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I said, “Oh yes? When will they start negotiating with the Scottish Government about pensioners’ bus passes?” The Government have rightly given themselves powers to ensure that, when it is introduced, a national bus pass can be made reciprocal with Scotland through a process of negotiation, but they have refused to embark on those negotiations. However, on the advice of the Prime Minister, the Queen uttered the words:

so I demand that Ministers here work closely with Scottish Government Ministers to ensure that, when the national bus pass is introduced, pensioners in my constituency can cross the border to their nearest shops or GP practice and that people on the Scottish side can come to Berwick or Wooler to do the same.

I turn now to the wider constitutional issues. I genuinely welcome the interest that the Prime Minister has taken in the constitution and the principles that should underlie it. His speech last Thursday had a refreshing emphasis on principle, particularly that of liberty. What could be more welcome to me as a Liberal than his acceptance that all policies and legislation should be subject to a liberty test? That principle is very sound, but it should be expounded more systematically
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and rigorously—in respect of identity cards, for example. They create a less free atmosphere for the many without capturing the few to whom they are allegedly directed.

The principle should be applied to another factor in the phenomenon described by the hon. and learned Member for Medway: the desire to legislate as a means of showing that the Government are doing something. There is a desire among Ministers to be seen to be doing something other than general politics. The door of what he described as the Willy Wonka room in the Home Office is opened when Ministers say, “We must be seen to be doing something!” Civil servants rush around to find them something to be seen to be doing. That is when the cupboards are cleared and the shelves ransacked for bits that can be made into legislation—to show that the Government are acting. The liberty test also needs to be applied in those circumstances.

Mr. Heath: Does my right hon. Friend agree that one of the other weasel phrases sometimes heard about legislation is that it is being used “to send a signal”? Legislation is not for sending a signal, but for putting in statute. I would prefer a scriptorium to a Willy Wonka room in the Home Office, which often seems to send signals to all sorts of people who do not need them.

Mr. Beith: I wholly agree. Legislation is for defining the law and determining what is and is not an offence, not for sending signals. Ministers can make speeches to send signals as much as they like, but they should not use the legislative process or criminal justice to do so.

Another aspect of the liberty principle is that it needs to be applied to existing legislation. The Prime Minister and Home Office Ministers need to go back through the statute book and apply that principle to some of the stuff that has been introduced in the past decade.

I move to another point of principle. I want to question the increasing tendency on the part of the Prime Minister and the Lord Chancellor, who did it today, to qualify liberty by reference to responsibility—they say that with freedom comes responsibility. Of course we want people to behave responsibly; society runs a great deal better if they do. Ministers are fully entitled to promote responsible behaviour and I hope that they will do so by example as well as sermon. However, one cannot qualify liberty by reference to behaviour other than by the use of the law to determine what is a crime and what loss of liberty follows conviction for it. If a person commits a crime, they lose some of their liberty—through a custodial or community sentence, or the loss of money as a result of a fine. Their liberty is rightly affected by the fact that they had committed a crime and broken the law. However, outside penal institutions, rights cannot be made contingent on general good behaviour; they can be limited only by the due process of the law. We cannot have some kind of people’s soviet ruling whereby someone loses a measure of their free speech because they have failed to help with the scout troop or to use their time and energy to help the parish council in the litter-clearing exercise that was rightly undertaken. There are lots of good things that people should do and that I want them to do—I am involved in encouraging and supporting voluntary organisations—but
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we cannot make people’s willingness to behave responsibly the basis on which legal rights exist and on which a failure of duty leads to those rights being taken away.

There is a dangerous confusion between what can be defined by law, and defines the extent of rights, and the promotion of good behaviour in society, which I strongly support—after all, I spent some of my Sundays as a Methodist local preacher getting into pulpits and encouraging people to observe the precepts of the Christian gospel. However, the pulpit is the place for that, not the statute book, which must contain a clearly defined understanding of what can be determined by law. For that we go back to something that the Prime Minister was ready to quote: John Mill’s essay “On Liberty”. When liberty is restrained, it is to protect the liberty of others, not to enforce our particular moral views or to encourage good things.

I want to turn to some specific items in the Gracious Speech. It says:

That sounds very good and very grand. The Justice Committee is to take evidence on devolution 10 years on, including the English question and the issue of the regions, given that we now have a situation where much power is exercised at regional level without any democratic accountability. These are not questions that admit of easy solutions; indeed, with every solution come new questions and problems. We have recently heard from Conservative Members arguments about what was called in the 19th century the “in-out” principle—English votes on English laws. Some people outside this House argue strongly for an English parliament. My party has traditionally argued for regional assemblies. Everyone is trying to address a genuine problem, which must be done in the context of a United Kingdom in which England is much larger than the other units—so large that when looked at from my end of the country London is further away than it is from much of Scotland. Purely London-based solutions do not necessarily answer this. The Justice Committee is holding a major inquiry on devolution 10 years on—not to review how it has worked in Scotland, because we see that as the province of the Scottish Affairs Committee or, in the case of Wales, the Welsh Affairs Committee—but to see how it has affected the United Kingdom as a whole. One consequence of that is that we will need to look pretty closely at the situation in England.

