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Lord King of Bridgwater: My Lords, is the Minister aware that behind these problems is a serious issue. I was with a manufacturer of healthy bacilli yesterday. It is a growing UK industry and also has great benefits in animal husbandry. The manufacturer said that it is now quite impossible to trade with Europe because the degree of regulation and complication has made it impossible to carry on any active trade in that area at all.

Lord Warner: My Lords, I fundamentally disagree. This exercise it is about ensuring that consumers throughout Europe do not have misleading labels on their products.

Lord Monson: My Lords, the Minister has said that he does not know where the term fermented milk pudding comes from. I flew back on a British Airways flight from Lyons on Monday and at lunchtime I was served exactly that—fermented milk pudding. It splattered all over me, which tends to happen on planes because of pressurisation.

Lord Warner: My Lords, the fermented milk pudding eaters of this world should have their product properly labelled in the same way as consumers of yoghurt.

Judicial Independence

3.24 p.m.

Lord Dholakia asked Her Majesty's Government:

The Secretary of State for Constitutional Affairs and Lord Chancellor (Lord Falconer of Thoroton): My Lords, I have had several constructive meetings with the Lord Chief Justice about the constitutional reforms I announced to this House on 14th July. I expect to have further discussions. Protecting judicial independence is fundamental and was one of the principal reasons why the reforms were introduced. I am committed to ensuring that such independence is maintained and strengthened.

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Lord Dholakia: My Lords, I am grateful to the noble and learned Lord for that Answer. However, despite all the assurances given to the your Lordships' House, it is clear from the comments of the noble and learned Lord the Lord Chief Justice only last Friday that judicial independence is at risk from the Government's constitutional reforms. The Judges' Council report states that the reforms that are proposed,

    "would enable a future government to create a judiciary that was committed to its own political agenda by selecting criteria that would result in the appointment of judges sympathetic to its policies".

Does the noble and learned Lord accept that judicial independence is at the heart of our democratic process? What action does he propose to take to ensure that the appointment and functions of the judiciary are not tampered with?

Lord Falconer of Thoroton: My Lords, I entirely accept that judicial independence is at the heart of our constitution and our democratic process. I would also entirely accept that the judges, the Government and I are at one in ensuring that that independence is preserved under the changes that we introduce. One way in which we seek to embed and strengthen judicial independence is by taking the ability to appoint judges from the hand of a government Minister and placing it much more firmly in the hands of an independent appointments commission. We must discuss the matter in detail with the judges to ensure that we get the detail right.

Lord Sheldon: My Lords, is my noble and learned friend aware that the law of unintended consequences can have powerful results in a country without a written constitution? What we do have is a tradition that has given the judiciary the independence that has been entrenched in that particular tradition. Will my noble and learned friend acknowledge that the role of Lord Chancellor has provided the high position and special standing as the head of the judiciary from which we have all benefited? Is he absolutely certain that, before tinkering with one of the foundations of our liberties, he will be able fully to justify these changes?

Lord Falconer of Thoroton: My Lords, as we have made clear at every stage, the preservation and strengthening of the independence of the judiciary is what we seek to achieve. As I said in answer to the noble Lord, Lord Dholakia, it is a fundamental part of our constitution. That is why the detail matters and that is why we have adopted our approach. As somebody said this morning, imagine if we had said to Parliament or the judges, "How about having a Cabinet Minister appoint the judges, discipline a large number of them and decide where individual judges sit?". We do not believe that that is a sensible basis on which to continue. The independence of the judiciary is embedded in our constitution. We will ensure that that is reflected in the statute that we introduce.

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Lord Ackner: My Lords, will the noble and learned Lord explain why the Sentencing Guidelines Council set up by the Criminal Justice Bill was pre-empted by the Home Secretary producing Schedule 19, which ups by 50 per cent the sentence previously approved by the Lord Chief Justice himself and the Lord Chancellor? In the words of the Lord Chief Justice in his memorandum deposited in the Library, that has made it quite impossible to accommodate those who, as a result of that upping by 50 per cent—without any consultation—will over-fill the prisons and, as a result, it will show that judicial discretion has been tampered with by ministerial decree.

Lord Falconer of Thoroton: My Lords, there is no doubt that sentencing is a matter for judges and Parliament together, sometimes by setting minimum sentences, sometimes by setting maximum sentences and, in the case of murder, by setting out principles in statute. As has been made clear in all of the debates in this House, the provisions set the starting point in each individual case. It is then for the judge to reach a conclusion about the right sentence based on the merits of the case.

Lord Mayhew of Twysden: My Lords, to what deficiency on whose part does the noble and learned Lord the Lord Chancellor attribute the Lord Chief Justice's present anxiety for the future independence of the judges?

Lord Falconer of Thoroton: My Lords, so far as the current position is concerned, there is absolutely no deficiency whatever in the independence of the judges. However, as was made clear on 12th June when the reforms were first announced and on 14th July, we need to embed that independence and look forward to the future. As we made clear, having one person making all the appointments is not an appropriate way forward. An independent Appointments Commission preserves independence and provides a better way for the future. Every other modern, developed democracy has been able to have that. I think that we can.

Lord Thomas of Gresford: My Lords, will the supervising and disciplining of the judiciary be in the hands of an elected government Minister, such as the Home Secretary, after these reforms come into effect?

Lord Falconer of Thoroton: My Lords, the disciplining of the judiciary is absolutely vital to ensure the independence of the judiciary. We made it clear in the paper that we produced on 14th July that, with the absence of the Lord Chancellor—with the abolition of that role—new arrangements would have to be introduced. Those arrangements must give the judiciary

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confidence. They cannot be ordered to give particular decisions by the executive. That is vital. It would have to be a partnership between the executive and the judiciary.

