Debate (3rd Day)
Moved on Wednesday 27 May by Baroness Bottomley of Nettlestone
That an humble Address be presented to Her Majesty as follows:
“Most Gracious Sovereign—We, Your Majesty’s most dutiful and loyal subjects, the Lords Spiritual and Temporal in Parliament assembled, beg leave to thank Your Majesty for the most gracious Speech which Your Majesty has addressed to both Houses of Parliament”.
My Lords, it is a great honour to open the debate today. I have the greatest respect for the wealth of knowledge and experience that exists within your Lordships’ House— wealth that is amply demonstrated by the list of speakers for this debate. It would be fair to say that entering this House and becoming a Minister at the same time is doubly daunting, so I am grateful for the warm welcome and advice I have received from noble Lords on all sides of the House and from the officers and staff.
To serve in the Scotland Office is a particular honour for me. My family has for many years been associated with Clydeside; indeed, my great-grandfather was Lord Provost of Glasgow during the First World War. Early in my career I worked for George Younger, a distinguished Scottish Secretary and later Member of this House. Three years ago I returned to government service after a gap of 20 years spent running my own business, and it was the tug of Scotland that brought me back at a momentous time in our country’s history. I recognise that there is unfinished business, and I feel privileged to have been given the opportunity to serve in the Scotland Office.
I follow in the footsteps of the noble and learned Lord, Lord Wallace of Tankerness, as the Scotland Office spokesman in this House. Now that he sits on the other side of the House, I hope it will not be career limiting for either him or me to say that we worked well together in government. If I can discharge my duties in this House with half as much skill and dedication as the noble and learned Lord, I will feel I have served this House and this Government well.
I also welcome the noble Lord, Lord Lisvane, who was for many years a distinguished servant of the other place, and the right reverend Prelate the Bishop of Leeds. They, like me, will be making their maiden speeches in today’s debate and I look forward to listening to their contributions. I also thank my noble friend Lord Faulks, who will be closing the debate.
Today’s debate brings together three issues—constitutional, legal and devolved affairs—and it is right that they are brought together. They reflect key aspects at the heart of the legislative programme set out in the gracious Speech—a programme founded on the idea of one nation, bringing fairness to all parts of our United Kingdom, where the people and institutions across this nation are treated with respect.
Let me say that although the Scottish National Party is not represented in this House, we will continue to be very mindful of its views. Last year’s Scottish referendum has caused much reflection on what previously had been taken for granted—the purpose of the United Kingdom in our modern world and what binds us together. The case for the United Kingdom is one that we must make in this House but also directly to the people of Scotland: the opportunities of our single, integrated domestic market; the solidarity that comes from pooling and sharing risks and resources in our social union; the protection of our common defence and security arrangements; the strength of having our own currency backed by the stability of the Bank of England; and all this bound together by values, experiences and history, shared by millions of people across our country.
Of course, the United Kingdom’s constitutional arrangements have evolved over time and been adapted to reflect the unique circumstances of the world’s most successful and enduring multination state, and they continue to evolve today. The Government are committed to establishing a stable resting place for the constitutional arrangements across our country—arrangements that provide the different nations of the United Kingdom with the space to pursue different domestic policies should they choose, while protecting and preserving the benefits of being part of the bigger UK family of nations.
At the heart of the legislative programme set out in the gracious Speech are measures to change how power is distributed across the UK and how decisions are taken—changes that will strengthen fiscal responsibility and accountability. In bringing forward these measures, the Government recognise that there is no one-size-fits-all solution. The devolution settlements reflect the distinct histories and circumstances of the different parts of the United Kingdom, and there is already a strong track record to build on.
In the last Parliament, the Government committed to devolving further powers to Scotland and Wales. These were delivered. We also worked with the Scottish Government to give people in Scotland a referendum. They voted clearly and decisively to stay within the UK. In this Parliament, we will move quickly to implement the further devolution that all parties agreed for Wales and Scotland and to deliver, too, the Stormont House agreement in Northern Ireland. Importantly, we will also address the issue of fairness for England. Delivering on these commitments is a fundamental matter of trust.
For Scotland, we have already introduced a Bill to deliver in full the Smith commission agreement, reached by all five of Scotland’s main political parties. The Scottish Parliament will become one of the most powerful devolved Parliaments in the world. The Bill will increase the financial accountability of the Scottish Parliament through the devolution of income tax rates and bands, air passenger duty and assignment of VAT revenues. It will increase responsibility for welfare in areas that complement the Scottish Parliament’s existing powers. It will increase the scope for the Scottish Government to be more involved in the scrutiny of a range of public bodies and give significant new responsibility for roads, speed limits, onshore oil and gas extraction, and consumer advocacy and advice.
Scotland chose a united future in the United Kingdom. Now, the time is fast approaching when people in Scotland need clarity about how these new powers will be used and at what level the taxes will be set. That must be the next great debate in Scotland.
For Wales, we are committed to implementing the St David’s Day agreement in full. A Wales Bill will be introduced later in this Session. It will provide a new, reserved-powers model for Welsh devolution to help clarify the Assembly’s powers. It will devolve additional powers in areas such as transport, energy, the environment and local government, and enable the Assembly to decide how it organises itself and its elections and regulates its own proceedings. The Bill provides a robust package that will make the Welsh devolution settlement clear, sustainable and stable for the future.