In the context of the Government’s saying that they want to strengthen the relationship between the Government, Parliament and the people, I am minded to raise the small matter of the referendum on local government reorganisation. In Northumberland, we had a referendum in 2004 to address the question of, first, whether there should be regional assemblies and, secondly, whether there should be one or two unitary authorities to govern the whole county of Northumberland, at present served by a county council and six district councils. People voted by a substantial majority not to have a regional assembly, so we are not having one. People voted by a substantial majority to have two unitary authorities, not one, so we are going to have one. The Government have decided that because certain
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stakeholders they chose to consult—namely, the chief constable and the north-east chambers of commerce—would like one authority, that outweighs the vote of the people who voted in the referendum. Those stakeholders were chosen by the Government and, almost without exception, cover areas much larger than the one or two authorities that are under discussion—it is much more convenient for them to deal with fewer authorities, not more, and they tend to look at it that way—but their votes carry more weight than those of the people who voted in the referendum. The Government still have quite a bit to learn about how to apply the principle of strengthening the relationship between Government, Parliament and the people.

Another issue that will be considered in the course of this Parliament is that of judicial appointments. The Government recently, quite rightly, changed the judicial appointments system—a reform that I strongly supported and that the Committee examined, and is monitoring, in detail. Some of the objectives are not initially being met and problems have arisen. There have been significant delays in judicial appointments and difficulty in ensuring that we are getting diversity by the proper and accepted route of identifying candidates for judicial office who are fully suited to it but come from a wider background than has been the case hitherto. The new system is gradually bedding down, so it may not be a good idea to make fundamental changes again so soon, although I fully accept the argument behind the Government’s changes, which is to minimise ministerial, and therefore potentially political, involvement in judicial appointments.

The Government are considering this against the background that they are still in conflict with the judges following the creation of the Ministry of Justice. There is still an unresolved dispute between Ministers and judges about whether it was created on a basis that will protect judicial independence, particularly in a situation where the Department to which they relate has in its brief the prison system—that all-consuming, voracious eater-up of Government money. Judges rightly fear that the functioning of the judiciary could be impaired, financially and more generally, by being co-located with the prison system. The Government did not have much alternative to setting it up on the basis that they did, but they were wrong not to have sought to resolve the dispute beforehand. For the Lord Chief Justice to read in his Sunday papers that there was going to be a Ministry of Justice was clearly no way to go about it.

In their paper on the subject, the Government talked about the judiciary in Parliament and the question of confirmation hearings. My Committee has been firm in its opposition to the idea that we should hold confirmation hearings for the appointment of judges. We have all looked at the American experience, which might be sufficient to put us off, but there are more compelling theoretical reasons not to do it. In this country, we choose judges not according to the views that they hold but according to their ability to set aside those views and make objective judgments. It is therefore irrelevant if a judge is of a rather conservative disposition or a rather liberal one—we want to know whether he can make judgments according to the law that are not unduly influenced by the dispositions that he might have.

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Mr. Howard: I am sympathetic to the position that the right hon. Gentleman and his Committee have taken, but it involves a growing difficulty, particularly as a consequence of the Human Rights Act 1998. The decisions that judges are being asked to make are increasingly political in flavour. Given that, for example, they now have to decide on issues of proportionality, which were traditionally always reserved for elected Members of Parliament, is it not understandable, and perhaps inevitable, that their views will be seen to be relevant? Is that not a particularly damaging consequence of the new responsibilities that have been entrusted to the judiciary?

Mr. Beith: I wonder whether the right hon. and learned Gentleman is still feeling the pain of the many judgments against the Home Office during his time as Home Secretary. In so far as there may be truth in what he says, there is another reason not to have confirmation hearings—to ensure that we continue to have a process of choosing judges for their objectivity, not one in which we seek to place in position judges who might give the result that particular Governments want at particular times. The process that he attributes to the Human Rights Act was always likely to go on anyway, but in Strasbourg rather than in our own courts. I am rather more confident of the ability of our own judges, against the background of our tradition, to be as objective as it is possible to be in the kind of situation that he describes than I am about a mixed panel of judges who come from very many different traditions.

Another problem arises from the changes that the Government have made—that we will be plucking from the House of Lords the Law Lords, who without any doubt made extremely valuable contributions to debate, although in the constitutionally difficult situation that, until they resolved that they were not going to do it any more, they were potentially framing legislation on which they might subsequently pass judgment. That has not been the practice in recent years because they decided to absent themselves from issues on which they might give judgment or cases on which they had previously spoken during the passage of the original legislation. We will lose from the House of Lords that ability to learn how things will affect, or have affected, the judiciary. Following discussions that I had with the past and present Lord Chief Justice, my Committee has successfully developed the solution that judges from every level should appear before the Committee, which then reports to the House on the evidence that they have given on issues such as how the judiciary is coping with the pressures on it or the working of particular pieces of legislation. Such questions are divorced from the political process, and we have posed them in an atmosphere that enables judges to give valuable evidence without feeling that their position is compromised in any way.

