti-democratic coup. So I have two more questions for the Minister; could he share with us what he had for breakfast the day he wrote those two reports, because I shall try to avoid eating the same? Secondly, did he ever consider a career in the Foreign Office?

Let us please forget the unending politics and focus on the children, whose voice and interests have hardly been top of mind as a rather unseemly procession of opinionated individuals compete for media airtime and attention. I recall noble Lords to the fact that I am speaking to Amendments 37 and 70. Amendment 37 aims to bring into domestic law the parts of the European Charter of Fundamental Rights into UK law that are necessary to protect children’s rights. I appreciate that we are not going to bring the charter overall into our law; however, it has some very important provisions: the child’s best interests must be a primary consideration in all actions, children’s views may be expressed and shall be taken into consideration, and children have a right to maintain a personal relationship with both their parents unless that is contrary to their interests. It contains other articles, as other noble Lords have mentioned, including on education and the prohibition of slave labour—the Minister will be aware that our Prime Minister has a particular interest in anything to do with child slavery.

Amendment 70 goes about achieving the same end in a different way. The UNCRC is viewed by most of us as the gold standard. The Government have stated that the source of the rights of the child set out in Article 24 of the European Charter of Fundamental Rights stem from the UNCRC, but as others have mentioned, it is not incorporated into domestic law. We share the concerns outlined by the Joint Committee on Human Rights in its recent report, Legislative Scrutiny: The EU (Withdrawal) Bill: A Right by Right Analysis. There are several examples of where the UNCRC and the charter have fundamentally helped where there are gaps in our own law. Among these are cross-border family breakdown; the right to be forgotten and data protection; and where 17 year-olds, who are still children under the law, are arrested and treated as if they are adults, which is against the law.

I believe that we must protect the hard-won protections of children and ensure that they are not inadvertently lost. I also support Amendments 68, 69 and 97, all of which are simply trying to probe the Government, to understand how they see the way forward. What all of us are saying is that, however we go forward, we must ensure that in no way, shape or form are the rights and protections of children in any way impaired.

[Lord Brown of Eaton-under-Heywood]

My Lords, I too strongly support the rights of children. Indeed, I support the rights of the elderly, in whom, like the noble Lord, Lord Foulkes, I must, alas, declare an interest. However, with the best will in the world, I cannot support any of these amendments. The first point I make is that we debated reasonably fully last week the desirability or otherwise of incorporating this charter into UK domestic law in this Bill. The previous group is said to have been “already debated” and I find it difficult to see the logic of now debating a host of questions which raise the same idea, only more narrowly focused on one or two specific, individual charter provisions. This debate has ranged far and wide. We have even been back to cross-border co-operation, which was the subject of an earlier group, and I am certainly not going back down that trail.

I shall turn to the specific rights addressed here. The suggestion that the rights of children could be a primary consideration in any decision affecting them is hardly radical. As the noble and learned Lord, Lord Mackay, noted earlier, the Children Act 1989 puts it rather higher than a primary consideration: it is the “paramount consideration”. Of course there are areas beyond the scope of the Children Act as such which are in play with regard to children, but for the life of me I cannot think of a single case in recent years affecting children—or, indeed, the elderly—which would have failed under the convention and the common law but would have succeeded only by reference to the charter; nor can I envisage such a case in the future. Somebody may be able to devise a scenario which would meet that but I have not been able to do so.

In any event, the Article 24 rights are regarded as retained general principles of EU law and therefore will continue to apply. The right to be heard on the part of children is not a contentious one. I took the opportunity of the regrettably short break we were given this evening to look at a particular decision—indeed, I think it was one of the last Supreme Court cases I was involved in, and my noble and learned friend Lord Hope will remember it because he presided over it. It was a group of extradition cases under the title of HH v Deputy Prosecutor of the Italian Republic. In the course of it the question of the children’s views was raised; it was an extradition case but the same principle applies across the wide field of children’s interests. The noble and learned Baroness, Lady Hale of Richmond, who gave the lead judgment in the case, concluded:

“I share the view of the Official Solicitor that separate legal representation of the children will rarely be necessary, but that is because it is in a comparatively rare class of case where the proposed extradition is likely to be seriously damaging to their best interests. The important thing is that everyone, the parties and their representatives, but also the courts, is alive to the need to obtain the information necessary in order to have regard to the best interests of the children as a primary consideration, and to take steps accordingly”.


I do not know of cases where children’s interests are lost because they are not permitted to express their views.

[Baroness Massey of Darwen]

I have a number of case studies on these issues, which I will show the noble and learned Lord. Children’s rights are not always consistent, particularly in youth justice cases. I know that children in custody in the youth justice system are very often ignored, mistreated and not heard.

[Lord Brown of Eaton-under-Heywood]

I would be extremely obliged to the noble Baroness if she would put these cases clearly and crisply on a piece of paper and share them not only with me but with the Official Solicitor, who I think would be extremely interested in the proposition that children’s rights are being ignored in the youth justice system. But if they are ignored now, when the charter is available, what is to be lost?