The Stormont House agreement offers the prospect of a more prosperous, stable and secure future for Northern Ireland. It covers a wide range of issues: welfare reform, fiscal sustainability, measures to deal with the legacy of the Troubles and improvements to the working of devolution. It is disappointing that the Northern Ireland parties were unable to support the Welfare Reform Bill in the Assembly last week. That is a setback to delivery of the Stormont House agreement. The Secretary of State for Northern Ireland will be meeting the Northern Ireland Executive parties tomorrow to establish how best to make progress.
However, the UK Government remain committed to delivering the elements of the Stormont House agreement for which they are responsible. We will therefore introduce a Bill to deliver a number of key commitments in the agreement to deal with the legacy of the Troubles. It will establish an independent body to take forward outstanding investigations into unsolved Troubles-related deaths. It will provide an independent commission to enable victims and survivors to seek and privately receive information about the deaths of their next of kin, and establish an oral history archive for people from throughout the UK and Ireland to share experiences and narratives related to the Troubles. These measures represent significant progress towards helping Northern Ireland deal with its past in a fair, balanced and proportionate way.
Of course, underpinning each of the settlements is funding. By moving to greater self-funding, and thus greater accountability, we are delivering mature and enduring settlements that provide incentives for economic growth. For Scotland, the devolution of further responsibility for taxation and public spending will be accompanied by an updated fiscal framework, as recommended by the Smith commission. The fiscal framework will encompass a number of elements and work alongside the Barnett formula to deliver a fair settlement for Scotland and the rest of the UK.
The Barnett formula will, of course, become less important as the Scottish Government become responsible for raising more of their own funding following the devolution of further tax powers. Negotiations with the Scottish Government on the fiscal framework are expected to proceed in parallel with the passage of the Bill, so there will be ample opportunity for your Lordships to consider the entirety of the new settlement.
For Wales, the UK Government will introduce a floor in the level of relative funding they provide to the Welsh Government. The details will be agreed at the next spending review in the expectation that the Welsh Government will call a referendum on income-tax powers in this Parliament.
December’s Stormont House agreement provided a very significant package of additional funding and budgetary flexibilities aimed at helping the Northern Ireland Executive put their finances on a sustainable footing for the future. It remains vital that the Northern Ireland parties get on with the commitments they made to implement the agreement, not least because moving forward on corporation-tax devolution clearly requires the Executive’s finances to be sustainable.Taken together, these measures will ensure a sustainable fiscal environment for the devolved Administrations and for the UK as a whole.
As we take forward our planned changes to the devolved settlements for Scotland, Wales and Northern Ireland, it would not be right to neglect the needs of England. The Government have announced plans to decentralise power in England to help bring about a balanced economic recovery. However, greater decentralisation within England does not provide an answer to how Parliament operates to better reflect the principle of English consent. Therefore, the Government will bring forward proposals for the authorities in the other place to consider. These will ensure that distinct decisions affecting England can be taken only with the consent of the majority of MPs from English constituencies. These proposals are necessary to strengthen England’s voice in the law-making process, just as devolution has strengthened the voices of Scotland, Wales and Northern Ireland within our United Kingdom.
Successive Governments have grappled with the West Lothian question. This will be the one who answers it. We will answer it in a way that maintains the integrity of the United Kingdom Parliament. MPs from all parts of the UK will continue to deliberate and vote together on matters that affect the whole of the UK. For matters where responsibility has been devolved, all MPs will continue to vote during important parliamentary stages. These proposals will help safeguard the union by embedding fairness into Parliament’s law-making process.
As we deliver on our commitments to each part of the United Kingdom, the Government recognise the importance of ensuring that the devolved aspects of our constitution work as a whole. People across the UK expect all four Administrations to work together. A commitment to good working relations and respect for the memorandum of understanding, which sets out how we will work together, needs to come from all sides. We are committed to exploring jointly a range of options for enhancing relations with the devolved Administrations. The report of the Constitution Committee of this House on this subject, published in the last Session, is a very welcome contribution. I know that there will be a range of views on this and we will listen to them. We will work together to make collective changes to build partnerships that are strong and effective.
Finally, I turn to the important issue of human rights. In his closing speech my noble friend Lord Faulks will cover the equally important issue of victims’ rights. The Government are committed to human rights. They were elected with a mandate to replace the Human Rights Act with a Bill of Rights. Protection of human rights is vital in a democratic and modern society, and this Government will be as committed to upholding human rights as any. But we must remember that the protection of human rights does not begin and end with the Human Rights Act. Rights were protected prior to that Act and they will continue to be protected under a Bill of Rights. The purpose of the Bill of Rights is not to reduce human rights but to reform our system and restore credibility to their legal framework. We know that this will be significant legislation and we will take the time to get it right. We will consult widely and consider the full implications, but for those reforms there is a compelling argument and a strong mandate.
The reforms set out in the gracious Speech demonstrate our intention to govern with respect and to honour our promises to improve governance for all parts of our United Kingdom. We will bring forward legislation to secure a strong, fair and enduring constitutional settlement. The cause of bringing together a united kingdom is a noble one in which your Lordships’ House will, I know, play a full part. I look forward to listening to the debate today on all these important issues.