Mr. Bellingham: Does the right hon. Gentleman agree that a number of the sitting Law Lords do excellent jobs as chairs or members of all-party groups and that they contribute a great deal in a totally non-party political context? Does he also agree that, if the House of Lords is not reformed in the foreseeable future, former Supreme Court judges should go there as Cross-Bench peers?

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Mr Beith: The hon. Gentleman is right to say that the Law Lords—and former Law Lords—make an extremely valuable contribution, but the Committee took a strong view on the matter, believing that either no justices of the Supreme Court should go to the second Chamber in retirement, or that all of them should. In other words, the Government should not be allowed to pick and choose from among Supreme Court judges as it might be thought that those judges were waiting to see whether they would get the rather attractive retirement option of being appointed to the second Chamber.

My inclination is that no Supreme Court judges should be so appointed, and indeed that we should continue to employ them for as many years as we reasonably can. Sometimes we get a bit too precious about age restrictions in the judiciary. In earlier years, when we had 85-year-old judges, we may have gone to the other extreme, but we may have got a little too fussy about judges who may still be able to render active service.

The Government seem to be groping for an alternative to confirmation hearings. They have looked at the idea of post-appointment hearings, but I think that they would be an unnecessary formality. My Committee takes evidence from judges when it is relevant to what we are doing, or when we sense that judges want to give evidence about a particular matter. I see no benefit in bringing a judge before the Committee for an evidence session just because he happens to have been appointed head of the Queen’s bench division in the past two or three months. There is no logic in that, and it risks formalising what I believe is developing into a fruitful and effective process, by which judges at every level—from the Lord Chief Justice to lay magistrates—give evidence about every aspect of the work of the courts when it is most valuable and appropriate to do so.

The Government should forget confirmation hearings and not try to construct some alternative to them. Such hearings may be appropriate for those people—the regulators, ombudsmen and so on—who might better be regarded as officers of the House, but they are probably a false trail for members of the judiciary.

I turn now to some of the other issues arising from the Government’s constitutional agenda. I am very pleased that, at long last, the Government have abandoned their crazy scheme to use fees as a proxy to restrict the freedom of information regime. That would have been seriously damaging, and would have prevented the complex of FOI requests that often enable us to get at the real truth of whether something is working or not.

I warmly welcome the Government’s decision on that, and their moves to consider other matters, such as the 30-year rule. That is excellent, although I and my Committee would like them to go further and make the Information Commissioner an Officer of the House, paid out of the parliamentary budget rather than the Department’s budget. It is not a good idea for the poacher to determine the gamekeeper’s budget. The Justice Department is often criticised for its handling of FOI issues, and I would much prefer the Information Commissioner to have the same independence as that
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enjoyed by the Comptroller and Auditor General or the Scottish Information Commissioner, the latter being appointed and funded by the Scottish Parliament.

In passing, I want to mention ecclesiastical appointments, which fall within the Justice Department’s responsibility. The Prime Minister, who comes from a good Scottish Presbyterian background, is anxious to divest himself of involvement with them. The Government said that they were going to abolish the post of Lord Chancellor, but they have had to take a step back—literally, in the case of the way that the latest Lord Chancellor stepped backwards from the throne yesterday. They forgot that the Lord Chancellor appoints about 1,000 people to various ecclesiastical posts.

The Committee took evidence about the appointments system from its customers—the people in the parishes to which the Lord Chancellor makes appointments—and we have never come across a group of people more satisfied with the civil service. All the parish representatives were unanimous in their praise of the Downing street officials who manage the task. We were told that those officials were very careful in identifying a parish’s needs and in following up to make sure that their judgments were correct and that the people appointed had appropriate support.

We then spoke to three bishops to see what they thought. Each had a completely different view about what should be done with the patronage if it were taken away from the Lord Chancellor and was in some way handed over to the Church. So we were confronted with people who thought that the present system worked extremely well, and with three bishops who could not agree about what system should replace the current arrangements. To me, that does not seem like an environment in which a reforming Government can move very easily, and I therefore counsel them to be a bit careful. As a non-conformist, I can well understand the arguments of principle, but it was a fascinating evidence session. Before Ministers take the matter much further, I hope that they will sit down and read the evidence that was given on that occasion.

I turn now to party funding. Mine is an all-party Committee, and we agreed unanimously on the principles involved in party funding and the outline proposals to deal with it. We were clear that there was great public concern about big money flowing into political parties, from whatever source. We believed that any new system should offer visibly cleaner politics, based on a voluntarily agreed and binding framework for a limit on donations that would put no one party at a disadvantage.

Hayden Phillips took those principles and developed them a little further in the proposals that he put forward. The Constitutional Affairs Committee addressed the questions of large private donors, such as Lord Ashcroft, and trade union funding. It was not easy for Conservative or Labour members of the Committee to reach an agreement on those matters, but reach one we did. That involved each side recognising that no solution would be sufficient if it ignored the problem that was perceived to exist with the other party.

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