[Baroness Lister of Burtersett]

The noble and learned Lord may remember that in my speech, which was about the UN convention rather than the charter, I cited a case, which I am sure he is familiar with—R(SG) v Secretary of State for Work and Pensions—where three of the judges, including the noble and learned Baroness, Lady Hale, found that the Department for Work and Pensions was in breach of the UNCRC, but because it was not incorporated they could not find against the Government and said that it was for Parliament. Here is a clear example of where three out of five judges found that children’s rights in the charter—the best interests of the child—were not being treated as a primary concern, yet they could not find for those families.

[Lord Brown of Eaton-under-Heywood]

I was going to come specifically to that case but, as I understand it, it was put forward not as a charter case but as a UNCRC case. I am not talking about that yet; I am talking about the charter because if it would not avail those children, then what is the point and why is it so important to incorporate those provisions of the charter? The UNCRC is a completely distinct point. I acknowledge that there may be a case and if that case is made good and establishes in full measure the proposition which the noble Baroness is advancing, it may be sensible, whether in this legislation or somewhere else—it would not logically take any part in this Bill—to incorporate the convention into domestic law. I acknowledge that it has not been. But unless you can show that something is to be lost by not continuing to honour the charter—if you fail to do that—with respect, it does not make any logical sense to bring in the UNCRC at this point of the Bill. I hope that the Committee can follow the logic of the way I put that.

I do not really want to spend a long time on this. The noble Lord, Lord Foulkes, and I are even more concerned about Article 25 and the rights of the elderly. That charter right is put in this way and it is worth incorporating what it says:

“The Union recognises and respects the rights of the elderly to lead a life of dignity and independence and to participate in social and cultural life”.


That is of course an admirable sentiment, a great principle and a suitable aspiration. But is it really said to be an enforceable right, which the courts would pay regard to if they had already rejected the claim under the common law and the convention? With the best will in the world, it does not make sense. I do not want to rain more heavily on everybody’s parade but I respectfully submit that it would not be a good idea to adorn this Bill, which has a limited aim, with these additional rights that logically do not stem from the ending of the charter.

European Union (Withdrawal) Bill

Lord Brown of Eaton-under-Heywood Excerpts

Committee: 3rd sitting (Hansard): House of Lords
Wednesday 28th February 2018 Lords Chamber

[Lord Brown of Eaton-under-Heywood (CB)]

I seek clarification from the noble and learned Lord. As I understand it, the words “so far as”, are intended to give Clause 2 limited range. Is this a useful touchstone, in so far as without the provisions we would have failed to implement our obligations under EU law? As I understand it, paragraphs (b), (c) and (d) address aspects of our domestic legislation that are designed to give effect, as they had to, to EU law, but only in so far as they are achieving that objective does Clause 2 have any application. Is that right?

[Lord Keen of Elie]

That is indeed my reading. The noble Baroness alluded to this earlier in her contribution. That is why I sought to emphasise the term “EU-derived” domestic legislation. It is the derivation of that aspect of a particular Act which is to be brought within the ambit of retained EU law for these purposes.

--- Later in debate ---

[Lord Adonis]

My Lords, I am grateful to my noble friend. For those of us who are not lawyers and are uninitiated in the complexities of this law, what does “implemented” mean? As I understand it, once the Council of Ministers adopts a directive, it is then the responsibility, under the European Communities Act 1972, of member states to implement it. Presumably the question is: what duties lie on Her Majesty’s Government and Parliament to implement directives which have been adopted by the Council but which would, in the normal course of events, be implemented over a period that might or might not span beyond 29 March next year? I assume that that becomes a very important issue in the scenario that my noble friend Lord Liddle has just referred to, where, in the “implementation period”, the United Kingdom is undertaking to abide by the evolution of European law in the making of new directives over that period. I am not sure whether I should call him the non-Advocate-General for Scotland, but could the noble and learned Lord, in whichever capacity he is speaking to us this afternoon, give us a view on this matter?

[Lord Brown of Eaton-under-Heywood]

My Lords, further to the point made by the noble Lord, Lord Liddle, as I have said before, this Bill deals with a crash-out situation in which there is no transitional period. If there is a transitional period, a good deal of this will have to change or will require some alteration—the point made by the noble Lord, Lord Liddle. As far as the noble Lord, Lord Adonis, is concerned, once the directive is adopted, the member states are then given a particular period—generally two years—in which to implement it, and sometimes they are late in doing it. This Bill surely ought to deal with the two situations, including the one where the implementation date has passed, in which case we would perhaps be in a rather different situation from that which assumes that the implementation date has not yet arrived when we leave, and so a different answer might be given as to how you deal with this position.

European Union (Withdrawal) Bill

Lord Brown of Eaton-under-Heywood Excerpts

Committee: 2nd sitting (Hansard - continued): House of Lords
Monday 26th February 2018 Lords Chamber

[Lord Goldsmith]

They were, because the charter provided for them. The Human Rights Act incorporated one set of provisions only, the European Convention on Human Rights, which goes back to just after the Second World War and which provides the classic political and civil rights. The other rights that we find in the charter, which is a much longer document and refers to socioeconomic rights, were not included in the Human Rights Act because they were not included in the European Convention on Human Rights.