My Lords, I congratulate the noble Lord, Lord Dunlop, on his maiden speech and on his new role as Parliamentary Under-Secretary of State for Scotland. He studied politics and economics at Edinburgh University under the former Labour MP for Berwick and East Lothian, Professor J P Mackintosh, who appears to have had only a mixed influence on him. He worked for Mrs Thatcher’s inner circle as one of the seven members of her policy unit where, for two and a half years, he played a key role in the introduction of the poll tax in 1989. He was appointed the Prime Minister’s adviser on Scotland in March 2012. He is a distinguished and capable individual and will be a real contributor to your Lordships’ House. He is not to be confused with the Andy Dunlop of the Scottish band Travis, whose best-known album is “The Man Who”—even though he, the noble Lord, Lord Dunlop, is the man who brought the poll tax to Scotland
I congratulate also Michael Gove on his appointment as Lord Chancellor and Secretary of State for Justice, and I welcome the noble Lord, Lord Faulks, who has been restored to his position as Minister for Justice. The noble Lord, Lord Faulks, will have his work cut out. He is caught between the Home Secretary and the Lord Chancellor, both of whom, according to the Daily Telegraph this morning, want to leave the European Convention on Human Rights. The Home Secretary, noble Lords will recall, thought that Article 8 of the convention applied when you had a relationship with your cat; and the Lord Chancellor wrote, before he became an MP, that abolishing the death penalty has,
“led to a corruption of our criminal justice system, the erosion of all our freedoms and has made the punishment of the innocent more likely”.
So the senior members of this Government may need some guidance from the noble Lord, Lord Faulks, as to precisely what the law and the constitution mean.
The gracious Speech is billed as a one-nation speech. A serious one-nation policy programme would be a set of proposals to bind the nation together: Scotland with the rest of the United Kingdom, unions and employers, rich and poor, young and old, north and south, London and the rest. These proposals would encourage individuals and businesses to realise their potential to the full while providing proper support and protection for those who need it.
In the areas we debate today—the constitution, the law and devolution—the gracious Speech contains proposals which are divisive and motivated by short-term political advantage rather than long-term national benefit. There are proposals to introduce new standing orders for the Commons which will create two tiers of MPs by giving English MPs a veto on laws which apply to Scotland only—a dangerous further wedge between Scotland and England; proposals for the repeal of the Human Rights Act which will reduce the ability of those who find themselves the victims of state abuse adequately to defend themselves—a retreat to creating further division between government and governed; proposals which may involve the Human Rights Act continuing to apply in Scotland and Northern Ireland but not in England and Wales—a further wedge between England and Wales on the one hand and the rest of the United Kingdom; proposals to make it more difficult for the unions to donate to political parties and ballot their members while doing nothing to increase the transparency of donations by private donors to political parties, particularly the Tory party—a wedge between the rich and the rest.
There are no proposals to deal with the damage done in the last five years in the area of justice—for example, the decision to take the overwhelming majority of social welfare law out of the scope of legal aid. Now it is no longer possible to obtain legal aid in the areas of welfare benefit law; employment law; housing law, except possession cases; debt law; and much of immigration law—relevant to all but particularly to the poor, the marginalised, the vulnerable and the disabled. There are also no proposals to deal with the imbalance in registration of voters. The young, the renters, those who do not own their own homes, the poor and those from minority ethnic groups have the highest levels of non-registration—and, among those from these groups who are registered, of non-voting. We must be vigilant to ensure that our elections truly are one-nation elections.
In the last election, for example, 43% of those aged between 18 and 24 who were registered to vote voted, whereas 78% of those aged over 65 did so. I am glad that the turnout was so high among the over-65s. I worry that the Government will not be a Government for the young. Of the 43% who voted in this youngest age group, only around a quarter supported the Conservatives—so the Conservatives have the support of maybe 12% of those aged between 18 and 25.
This summer, the Government must decide whether to bring forward to December 2015 the end date for transitional arrangements for individual electoral registration. If they do, yet more people will be removed from the register, mostly from the vulnerable categories. The gracious Speech contains no proposals of any sort on this.
I will move on to the things that the gracious Speech does deal with. The first is human rights, which is the Lord Chancellor’s responsibility. He was Secretary of State for Education. He fell out with his civil servants. The Permanent Secretary left shortly after his appointment. His special adviser was vitriolic about practically every other part of the Government, including the Prime Minister and the Deputy Prime Minister. He characterised those who opposed his policies as “the Blob”. A member of the Department for Education advisory group said of his department that,
“they don’t think things through very carefully, they don’t listen to anyone and then just go ahead and rush into major changes”.
He was removed as Education Secretary as Lynton Crosby regarded him as too toxic. He lasted around a year as Chief Whip.
The office of Lord Chancellor is not a job creation scheme for a valued colleague of the Prime Minister who has found ministerial office difficult. Those who depend on our justice system—and there are very many—need to have faith in the person in charge. It is important here, and for our standing in the world, that the person in charge understands the United Kingdom’s values, and in particular the central importance of the rule of law and what it means. The system exists not for the lawyers, the politicians or the judges, but for those it seeks to protect.
In the other place on Thursday of last week, the Lord Chancellor was asked three times whether the Government would leave the European Convention on Human Rights. He refused to answer. I read in the Daily Telegraph this morning that the Lord Chancellor and the Home Secretary want to pull out of the convention, and the Prime Minister wants to stay in—hence the Lord Chancellor’s evasions in the Commons last Thursday. I back the Prime Minister against the Lord Chancellor.
In the same speech, the Lord Chancellor dismissed those who defended the current human rights laws as being like Fat Boy in The Pickwick Papers, who liked to make your flesh creep. Despite my best efforts, I will for ever be Fat Boy—on this occasion, fat and proud.
