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Queen’s Speech

My Lords, I return to the debate on the Address on home, legal and constitutional affairs. I begin by declaring two interests: first, as the former chairman of the inquiry into ethical conduct at BAE Systems; and, secondly, as a former chairman of the financial markets law committee at the Bank of England, whose task is to identify legal uncertainty. I should also mention a further capacity where I have an interest. Lord Chief Justices, for a considerable period now, have pleaded that the Government should cease their incessant legislation that affects the criminal justice system. When we have so little time available in this Session, it is a matter of regret that we have yet another Bill in that sphere. From a purely practical point of view, for those working to deliver justice in this country, whether as magistrates or senior judges, the torrent of legislation is causing problems of a severe nature. I turn to the new Supreme Court. A member of that court will, within a very short time, have to retire at the age of 70. He is one of the first judges to reach the final Court of Appeal in this country and be subject to the new age limit. I would have hoped that, as part of the constitutional considerations that led to the Bill dealing with that subject, it would have been possible to include a short statutory provision indicating that, at least for judges who reach that seniority, the retirement age should be 75. The distinguished former Lord Chancellor who was responsible for bringing in the change in the law to reduce the age to 70 is on record indicating that, so far as that category of member of the judiciary is concerned, the present situation is unsatisfactory. It cannot be right that a judge who at the age of 68 should be decided by a new appointments commission to be fit to join our final Court of Appeal should, only two years later, be what I and others have described as "statutory senile". I now consider two Bills, one of which, the Bribery Bill, has already been referred to. Despite what I said about the torrent of legislation, like the noble Lord, Lord Thomas of Gresford, I regard this Bill as long overdue and one that certainly should have been included in the Queen’s Speech. The Bribery Bill does, as is recognised, what has been needed for at least 20 years. Its absence has made this country the subject of serious criticism from many of the most respected independent international bodies working in this field. They have suggested that that absence indicates the unwillingness of this country to join in the global fight against corruption, which is holding back development in many parts of the world. It is hoped that the time available will ensure that this piece of legislation reaches the statute book so that its provisions—the noble Lord, Lord Bach, has referred to them, so I do not need to mention them again—will make it clear that we have the powers needed to enforce the law of bribery in respect of acts that occur not only in this country but abroad as well. Furthermore, it makes it clear that acquiescence can be the basis of a criminal offence. Finally, I turn to a Bill that at first sight may seem rather inappropriate, considering the title of this debate. I refer to the Financial Services Bill, because in my view its provisions relating to the possibility of forfeiting the salaries of bank employees raise constitutional issues. As the Bill is drafted, the delegated legislation provisions—they appear in a form with which we are unfamiliar—give powers to the Financial Services Authority to take action that could interfere retrospectively with the private contractual rights of employees without providing any backing for that in primary legislation. I submit that this is not an appropriate use of delegated legislation. In my experience the provisions are unprecedented and should surely have been the subject of very careful consideration. The relationship between an employer and an employee with regard to salary is a matter of great importance to the individual concerned. If interference in that relationship of the sort contained in the Bill is to be undertaken by an authority, it should be done only through very clear and specific provisions contained in primary legislation. We are told that the rules may, ""(a) prohibit persons … being remunerated in a specified way;""(b) provide that any provision of an agreement that contravenes such a prohibition is void; and""(c) provide for the recovery of any payment made, or other property transferred, in pursuance of a provision that is void"." However, we are not told how and when this is going to be done. The powers will enable the FSA to make rules that authorise it to take action that is clearly penal in nature. As arrangements that lead to the payment of bonuses normally cover a continuing situation, there is clearly a risk that they could be retrospective in effect. I suggest that this aspect of the Bill needs careful examination, particularly in view of the fact that there is no provision in the Bill to enable action taken to be subject to any form of appeal process and that any resort to the courts would have to be through judicial review.