The right-by-right analysis demonstrates which of these rights are not included. Given that the Government’s objective, as stated by the Prime Minister, is to ensure that the protections for people in this country are the same the day after exit as the day before, I respectfully suggest that it is not for me to identify why that is not right; it is for the Government to demonstrate why it is. When we have substantial independent bodies such as the Bingham Centre and independent opinions from QCs demonstrating that actually it is not the case that the protections remain the same, the Government need to explain. I shall come on to that further.

Obviously there are examples of rights in the charter that reflect precisely other rights that we have within our law. In particular, there are a number of rights in the charter that are explicitly based on the European Convention on Human Rights; they are the same. Indeed, during the negotiations I went to some pains to try to ensure that they were phrased in the same way so as to prevent lawyers from saying, “It’s written differently so it must mean something different”. However, those are not the only rights that are there. As I noted at Second Reading, the charter is based not just on the European Convention on Human Rights but on principles of EU law and on principles that are commonly accepted by the member states, and those are in a different position from the ECHR rights.

[Lord Brown of Eaton-under-Heywood (CB)]

Just take one of the rights that is precisely mirrored in the convention. Is it suggested that henceforth, the wise complainant who faces primary legislation here which is incompatible with that right should therefore sue under both the charter and the convention because, lo and behold, under the convention, despite the constitutional arrangement whereby the court’s powers are limited to a declaration of incompatibility, he can disapply the primary legislation? Is that to be the consequence: that in a case where it matches, the convention trumps the constitutional settlement we arrived at, to which the noble Baroness, Lady Deech, referred?

[Lord Goldsmith]

That will depend on the shape of the Bill when it is completed—in particular, what is said about the provisions which deal with primacy of EU law—but at the moment, as the noble and learned Lord will know well from the cases he sat on, people have been bringing cases by reference to both the charter and the convention. One reason for that is that the protection under the charter is more powerful. In future, if people want protection of human rights, they will want the more powerful protection, and if that remains available after the Bill is enacted, they will look to it.

--- Later in debate ---

There is a further problem—

[Lord Brown of Eaton-under-Heywood]

I promise that I will not intervene again—I loathe intervening. But does the noble and learned Lord agree, although he proposes the domestication of the charter, it will still be necessary in future to decide what is within the ambit of what used to be EU law, because that is where the operation of the charter is presently confined—or does he suggest that now it opens up and encompasses all UK law, so that it is a wider application than it was originally? Are we going to have to go again through the impossible exercise, notoriously uncertain in application, of having to decide what is specifically and directly within the ambit of EU law in future as well?

[Lord Goldsmith]

I am grateful to the noble and learned Lord and I know that this is a point that troubles him, but he should bear in mind that what we have in Clauses 2, 3 and 4 of the Bill are provisions to bring specific aspects of EU derived legislation and EU direct effect legislation into UK law. That is the Union law that will continue, and that is what is defined as retained EU law—and it is to that retained EU law that the charter will continue to have effect under the scheme that I advocate to your Lordships, not to anything else or more broadly UK law.

[Lord Brown of Eaton-under-Heywood]

So the right to dignity would exist in the context of EU law, but not otherwise? Is that really how it is intended to work? Can the noble and learned Lord give an illustration of a case that will succeed under the right to human dignity in future—I mean, there has not ever been one in the past that has succeeded under that—when otherwise it would fail?

[Lord Goldsmith]

The noble and learned Lord knows that I took Article 1 as an example only because it is the very first article in the charter. I have respectfully invited noble Lords to look at the Joint Committee on Human Rights report, where the committee goes through each of the articles and through what the Government have said in relation to them, and identifies where they find place already in existing, enforceable UK law, and where they do not. It is where they do not that we are concerned with, and where they do not that there will be the very gap that the Prime Minister has said should not exist.

There is the further problem that, even if the rights survive, they will survive without the enhanced status and protection that they currently have. They have an enhanced status at the moment because of the 1972 Act and because of EU membership, but from the date of this Act they will only survive in a delegated form and be amendable by delegated legislation. They are not protected from being amended or removed by delegated legislation.

Compare the position in relation to the ECHR and the Human Rights Act. The Bill says in three places—in Clauses 7(7)(e), 8(3)(d) and 9(3)(d)—that the Human Rights Act is protected from amendment or revocation. The classic civil and political rights, but no more, which are, rightly, protected by the HRA, are protected from being amended other than by primary legislation to which this House and the other place have specifically agreed after proper scrutiny. However, none of the rights underlying the charter will be protected in that way, unless they find themselves within the ECHR, which is only some of them. That is unacceptable for many people.

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[Lord Pannick]

My Lords, may I respond to some of the objections that have been raised to the points made by the noble and learned Lord, Lord Goldsmith, with whose speech I agree entirely?