I wonder if the sisters of Anne-Marie Ellement would agree with the Lord Chancellor. She was a member of the Military Police. She alleged that she had been raped by two members of the Military Police, and thereafter she was bullied for making the allegation. She killed herself. At the first inquest there was an inadequate investigation of what had happened. Only by relying on the Human Rights Act were Anne-Marie’s sisters able to get the court to order a second inquest, where the truth emerged. That protection would go if the Conservatives get their way as set out in their October 2014 document; the new human rights law would not cover the military.
The US Government wanted to extradite Gary McKinnon to stand trial for allegedly hacking into US military computer systems from his bedroom in the United Kingdom. The evidence was clear that if he was deported to the United States, his health was so bad that he was at very severe risk, including the real risk of suicide. Only the Human Rights Act allowed the Home Secretary to stop his deportation. That is another of the particular aspects of the Human Rights Act that the Tory document of 2014 wishes to remove.
The Government say that they do support human rights, but that they should be British human rights. “British human rights” appears to mean, “the British Government’s view of human rights”. That means the Executive, since to a large extent it is the Executive who control the legislature. According to their October 2014 document, the Conservatives will reintroduce the rights in the same wording as the convention rights, but make it clear that there are aspects of those rights that they will specifically exclude. Examples include the prohibition on deportations if the deportee would be tortured or killed—those deportations could go ahead—or the application of human rights law to the military. An Executive able to pick and choose the extent to which human rights apply is an illusory protection. If we are serious as a country about providing our citizens with protection, we should not consider this course. The importance of there being an authority—not one that interferes with UK sovereignty but external to the UK Government—which defines the limits of human rights is that it prevents human rights becoming what a Government say they are.
One aspect of the Conservative attack on the human rights settlement as it currently exists is that the Conservatives say they want to prevent the European Court of Human Rights overruling our own courts. In his speech in another place on Thursday, the Lord Chancellor said:
“We want to preserve and enhance the traditions of human rights. There will be no diminution in that area; indeed there will be an enhancement of convention rights as a result of the changes we propose to make. But the difference”,
“We want to ensure that they are consistent with common law traditions and that our Supreme Court is genuinely supreme”.—[Official Report, Commons, 28/5/15; cols. 291-92.]
It is difficult to know what he means by “enhancement” when all the proposals so far produced by the Conservatives involve a reduction in rights.
Further, his reference to the Supreme Court being “genuinely supreme” betrays a misunderstanding of the current position. The UK courts are the final arbiters of what UK law provides, including human rights law. There is no appeal from what the UK courts say UK law is. The UK Supreme Court has been clear that it will not treat itself as bound by decisions of the European Court of Human Rights and has departed from European court decisions when it has disagreed with them. So both in form and in reality the UK Supreme Court is supreme, and if the European Court of Human Rights finds the United Kingdom to be in breach of the convention, the European court cannot overrule either the UK courts or Parliament. All the European court can do is to determine whether there is a breach of the convention—and if there is, it is for the UK Parliament to decide how to remedy the breach. I am glad that the Government have paused and I urge them to abandon these proposals. If they do not, my party, the Commons, this House, and maybe even Fat Boy Cameron will resist them.
The Government’s approach to the Human Rights Act is just one example of how they are willing to risk not just our standing in the world but the relationship between the nations of this country for narrow partisan interests. We need further devolution to Scotland, Wales and the English regions that is fair and lasting, and is done in a way that builds the broadest possible consensus. We are committed to ensuring that the vow is delivered in full, which means keeping the Barnett formula, alongside more powers to make the Scottish Parliament one of the most powerful devolved parliaments in the world. My colleagues in the Commons have already vowed to amend the Scotland Bill to give the Scottish Parliament the final say on some additional aspects of welfare and benefits.
We must also put Welsh devolution on a stronger statutory basis, and we agree with taking forward proposals from the Silk commission. However, we think that the Government should make sure that Wales is not unfairly disadvantaged by the Barnett formula and ensure a fair funding settlement for Wales by introducing a funding floor.
We welcomed many aspects of the Stormont House agreement, but the current stalemate on welfare reform, and the financial and political implications, mean that that agreement is now in a precarious position. I hope that the UK Government and the Northern Ireland Executive are working together to find a way forward to avoid a political and financial crisis.
Greater devolution within England is also necessary. We strongly support the devolution of much greater powers and control of budgets to the city regions and counties, where it is clear that those cities and counties have the capacity to take on the devolved power and budgets. But it is for those cities and counties to determine for themselves the appropriate leadership arrangements. Whether a mayor is best should be for them to decide, not central government.
This is not a constitutional programme with the best interests of the country at heart. It is a programme aimed at short-term political advantage. It promotes division and two nations. It threatens the union, the reach of our voting system, the rights of our citizens and the strength of our nation as a defender of human rights in the world.
My Lords, I join the noble and learned Lord, Lord Falconer of Thoroton, in congratulating the noble Lord, Lord Dunlop, on his maiden speech and in welcoming him, on behalf of these Benches, to his new position.
I start with two general observations on justice issues. Others on these Benches will speak on devolution and constitutional issues. First, I hope that this Government, now untrammelled by the constraints of coalition with my party, will nevertheless continue to test all their proposals against the fundamental values of human rights and liberty that have, in the past, been championed by both our parties. Secondly, I hope that this Government will maintain a commitment to the rule of law in its widest sense—embracing the concepts that government may not act unlawfully without challenge, that all citizens must have genuine access to justice and that our Government must faithfully abide by all their international obligations. These concepts are easy to state and all too easy for Governments to affirm, but they can nevertheless be challenging for Governments to achieve in practice.