Lord Renton: My Lords, will the noble and learned Lord confirm that some of our ablest judges have served in Parliament and belonged to various parties?

Lord Falconer of Thoroton: My Lords, indeed, if one looks back in history, some of our ablest judges have indeed served in Parliament and have been members of political parties.

The Earl of Listowel: My Lords, is the noble and learned Lord the Lord Chancellor concerned that in the Criminal Justice Bill the minimum starting point is being raised from 12 to 15 years old for those children who kill? Only last May, the Lord Chief Justice, with advice from the Sentencing Advisory Panel, decided that the minimum starting point should be 12 years old. Is the Lord Chancellor concerned that a minimum starting point at 15 years old is being imposed on the judiciary? Does that not inevitably lead to an increase—perhaps only a slight increase—in the likely length of sentence for those children? Is he not concerned about that?

Lord Falconer of Thoroton: My Lords, I know that the noble Earl has participated fully and helpfully in all the debates on the schedule in which the juvenile figure is mentioned. There are different starting points for different ages. Most juveniles convicted of murder are convicted at the age of 16 or 17. The schedule allows a starting point for different ages. It also allows judges to take into account the precise age at which the offence was committed. There is still a substantial discretion.

Regulation of Investigatory Powers (Intrusive Surveillance) Order 2003

3.30 p.m.

Debate resumed.

Viscount Goschen: My Lords, those noble Lords fresh to the debate, who did not attend before lunch, will have missed the extraordinary spectacle of the noble Baroness, Lady Hollis, arguing vigorously against government legislation—that is, the orders regarding the Regulation of Investigatory Powers Act being considered today—being applied to her own department. A number of noble Lords in the Chamber seemed to have puzzled faces because the noble Baroness's comments appeared to drive a fairly substantial coach and horses through the arguments being advanced by her noble and learned friend the Attorney-General as to the effectiveness and the necessity of the regime.

Indeed, we live in dangerous times. No Member of the House who spoke on any of the orders today—either against or for the amendments—would do anything

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which would weaken the ability of the appropriate agencies to prevent terrorism, nor to prosecute serious offenders. However, we must recognise that the public's trust in the integrity of the law enforcement process will be weakened if advantage is taken by the Government to take additional powers in this climate without proper safeguards. If it were realised beyond this Chamber and beyond the speciality press the degree to which the Government have awarded themselves new powers under the two Acts to which we are referring—that is, the Regulation of Investigatory Powers Act and the Anti-terrorism, Crime and Security Act—there would be considerable disquiet.

In addition, there is the great laundry list of organisations contained in the communications data order which is being added to those bodies which can acquire communications data. Not only the police, security services, Customs and that type of organisation, but also National Health Service trusts, ambulance services, the Department of Transport and fire authorities will be able to acquire all types of data under Section 21(4) of the Act. Of course, those are all very worthy bodies, but as the noble Earl, Lord Erroll, asked just before lunch, why could their inquiries not be forwarded through the police? Would it not be much more appropriate to use a regime through the police, such as that for search warrants? If the net is cast absurdly wide, abuse would not be just expected, it would be guaranteed. With the addition of the bodies contained within the communications data order, how many additional individuals will be authorised to acquire the data?

There has also been a great deal of argument about whether the requisite powers already exist and whether they are just being brought under the safeguards of the Act. Up to a point, that may be so. But are the original powers being rescinded? When my noble friend Lady Blatch asked that question this morning, I think that the answer from the noble and learned Lord the Attorney-General was that if the powers were rescinded, it would be difficult not to disrupt other powers. That appears to be an extremely weak argument. How can the Government have it both ways? How can they say that while they have the existing powers they would like to have them under a new regulatory regime, but they will retain the old powers, just in case.

We are also concerned about the definition of communications data. I recall the long and tortuous debates—the noble Lord, Lord Bassam, represented the Government—when we discussed the original Regulation of Investigatory Powers Bill and the great changes made in another place because of those representations. The key point is that it is far from clear. It was not clear three years ago and it is less clear now.

In an age of cookies and hyperlinks being attached to e-mails and voice mail being accessed electronically, are these communications data or communications themselves? They may sound like esoteric points, but they are very important. The noble and learned Lord drew a firm parallel between the interception or the monitoring of communications data and the interception of communications itself. When communications largely were written by letter, that clear definition could be

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made; now it cannot. As we have heard, a firm picture can be built up of an individual's life and with whom he or she is in contact, just by the use of communications data.

We need specific answers from the noble and learned Lord about the capacity that the commissioner will have to oversee the enormous number of requests. The Home Office has admitted to at least 500,000 possible requests. I should be interested to know how that figure compares with the total number of police investigations. But it is a huge number, which the industry thinks might be three times higher. We have heard from some speakers today that the commissioner will have a staff of four to monitor a possible 1 million transactions, which would be extraordinarily difficult to do. What is the commissioner's budget? How many staff will there be? How many inquiries do they expect?

The noble Lord, Lord Phillips of Sudbury, also put a powerful case for a provision to be made to require the commissioner to inform the subject of a wilful misuse, subject to the interests of national security. At Question Time yesterday, the noble Baroness, Lady Scotland, was asked that exact question by the noble Countess, Lady Mar. The Minister ducked the question just as it was ducked earlier today. How can one complain without knowing whether abuse has been made of one's own data?

A number of serious concerns have come from around the House. I suggest that satisfactory answers are needed before accepting the orders.

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