Many of the objections—those raised by the noble Lord, Lord Lamont, are typical—are to the content of the charter or to its implications. The Committee should appreciate that that is not the Government’s position. The Government’s position is not that they seek to exclude the charter because its contents or implications are objectionable. Their position is very clear indeed. If noble Lords read the debates in the House of Commons or look at the report of the Constitution Committee, they will see that the Government’s position is simply that we do not need the charter in this Bill because its contents and implications are already contained in the retained EU law that is being read across through this Bill. So many of the objections that the Committee is listening to are simply beside the point: they are not the Government’s objection to the charter. The Government’s objection to the charter—it is unnecessary because its contents are already part of retained EU law—is, I am afraid, simply unsustainable. I will not take up time on this, because the hour is late, but if any noble Lords are doubtful about it, I simply suggest they read the helpful opinion by Jason Coppel QC, in which he clearly sets out the equality and human rights position. That is the first point.

Turning to the second point, I am always reluctant to disagree with my noble friend Lady Deech, because she taught me law at Oxford, but I have to disagree with her on this occasion. Her objection, as she explained it, and I hope I do not misrepresent her, is that she is concerned that the charter will enable the courts to overturn legislation enacted by Parliament—she is nodding. But I am sure she appreciates that that is inherent in this Bill. The whole point of the Bill is to read across as retained EU law the content of existing EU law that is applicable to this country and to give it—see Clause 5—supremacy. Supremacy means that it takes priority, as in the Factortame case, over anything enacted by Parliament which is inconsistent. So the suggestion that we must oppose the charter because it gives courts that power is simply inconsistent with what the Bill does.

Turning to the third objection, my noble and learned friend Lord Brown of Eaton-under-Heywood was concerned about whether the inclusion of the charter would, in some way, give a power that expands the role of the charter further than under EU law. My simple answer to that is no, of course it does not. The charter is being read across only because it is part of existing EU law, and it comes across as retained EU law. It will not have any greater force than it already has as part of EU law.

[Lord Brown of Eaton-under-Heywood]

In those circumstances, does my noble friend agree that the result of that is that we are henceforth, instead of treating retained EU law as part of domestic law—having discarded the separation and shed the notion that it is a distinct body of law—still going to have to wrestle with all the difficulties inherent in distinguishing operations or actions pursued in the ambit of EU law from those that are not? Will that problem continue into the distant future?

[Lord Pannick]

My answer is very simple: yes, of course. The whole point of the Bill is to read across the EU law which currently applies to this country and for it to continue to apply. That is the Government’s objective. It is their objective because they—very sensibly, in my view—wish to ensure legal certainty and clarity on exit day. That is exactly the legal position. It is not my idea; it is the Government’s intention in this Bill.

As to all the concerns about what the charter might or might not do, one should bear in mind that the charter has been applicable in the courts of this country for many years. No one has suggested that there is some case or principle which is so objectionable that we need now to make an exception for the charter, when the Government’s intention in the Bill is to read across all retained EU law to ensure a functioning statute book that preserves the legal position and ensures clarity, certainty and continuity. That is what this Bill is about.

Legal System: Prosecutorial Policy

Lord Brown of Eaton-under-Heywood Excerpts

Thursday 18th January 2018 Lords Chamber

[Lord Brown of Eaton-under-Heywood (CB)]

My Lords, this brief and highly topical debate, for which we are greatly indebted to the noble and learned Lord, Lord Morris of Aberavon, who over many years has been a tireless contributor in this field, is focused rather on the earlier stages of the criminal justice system than on imprisonment and release. But those matters have been dealt with by those altogether more expert than me, not least the noble and learned Lord, Lord Thomas of Cwmgiedd, and I will turn instead to related questions that I have raised with the House on earlier occasions, notably on prison overcrowding. In much of what he said the noble and learned Lord, Lord Morris, shot and wounded, if not killed, many of my foxes, but I, too, will raise the issue of IPP prisoners, of whom alas Mr Worboys is one.

We had a two and a half hour debate on prison overcrowding in September last. I know that the recent Lord Chancellor read it, because some of us went to discuss prison reform with him. Now we have, sworn in this very morning, yet another Lord Chancellor—the fifth in as many years, such is the value now placed on that once great office. I express the hope that he and his new Prisons Minister, Rory Stewart, will now in turn read that debate and pay heed to it.

As it happens, the first leader in today’s Times squarely addresses the prison crisis. It talks of a “crumbling prison system” and the “dire” situation with fewer staff, an ever-increasing number of assaults on prison officers and fellow prisoners, and prisoners locked up for very long periods. It talks of “squalid” conditions, et cetera. Today’s Motion refers to justice for alleged victims. Justice they must certainly have, but I cannot accept that victims require us to pursue the course that we have taken over recent years of ever-longer sentences, to a point where in fact we now have more indeterminate sentences here than in all the other 46 countries of the Council of Europe combined. Overall, of course, we have a far higher proportion of our population in prison than in any comparable civilised country—I put aside, as an unhappy comparison, the United States. As today’s Times advocates, sentencing guidelines should be revisited.