It is against those benchmarks that I approach this Queen’s Speech. In the justice area there are several proposals which are to be welcomed. I will mention just four. First, the proposed policing and criminal justice Bill promises that 17 year-olds will be treated as children under all the provisions of the Police and Criminal Evidence Act, bringing English law into line with the UN Convention on the Rights of the Child and the European Convention on Human Rights, and in particular ensuring that 17 year-olds have a legal right to be interviewed in the presence of an appropriate adult.
Secondly, the Government’s proposed amendments to the Mental Health Act should end the scandal of patients, often children, who are suffering from serious mental illness being locked up in police custody for want of appropriate places of safety. But if the legislation is to work, the Government must ensure that there are always safe mental health facilities available for emergency admissions, and that these are convenient for patients’ homes and families. The Government claim to be serious about giving parity of esteem to mental and physical health. This will be an early test of their resolve.
Thirdly, the proposed end to indefinite pre-charge bail is long overdue and the Government’s proposals seem proportionate and humane. The sword of Damocles approach to criminal process is wrong. No one should ever be on police bail indefinitely without charge and without even knowing whether or not they are to be charged.
Fourthly, the Government’s promise to continue the reform of the criminal justice system is welcome—if it can be delivered. This means implementing the Leveson review’s recent proposals and providing the resources to make them work. But they cannot work if criminal lawyers are demoralised and angry. The previous Lord Chancellor left office with both sides of the profession convinced that a non-lawyer could never do the job of Lord Chancellor. That leaves Mr Gove, as a non-lawyer, with a serious challenge and he will meet it only if he carries the professions with him.
He might start by announcing a full review of criminal legal aid to ensure that the system will sustain a high-quality service that will command public confidence and deliver increased efficiency. For savings in criminal legal aid, he should look first at compulsory legal expenses insurance to cover criminal defence costs for directors of larger companies. He should also ensure that wealthy defendants can use restrained assets to pay their legal costs—a move inexplicably opposed in the previous Parliament by the Home Secretary. These two measures would release substantial sums spent on legal aid in very high-cost cases. In 2013—a relatively low-cost year—they were still less than 1% of the workload but accounted for more than 10% of the costs. The Lord Chancellor should also announce an immediate review of the changes to civil legal aid to see how far they have damaged access to justice and how best to undo such damage.
Like the noble and learned Lord, Lord Falconer, my chief concern for this Parliament is the future of the Human Rights Act and our membership of the European Convention on Human Rights. It is a great relief that the immediate threat to repeal the Human Rights Act has been replaced by a more measured approach but the threat remains. We have been reminded many times that the convention was fostered by Winston Churchill. One of its principal draftsmen was the Conservative lawyer David Maxwell Fyfe—later, as Lord Kilmuir, Lord Chancellor—who was Attorney-General in the wartime coalition and then won distinction for his cross-examination of Hermann Goering at Nuremberg.
The joint commission established by the coalition Government recommended by a majority that there should be a UK Bill of Rights, which would incorporate and build on convention rights, with possibly some additional rights guaranteed. Attractive possibilities for additional rights would include incorporating the UN Convention on the Rights of the Child and establishing a series of guaranteed digital rights with strong but appropriate protections for online privacy. The commission majority believed that such a Bill would be more in sympathy with British legal traditions and might gain wider public acceptance than the Human Rights Act.
If that is what ultimately comes before Parliament, I would not in principle oppose it, provided that three conditions were met: first, that the UK would remain a member of the convention; secondly, that convention rights would still be justiciable in British courts; and thirdly that the British Government would still regard themselves as bound to comply with decisions of the Strasbourg court. On this last issue, there has been much muddled talk. Article 46.1 of the convention provides:
“The High Contracting Parties undertake to abide by the final judgment of the Court in any case to which they are parties”.
It follows that we cannot cut the link between the UK and the Strasbourg court without leaving the convention, and that is a course with which I would vehemently disagree. I believe that leaving the convention would set a dreadful precedent for other countries and would undermine the moral case we make for human rights internationally. I note that the Prime Minister appears to be reconsidering the Government’s position on the convention. He may be reflecting on the obvious damage to his current difficult negotiations with other EU member states that our threatening to withdraw from the convention would cause. But above all, I believe that we need a commitment to human rights that is anchored in international obligation, which requires respect and compliance from our Government, not just from a possible illiberal future Government but now, from this and all future Governments, of whatever political colour or colours.
I mentioned the welcome proposal to ensure that 17 year-olds are treated as children in the criminal justice system. This reform is a response to the English High Court judgment in the case of HC, in which Lord Justice Moses said:
“It is difficult to imagine a more striking case where the rights of both child and parent under Article 8 are engaged than when a child is in custody on suspicion of committing a serious offence and needs help from someone with whom he is familiar and whom he trusts, in redressing the imbalance between child and authority”.
The court found against the Secretary of State on Article 8, the right to family life. We should remember that most cases under the Human Rights Act are decided in British courts by British judges, not by the court in Strasbourg. However, if we had only a British Bill of Rights, the Secretary of State might persuade the Government that the cost of treating 17 year-olds as children, which she assessed as £19-odd million a year, would justify the Government in derogating from the purely British Bill of Rights, which Parliament, at the behest of a majority government, could do. It is our membership of the convention and the fact that the Strasbourg court is there in the background that gives our citizens an international guarantee. I, for one, am not prepared to lose it.
On the more general question of the British Bill of Rights, I found persuasive the arguments of the noble Baroness, Lady Kennedy of The Shaws, and Professor Philippe Sands, who were the minority members on the Commission, that a constitutional convention would be the best forum for discussing the future of human rights legislation in the UK before legislation were enacted. They were particularly influenced by the issues raised by devolution; so should we be. The convention is embedded in the Good Friday agreement. It is incorporated into the devolution settlement with Scotland, and Scotland wants to keep it that way. To interfere with it without Scottish consent would add to the threat to the union, and we should tread with great care. In Wales, the Commission recorded a general view of satisfaction with the Human Rights Act and convention system and the general view that human rights changes ought to be matters for the devolved Governments. Indeed, that issue has not really been resolved at any stage.
The Government have now signalled caution. A constitutional convention would combine caution with the best prospect of consensus and legislation that would command widespread respect. Consensus and widespread respect should be prerequisites for legislation in this crucial but extremely complex area.
My Lords, I, too, congratulate the noble Lord, Lord Dunlop, on his distinguished maiden speech and look forward to the two further maiden speeches that we shall shortly hear.
The gracious Speech promises us new legislation that will, among other things,
“improve the law on policing and criminal justice”.
That is obviously a good idea. Indeed, quite a lot in the Government’s manifesto commitments seems to me to be sensible. However, I confess to a little unease at the commitment to “increasing sentence lengths” and, more generally, to “toughen sentencing”. I find positively disturbing the commitment to,
“continue to review our legal aid systems so that they continue to provide access to justice in an efficient way”.
Surely that is a euphemism for slashing the legal aid budget still further, if the past is anything to go by.
I say nothing today on human rights, although I cannot promise to be so forbearing in the future, and that ought not to be taken as any encouragement to the Government to go ahead with their tentative plans.
Nowhere in the manifesto commitments is to be found—it is this that I want to focus on exclusively today—any hint of a suggestion that now, at long last, the Government propose to deal with an ever-worsening stain on the criminal justice system in this country: the continuing incarceration of IPP prisoners; that is, prisoners subject to an indeterminate sentence for the protection of the public. They are detained under the long-discredited scheme, which was abolished three years ago, that had been introduced by the Labour Government with effect from April 2005.
As many of your Lordships will know, the cause of such prisoners has been championed over many years by the noble and learned Lord, Lord Lloyd of Berwick, who, alas, has just retired from the House. It is imperative that the sorry tale of those prisoners should not now be forgotten, and I want to remind the House today of the vice of leaving the many remaining IPP prisoners indefinitely detained.
It is not even as if primary legislation is necessary to secure their release. In the LASPO Act 2012, the legislation that finally abolished the whole scheme for such indeterminate sentences, express provision was made in Section 128 for the release of existing prisoners. The Lord Chancellor was given explicit power to amend the release test, but, regrettably, the last Lord Chancellor, Mr Grayling, consistently refused to exercise it. It is my fervent hope that the new Lord Chancellor will speedily come to recognise that justice cries out now for him to do so. I should briefly explain the basic scheme and the injustices which arise, particularly acute in the case of those who were sentenced in the first three years of the scheme before it came to be marginally improved in 2008 for its final four years.
As originally enacted, the scheme placed a duty on the court to impose this form of sentence on any offender convicted of a violent or sexual offence—and no fewer than 153 different offences were deemed to fall into that category—who had previously been convicted of a similar such offence. The judge had effectively no discretion whatever in the matter: he was bound to assume that the offender posed a risk of committing a further such offence in future. A prisoner then serving such a sentence could not be released until he later came to satisfy the Parole Board that his detention was no longer necessary for the protection of the public.
At the same time as imposing the IPP sentence, the judge was obliged to state what is called the tariff sentence; that is, the minimum term to be served before the prisoner could in any event be released, the tariff usually being one half of the determinate term judged appropriate as the sentence required to punish him for his wrongdoing. In the first three years of the scheme, the tariff could be, and frequently was, as little as just a very few months.
As I have indicated, in 2008 the scheme was modified in two relevant respects. First, an IPP could not thereafter be imposed except in the case of someone whose tariff term was more than two years. Secondly, the judge was no longer required to assume that the offender posed a risk of future such offending and was allowed to form his own judgment as to that.
Even thus modified, however, the scheme was rightly recognised by the Conservative Government in 2012 to be unfair and unworkable. It had caused thousands of offenders to be given what were effectively life sentences and it was then abolished. However, there remained and there still remain a large number of IPP prisoners, some of whom have now served up to 10 years’ incarceration for offences that in themselves may have deserved—and one sees it from their tariffs—a punishment of only a few months. There still remain more than 500 IPP prisoners, detained during the first three years of the scheme, with tariff sentences of under two years, and there are roughly 5,000 such prisoners left in the system as a whole.
This is nothing short of a form of preventive detention or internment, wholly alien and inimical to our entire system and sense of justice and tradition. It is imprisonment not as punishment but purely to protect against the risk that the prisoner may offend again. No doubt if the release test is softened—for example, if the Lord Chancellor were to specify as a new test that these prisoners must be released unless the Parole Board is satisfied that they represent a serious risk of grave offending—some would indeed, on release, then commit further offences. But that, I suggest, is a price we must be prepared to pay to restore a sense of basic justice to the criminal justice system. I ask the noble Lord, Lord Faulks, whose return we all so greatly welcome, whether he will at least agree to bring this question—this scandal, as frankly it is—urgently to the attention of the new Lord Chancellor.
My Lords, as the noble and learned Lord, Lord Falconer, has reminded us, the Prime Minister has offered us what he calls,
“a clear programme for working people, social justice, and bringing our country together—put simply, a One Nation Queen’s Speech from a One Nation Government”.