Let me turn briefly to IPPs and alas, most topically, the Worboys case and the lessons to be learned from it. First, as the noble and learned Lord, Lord Morris, said, the prosecuting authorities, the police and the CPS should always strive to charge the accused with a sufficient number of offences to represent the full extent of his criminality and to indicate fully the degree of his dangerousness. It seems highly questionable whether that occurred in this particular case. Although a 16-year determinate sentence is very considerable—a sentence represented here by the eight-year tariff Warboys got—it might be the case that he actually should have had a life sentence. That would have been appropriate and would have kept him in prison altogether longer.

The second lesson, which Nick Hardwick—who truly is a most excellent chairman of the Parole Board—has himself been advocating, is that there should now be a radical review of the rule that the Parole Board cannot give its reasons or disclose the details of individual cases. It is perhaps worth putting on record here the most relevant provisions of the 2016 Parole Board rules. Paragraph 22(3) says that,

“a hearing must be held in private”.

Paragraph 24(1) says:

“The decision of the oral panel must be recorded in writing with reasons, and that record must be provided to the parties not more than 14 days after the end of the hearing”.


However, paragraph 25, under the heading, “Disclosure of Information”, says:

“(1) Information about proceedings under these Rules and the names of persons concerned in the proceedings must not be made public”.


(2) A contravention of paragraph (1) is actionable as breach of statutory duty by any person who suffers loss or damage as a result”.


As it happens, there were three letters on this in Tuesday’s Times this week. The noble and learned Lord, Lord Falconer of Thoroton, suggested that those rules were “almost certainly unlawful” and that the courts could and should strike them down. Sir David Latham, referred to already as the Parole Board chairman between 2009 and 2012, in what I suggest was a rather more balanced letter, said that it was time to look again at these rules. In the third letter, a member of the Bar persuasively suggested that there were good reasons for a privacy rule: hearsay evidence is admissible and psychiatrists, probation officers and others might well give information in the expectation of confidentiality. He said that we should certainly beware of hasty rule changes—and I agree.

The third Warboys lesson is that the Ministry of Justice must improve its system for alerting victims—including those who complained but were not themselves the complainants in the charges actually brought—of the impending release of a prisoner.

I end by urging that the Warboys case and the particular problems that it has raised really ought not to be used as an excuse by the Ministry of Justice for losing interest in the genuine grievances of many of the remaining IPP prisoners: those whose tariff sentences were often no more than months or a year or two but who remain incarcerated eight to 10 years after they have served their due punishment. Their plight has rightly been described by ex-Lord Chancellors as a stain on our criminal justice system, and so it remains. They are the subject of preventive detention, which is a form of internment—and that is not our system.

Civil Procedure (Amendment) Rules 2017

Lord Brown of Eaton-under-Heywood Excerpts

Wednesday 13th September 2017 Lords Chamber

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

My Lords, this regret Motion raises three important matters of principle: first, the accountability of government and the rule of law; secondly, access to justice for the public and cost protection in environmental cases; and, thirdly, compliance by the United Kingdom with its international obligations.

Environmental cases are frequently brought by individual citizens and concerned organisations to challenge the executive action of government, national or local, which threatens the environment in which we all live and on which we all depend. Where government acts unlawfully, judicial review exists to enable such claimants to hold government to account. These cases are often complex and expensive. As a party to the Aarhus convention, entered into in 1998 under the auspices of the United Nations Economic Commission for Europe and ratified by the United Kingdom in 2005, enshrined in EU law, this country committed to guarantee in environmental cases to provide,

“adequate and effective remedies, including injunctive relief as appropriate, and be fair, equitable, timely and not prohibitively expensive”.

In April 2013, finally and after much procrastination and an adverse decision of the Court of Justice of the European Union in a case called Edwards, the Government introduced rules to implement the convention requirement that costs should not be prohibitively expensive. They did so by establishing an environmental costs protection regime, which, among other things, limited the costs payable by claimants to defendants in environmental judicial review cases. Your Lordships may remember that, in the Criminal Justice and Courts Act 2015, although this House successfully secured amendments limiting the damage, the Government legislated to impose a number of harsh costs provisions on judicial review, but in that Act costs protection arrangements for Aarhus convention cases escaped attack. However, this February Liz Truss, then Lord Chancellor, laid before Parliament the Civil Procedure (Amendment) Rules 2017, to which this regret Motion is directed. I first tabled this Motion in March, but the sudden general election was called before it could be heard.

My first objection to the new rules is to the requirement that a claimant seeking costs protection must disclose,

“a schedule of the claimaint’s financial resources”.

That schedule must also disclose “any financial support” from others helping to fund the case. This requirement, I suggest, is invidious, offends against privacy and is likely—indeed, calculated—to deter potential claimants and their supporters. Supporters will be put off because they risk being ordered to pay costs. The European Commission, in a letter written in March, wrote that,

“a requirement for litigants to provide information of their own personal means is also likely to result in a chilling effect with many individuals not wanting to make their personal finances publicly known”.

That must be right.