It is therefore clearly our responsibility to evaluate the Government’s programme against that yardstick, and to measure the gracious Speech on its potential for national unity and social justice, at every point.
I know that today’s debate will reveal the breadth and depth of expertise in these matters in your Lordships’ House and I look forward especially to the maiden speeches of the noble Lord, Lord Lisvane, and the right reverend Prelate the Bishop of Leeds, whose experience in bringing together the dioceses of Ripon, Bradford and Wakefield makes the constitutional issues facing this House look entirely straightforward.
It is clear that in spite of commitment to one-nation government, there is no longer a national political party that can with credibility claim to be strongly representative of the whole union. The question we shall need to press is whether the proposed package of constitutional reforms hangs together as a coherent entity, rather than looking like a series of patches designed to fix a succession of pressing issues without any clear direction of travel. The constitution, as we know, is a machine with many moving parts and the scale of the challenge here is to recognise that any adjustment to one part affects the whole machine. We must ask if the Scotland Bill, the proposals for English votes for English laws, the Bill of Rights and the Cities and Local Government Devolution Bill are likely, taken together, to enhance our sense of national identity and the functionality of our Parliament.
From these Benches, we pressed some of these questions in our pastoral letter, Who Is My Neighbour?, published in February. Without fuller attention to the big question of what we want a future United Kingdom to look like—how much self-government its constituent countries ought to enjoy and how they should interconnect with others—then incremental responses to pressing political demands may, contrary to the intention of the Government, edge us towards break-up. That is why I continue to believe that a constitutional convention offers us the best way to consider these large questions in the round, rather than piecemeal. It offers us a reminder that the constitution belongs to us all and not just to the Government of the day. This could be a genuinely one-nation Government’s major contribution to our United Kingdom’s future.
In the Cities and Local Government Bill there is much to applaud in the plans for increased devolution and the overall aim of boosting growth and employment. Last year in the debate on the Queen’s Speech, I mentioned that my conversations in the East Midlands point to a clear consensus that the balance of power between local and central government was not right. Our councils are placed in the impossible position of having to take responsibility for abolishing front-line services, both wanted and needed by our local community. I went on to argue that an erosion of trust and confidence between the electorate and the Government had reached critical level, and that the concept of localism required urgently to be refreshed.
That concept also requires new habits in our town halls and local government structures, new collaboration across boundaries and new partnerships. Noble Lords will forgive me if I mention in passing the re-interment of Richard III as a vivid example of collaboration between city, county, universities and cathedral as a model on which to build for the future. Our own elected city mayor in Leicester has rightly said:
“These proposals make sense in metropolitan areas, but it’s important that differences in local political geography are recognised … We already have a directly-elected mayor in Leicester, with a clear mandate—but what’s important is that we don’t get left out, just because the area around us is more rural than it is in Manchester”.
As for English votes for English laws, the need to see the connections between changes is vital. The greater the devolution to Scotland and other parts of the United Kingdom, the more acute the West Lothian question becomes. The Government’s proposals raise two immediate questions. Do the arrangements in the other place require to be mirrored in some way in this House, especially at votes at Second Reading? Should Bishops perhaps confine ourselves to English-only issues? Secondly, how do the Government intend to address the challenge already mentioned, of not creating effectively two classes of MP by their proposed changes in the Standing Orders?
As many have observed, there is a clear connection between issues surrounding Scottish independence and the EU referendum. A no vote on the EU would hasten the demise of the Union and lead within a generation to a rump nation shorn of Scotland and of membership of the EU and without strategic influence internationally. The Bill of Rights will surely test the capacity of the Government to demonstrate statesmanship rather than gesture politics and to act in the service and interests of all citizens. In that context, the Children’s Society, of which I am a former chair, has said:
“Turning the clock back by scrapping the Human Rights Act would be reckless and threatens to weaken children’s rights”,
“Each year The Children’s Society uses the Act to successfully challenge poor treatment of vulnerable children. For example, it protects children by banning men suspected of grooming from contacting girls, and making sure that local authorities which fail to protect children are held to account”.
The Prime Minister’s commitment to social justice reads directly into any proposals that the Government bring forward in this area.
The same will obviously be true of the proposed changes to the welfare system due to receive your Lordships’ attention later this week. If this is to be done in the service of one nation, many questions arise. Is it sensible for the benefits system to continue to subsidise low-paying employers? Does this directly inhibit productivity? Is it not true that strong networks of community and neighbourliness measurably ease the pressure on the welfare system? Is it not therefore imperative that the bedroom tax be abolished since it is contemptuous of communities’ and people’s need for neighbourliness? Welfare reform needs to address the reconstruction of community if it is to serve a genuinely one-nation programme.
This will be my last parliamentary term before my retirement in July. With others on these Benches, it is an immense privilege to lead the Prayers each day for the uniting and knitting together of all persons and estates within the realm. For that reason, one-nation government will receive the support of this Bench but also consistent challenge where policies fail to address the need for that unity for which we daily pray.
My Lords, it is a great privilege to follow the right reverend Prelate the Bishop of Leicester. I have had the privilege of his company many times and have had much valuable instruction from him. In the diocese of Leicester, he has given tremendous leadership in bringing diverse communities together. I am sorry that the time is approaching when he plans to leave this House, but I am sure he will be a valuable member of the community to which he hopes to go.