The costs limits are £5,000 for individual claimants or £10,000 for businesses or organisations. My second objection to the changes is that the new rules provide that multiple claimants will each be liable for a costs order in those sums. Before these changes, the general practice was that the overall cap would apply even if there were several claimants, but that was not invariable. The convention Compliance Committee considered this change and has said that it could see no basis for this amendment, which, it said,

“removes an important possibility for members of the public to defray the costs of proceedings by sharing the cost burden with other concerned members of the public”.

It said that it,

“substantially increases the likelihood of extensive satellite litigation to determine the costs cap per claimant, further increasing uncertainty”.

However, the third and most important and powerful objection is that the new rules have driven a coach and horses through the whole principle of costs protection in environmental cases. That is because they provide that, at any stage of the case, the court may vary or remove altogether the limits on the maximum costs liability of any party in an Aarhus convention claim. It is true that the rule pays lip-service to compliance with the convention by limiting the power to cases where removing protection would not make the costs of the proceedings prohibitively expensive. The rules define when proceedings are to be considered prohibitively expensive, which they may be if they,

“exceed the financial resources of the claimant; or … are objectively unreasonable”—

applying tests that roughly reflect those set out in the Edwards case, but which are extremely difficult to fathom. Any financial support of the claim by others must also be taken into account. I suggest that the overall effect is that any claimant may feel at risk unless his or her entire capital would be consumed by an adverse costs order. The reality is that costs protection which can be removed half way through a case is no costs protection at all. These rules undermine government accountability, diminish the rule of law and reduce access to justice in environmental cases for all but the very wealthy.

When the changes were first proposed, they were put out to consultation. The response was overwhelmingly negative. The Secondary Legislation Scrutiny Committee of your Lordships’ House produced a report that can only be described as scathing on the proposed changes. On the consultation, it said:

“The analysis in the EM”—


the Explanatory Memorandum—

“simply states that the consultation exercise received 289 responses. It does not explain, as it should, that for most of the questions the number supporting the Government’s proposal was less than ten: the vast majority of the responses received were against the proposed changes”.

The committee further noted the Government’s policy aim of,

“discouraging unmeritorious claims which cause unreasonable costs and delays to development projects”,

but the committee found no evidence to support the Government’s position. It also concluded that the Ministry of Justice had not addressed concerns and that,

“as a result of the increased uncertainty introduced by these changes, people with a genuine complaint will be discouraged from pursuing it in the courts”.

These rules inevitably deter legitimate challenges to government decisions. To take one example of their chilling effect, the Liverpool Green Party recently wished to challenge permission for a car park in an air quality management area granted by the council without its first undertaking an air quality assessment. The party was advised that it had a strong claim for judicial review, and it wrote a letter of claim. In its response, however, the council did not address the substance of the complaint but wrote that,

“it is noted that the court now has discretion … to vary the limits on maximum costs liability for Aarhus Claims and the Council will therefore require confirmation of the financial resources of your client in the event that it seeks a protective costs order”.

In the face of that letter, the party was unable to find an individual prepared to act as claimant, so the case was never brought.

I said at the outset that this Motion was about the rule of law. If the House passes this regret Motion, it will give the Lord Chancellor, who is widely held in high regard, an opportunity to show that he understands—better than his predecessor—the importance of government accountability, access to justice, the rule of law and of complying with our international obligations, in this case under the Aarhus convention. If he understands those things, he will withdraw these rules. I beg to move.

[Lord Brown of Eaton-under-Heywood (CB)]

My Lords, I do not usually find myself on the opposite side of the debate from the noble Lord, Lord Marks of Henley-on-Thames, but here I am. I make just two comparatively brief points—first, that the original 2013 rules to which he referred, which the 2017 rules that we are considering today have replaced, were drawn up before the CJEU gave the judgment in the Edwards case to which the noble Lord referred. That case was originally referred to the CJEU in 2011 by the Supreme Court, in which I was one of the five sitting, under the presidency of my noble and learned friend Lord Hope of Craighead.

The original 2013 regime provided simply for fixed-cost caps for claimants and defendants. The noble Lord mentioned that the caps are £5,000 and £10,000 respectively, depending on whether it is one or more claimant. It costs £35,000 for defendants in certain environmental law challenges—judicial reviews—with no account being taken under those rules of the particular claimant’s financial position, whether they are a millionaire or a pauper, or of the strength of the challenge that they would bring.

The new rules were introduced after what seems to me an impeccable consultation process. It is true that, perhaps not unusually in this sort of situation, the great majority of those responding were unenthusiastic, to put it no higher, about certain aspects of the proposed changes, certain of which were changed following consultation. But the new rules take full account of the several factors set out by the CJEU in the Edwards case as being relevant to the proper approach to the Aarhus convention in this respect. It is true that the new approach is more complex and allows, as the old regime did not, for a variation of those default costs limits—variations, I should emphasise, in either direction, possibly in favour of a claimant, as access to justice might be thought to require, during and not merely at the outset of the legal challenge.

The measure, therefore, could be said to illustrate the age-old problem in the law of balancing the respective merits of certainty and flexibility—there of course being in all cases pros and cons of each. I, for my part, do not accept that meritorious claimants are likely to be deterred and, certainly, I do not regard these new rules as manifestly contrary to the rule of law, or being unlawful and the rest.

--- Later in debate ---

[Lord Marks of Henley-on-Thames]

My Lords, I should perhaps make it clear that I deliberately refrained from referring to that case because it is sub judice, a judgment not having been given. So I have not referred to it and have not dealt with it. I take no issue with the noble and learned Lord so doing, because this is a case about delegated legislation but, nevertheless, I did not do so.

[Lord Brown of Eaton-under-Heywood]

In so far as the sub judice rule would apply to a debate of this character, I respectfully do not for a moment accept that I am breaching it. I am suggesting that it is highly relevant to the present Motion to Regret, a Motion which, as the noble Lord said, was initially tabled in March and, therefore, before those proceedings. In so far as, for example, it is now said that we are in flagrant breach of the rule of law and all the rest of it, those issues fall to be decided properly in the context of full argument in those proceedings and not to be well-nigh pre-empted by a Motion to Regret today. For my part, I would not support a Motion to Regret without the benefit of the High Court’s judgment on the legal issues arising.

[Baroness Young of Old Scone (Lab)]

My Lords, I wonder if I might address the points made by the noble and learned Lord, Lord Brown, not from the point of view of his confidence in flexibility and the wisdom of judges but from the point of view of the people who regularly have to consider whether they are willing to put forward their personal assets and privacy and, indeed, of those organisations representing the public which are placed in that position. I should declare an interest: I am president, vice-president or chairman of practically half the conservation and environmental organisations that are involved in these cases.

I very much welcome the Motion to Regret of the noble Lord, Lord Marks, and I really do regret the way that the Ministry of Justice has barrelled on to implement the removal of the cap on claimants’ costs in environmental cases, in spite of the criticism by virtually all consultees and the views of the Secondary Legislation Scrutiny Committee, which I thought issued its opinion in a rather more trenchant and stinging way than I have seen it operate in the past, which was interesting.

As a country we have been criticised for some considerable time by the United Nations and others for our lack of compliance with the Aarhus convention. I was interested to note that yesterday the noble and learned Lord, Lord Keen, in briefing Peers on the Brexit Bill, said that although we will lose recourse to the ECJ in relation to environmental issues, our responsibilities under the Aarhus convention will remain. Alas, our responsibilities under that convention are not being delivered on a regular basis and we continue to be criticised internationally. Therefore, I regret the MoJ’s move as it takes us even further away from compliance.

I have personal experience of being involved with charities that have initiated judicial review in these circumstances. These charities are representatives of communities. The trustees of these bodies take very seriously their responsibility to represent communities on these important issues. However, they are now incredibly wary of committing to challenge the decisions of public bodies through judicial review as they can have no assurance—other than the sorts of assurances which the noble and learned Lord, Lord Brown, attempted to give on the judiciary—that costs will not escalate and that they will have no influence over that as the cap can be changed at any stage in the process.

For individuals or unincorporated public bodies contemplating initiating a judicial review against a public body, the unpredictability and possible scale of the costs, the need to demonstrate the ability to pay and the risk to their homes and other assets are, indeed, chilling. Therefore, we have a situation in which individuals are being placed in a position where they have to think long and hard about taking such a case, as do responsible, publicly focused charities.

We do not know how many cases fail to be taken and how many people are deterred by these new arrangements as those decisions are made by individuals, families and communities and, in the case of charities, made behind closed doors. As an ex-chief executive of several charities, I suspect that charities would have to have pretty brave boards of trustees to undertake what is likely to be expensive judicial review under the current circumstances. We are very much seeing communities being priced out of environmental justice. I therefore urge the Minister to reconsider this decision to remove the cap and I urge noble Lords to support a reversal of this measure.

Prisoners: Imprisonment for Public Protection Sentences

Lord Brown of Eaton-under-Heywood Excerpts

Thursday 20th July 2017 Lords Chamber

Asked by

[Lord Brown of Eaton-under-Heywood]

To ask Her Majesty’s Government when they propose to exercise the power under section 128 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 to alter the test to be applied by the Parole Board to the release of those Imprisonment for Public Protection prisoners who have served years beyond their tariff terms.

[The Advocate-General for Scotland (Lord Keen of Elie) (Con)]

My Lords, the test used by the Parole Board in assessing the suitability for release of prisoners serving a sentence of imprisonment for public protection is working. These prisoners are being released in increasing numbers. In 2016 there were 576 first-time releases of IPP prisoners—the highest number since the sentence became available. This trend is expected to continue. We have no present intention to alter the test applied by the Parole Board.

[Lord Brown of Eaton-under-Heywood (CB)]

That is all very well, but there are more than 3,000 such prisoners left. After the shocking recent press reports about the sex offender treatment programmes tending to increase rather than reduce the likelihood of sexual reoffending, does the Minister really continue to think it fair and appropriate for IPP prisoners long past their tariff date for release having to prove a negative? They have to prove that they will not reoffend on release, which the chairman of the Parole Board describes as “incredibly difficult”.