I do not propose to follow the comments of the noble and learned Lord, Lord Falconer of Thoroton, about the qualifications of the present Lord Chancellor, except to remark that he had something to do with bringing about the position in which this is possible. Since he has mentioned it, I also take this opportunity to mention what I consider to be the very sad treatment of his immediate predecessor.
My comments on the gracious Speech will be confined to the proposal:
“My Government will bring forward proposals for a British Bill of Rights”.
This is an important and difficult subject which has received attention in this House since I joined it. I want briefly to mention the present position: the United Kingdom is bound by the European Convention on Human Rights and certain protocols to a statement of these rights and to implement decisions of the court set up under the convention in cases arising from this country. The noble and learned Lord, Lord Falconer of Thoroton, is not correct in saying that the ultimate decision on cases arising in this country rests with our Supreme Court. At the moment, it rests with the court in Strasbourg. I shall say something more about that in a minute.
Until the convention was incorporated into our law by the Human Rights Act, the text of the convention was not part of our law, although our courts had regard to it in deciding cases in which it was relevant. With the passing of that Act, the text became part of our law and our courts applied it in deciding cases in which it was relevant. The Act required our courts to have regard to decisions of the court in Strasbourg in reaching such decisions, as the noble and learned Lord said. The Act also conferred on our courts power to declare Acts of our Parliament inconsistent with the convention. The Act did not affect the obligation of the United Kingdom to implement decisions of the Court of Human Rights in Strasbourg, to which I have referred.
This position has now produced a difficult situation. The Strasbourg court has decided that our statute which denies persons serving a prison sentence the right to vote is inconsistent with the convention as supplemented by a protocol. A court in Scotland has declared that the statute is inconsistent with the convention and the Court of Appeal in England has agreed. Taking part in that decision, Lord Justice Laws gave a full account of what Parliament would require to do to implement the Strasbourg court’s decision. So far, Parliament has not taken any such action and has indicated no intention of doing so, so the obligation is in suspense in the sense that it has not been complied with. I must confess to a feeling of great anxiety that the United Kingdom, with its tradition for respect of the rule of law, not the rule of lawyers, should be in breach of a treaty by which it is bound.
It has been suggested in some quarters that we should adopt the procedure necessary to free the United Kingdom from its treaty obligation under the convention. That treaty, as was already mentioned by the noble Lord, Lord Marks of Henley-on-Thames, came into existence as the result of the way minorities had been treated in Europe in the preceding years. That treatment had been inflicted with the authority of the elected Government. The United Kingdom took an important part in setting up the treaty and its mechanism of enforcement, and I have little doubt that our leaders of that time were motivated by a concern for the citizens of other countries rather than those of the United Kingdom in particular. It would surely be extremely sad for the United Kingdom to withdraw from a treaty which we took such an active part in setting up with motives of concern for citizens of other states than our own.
I will make a suggestion for a possible way forward. We could seek an amendment to the convention to exempt from the obligation to implement the decision of the Strasbourg court where the court has decided that a statute of a member state contravenes the convention, and in that member state no court of that state has authority to set aside or modify that statute, if the legislature of that member state passes a resolution, which for stated reasons declines to implement the Strasbourg court’s decision. If such an amendment could be agreed, I venture to think that the effectiveness of the treaty would not be substantially diminished.
I regard the present situation as extremely unsatisfactory. That would be a possible way of recognising that at least in our country—and maybe in some other member states—the elected Parliament is sovereign and not subject to any kind of quashing order by the courts of this country. That of course has been the situation in our country for a very long time. The courts of our country, including the Supreme Court, have no power to quash or set aside an Act of Parliament. Instead of coming out of the convention altogether there may be something to be said for considering whether the convention should recognise the possibility that in some member states the Parliament is sovereign and not subject to having its Acts set aside or modified by the courts of that country. From that point of view there is something to be said for the view that if the courts of our own country cannot do anything about an Act of Parliament, why should it be so for the European Court of Human Rights?
Of course, the original idea was to seek an enforcement which would override the position of the elected Government, but it may be that nowadays the publicity attended by such a decision of the court in Strasbourg would be sufficient to afford protection for minorities, although so far, in this country at any rate, that particular minority of prisoners serving a sentence has not been protected in the way the court in Strasbourg thinks it should.
The proposal in the gracious Speech is for the preparation of a British human rights Act. So long as that is well done, I see no particular objection to it. The gracious Speech does not propose coming out of the convention on human rights. There have been suggestions of that in other quarters but all that the gracious Speech proposes is the formulation of a British human rights Act.
Difficulties with the Human Rights Act have been expressed in this House from more than one side. I refer in particular to the reference made by the noble and gallant Lord, Lord Craig of Radley, on Thursday to the difficulties in connection with the field of battle, and the application of the Act there. I do not know enough about it to say, but there may be some way in which that modification could be thought of. The idea that the Act would not apply at all would be pretty difficult, but I have certainly heard it said by noble and gallant Lords and noble Lords on other Benches than the Cross Benches that this is a difficult situation. These matters could be dealt with, and I venture to hope that they could be dealt with not in a partisan way but in a way that seeks to get the right solution to a difficult situation, done with deliberation.
This has nothing whatever to do with what I have just been saying, but I believe that the noble and learned Lord, Lord Falconer of Thoroton, may not be correct in his assertion that my noble friend Lord Dunlop, who gave his maiden speech today, had any part in the introduction of the community charge Act in Scotland. I was not a member of the Government at that time because I was on the Bench, but I have a feeling that it may not be a well-founded suggestion, and the noble and learned Lord would not like to be responsible, as a former Lord Chancellor, for making unfounded suggestions.