[Lord Keen of Elie]

I am obliged to the noble and learned Lord for his observations with regard to this matter, but I remind the House that we are talking about prisoners who are at a high risk of committing further violent or sexual offences if released. The independent Parole Board, when not directing release, is concluding that the risk to the public is too great for these people to be safely managed in the community. Our duty of care is not only to the IPP prisoners but to the members of the public who may become the next victims of their violent behaviour. I acknowledge that recent reports on the sex offender treatment programmes have indicated that between 2000 and 2012 reconviction rates were higher for sexual offending in respect of those who had undertaken the programmes. By the time that those results were published, Her Majesty’s prison and probation services had already taken the decision to cease delivery of those core programmes and have accelerated the transition to what are called the Horizon and Kaizen programmes.

Queen’s Speech

Lord Brown of Eaton-under-Heywood Excerpts

Wednesday 28th June 2017 Lords Chamber

[Lord Brown of Eaton-under-Heywood (CB)]

My Lords, I shall confine myself to the three amendments being proposed to this Motion.

As a remainer, I confess to great sympathy with the proposal from the noble Lord, Lord Armstrong, but regretfully, although the tide of popular opinion may indeed be starting to turn in its favour, I fear that too few people will come to recognise, before it is too late to reverse the Article 50 process, just how damaging to our interests Brexit could be. Therefore, I cannot see the proposal as practical politics. Both the main parties support Brexit and the Liberals have hardly benefited from opposing it.

On the proposal from the noble Baroness, Lady Hayter —not least that the Government deliver “the exact same benefits” as we currently have in the single market and customs union—I make two brief comments. First, on her proposition that,

“no deal is the worst possible deal”,

surely not. Of course no deal would be awful, but unless one is simply unable to imagine a set of terms even worse—perhaps the so-called “punishment deal”—there must inevitably be circumstances in which negotiations will fail, and this is no more than the Union itself recognised in its published negotiation guidelines. They state that the Union,

“will be constructive and strive to find an agreement. This is in the best interest of both sides. The Union will work hard to achieve that outcome, but it will prepare itself to be able to handle the situation also if the negotiations were to fail”.

So too should we prepare ourselves.

The second point to make on the proposal from the noble Baroness, Lady Hayter, is that it strikes me, dare I say it, as nakedly opportunistic. It calls for the obviously unattainable. It is the last word in having one’s cake and eating it. It is based, of course, on a number of absurd pre-referendum assurances by some Brexiteers. No doubt it makes political sense—but in reality, it makes none.

I come to the regret Motion of the noble Lord, Lord Adonis, which, as I understand it, essentially calls on the Government to accept that our route out of the EU should be by way of reasserting EEA membership rights—in the future as a non-EU member, such as Norway, Iceland and Leichtenstein. We would thereby continue to enjoy full participation in the single market. That is the route recently canvassed by the noble Lord, Lord Owen, and, in last Thursday’s debate, by the noble Lord, Lord Howell.

Until recently, I confess to having shared the widely held view that the Norwegian option is the worst of all worlds, involving all the liabilities of EU membership without even a seat at the table. Let me now make seven necessarily brief, and perhaps oversimplified, points to the contrary.

First, EEA membership would avoid the cliff edge and give us time to negotiate more satisfactory, long-term trade relations with the rest of the Union.

Secondly, the rights of free movement would be less absolute than at present, there being in the EEA no concept of common citizenship, as in the EU. The right relates not to persons generally, but rather to workers, with certain limited derived rights for their families. It provides, therefore, some scope for restrictions on immigration.

Thirdly, we would recover control of our fishing grounds and agriculture, being no longer subject to the common fisheries and agriculture policies of the EU.

Fourthly, our contribution to the EU budget would be smaller and, to a significant degree, would depend on whether we choose to join various programmes that require funding.

Fifthly, EEA states retain full sovereignty. Unlike in the EU, Brussels legislation has no direct effect; rather, all legislative change relevant to the EEA—on which the EEA states will already have had the chance to comment—has to be approved, first by the EEA states collectively and then by each such state’s national parliament.

Sixthly, the EEA does not forbid trade negotiations with other countries. In other words, we would be able to pursue free trade agreements on a global basis. Dr Fox and his team would be in business.

Seventhly, and finally, we would no longer be subject to the jurisdiction of the ECJ. I happen to think, in common with the noble Lord, Lord Wallace, and others, that the ECJ has been absurdly and unfairly demonised by Brexiteers, and that it is a huge mistake to make ending subjection to that court, particularly in the context of future supranational relations—the European arrest warrant and so forth, as the noble Lord explained—a red-line issue. In any event, in the EEA that objection is substantially met. In the EEA, the broad equivalent of the ECJ is the EFTA court, and while certainly that court takes full account of the ECJ’s jurisprudence, there are two important differences. First, the national supreme courts of EFTA states are not obliged to refer questions of EU law to that court; and secondly, unlike preliminary rulings of the ECJ in EU countries, EFTA court decisions are, strictly speaking, advisory only and not legally binding in the national court.

Taking those points cumulatively, I suggest that this solution gives effect to the referendum result, meets the Brexiteers’ core objections to continuing membership and maximises the prospect of a successful long-term future.