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Noble Lords: Oh!

Lord Goodhart: That is true, my Lords. If you look at it now, it is the party membership in this House that more accurately represents the votes cast at the last general election than does the House of Commons.

It is, we believe, our duty to stand up for constitutional rights and civil liberties. If this Bill is to fall, it will be the Government who will be responsible. We are not seeking to block legislation. There is an acceptable compromise here, but the Government are refusing to accept it. So if at the end of the day—and we can see that there may be more of these ping-pongs to come—the Government refuse to do what they should to accept the amendments that we have put forward, we believe that it will be the Government who will be responsible and the Government who will pay the price. I beg to move.

Moved, as an amendment to Motion A, leave out from "House" to end and insert "do insist on its disagreement with the Commons in their Amendments 1A and 1B to Lords Amendment 1; do insist on its Amendments 37Q to 37T in lieu of Lords Amendment 8 to which the Commons have insisted on their disagreement; do insist on its insistence on Lords Amendments 12, 13, 15, 17, 22, 28 and 37 in respect of which the Commons have insisted on their disagreement and do insist on their disagreement with the Commons in their Amendments 37A to 37C and 37E to 37O in lieu of those Lords Amendments; do insist on their disagreement with the Commons in their Amendments 17H to 17M to the words restored to the bill by the Commons insistence on their disagreement to Lords Amendment 17; and do disagree with the Commons in their Amendment 37V in lieu.—(Lord Goodhart.)

Lord Richard: My Lords, I never thought that I would hear the party of Lloyd George get up in the House of Lords and claim that this House was more democratic and more representative than the one that is elected down there at regular intervals and which has been returned by the most enormous majority.

The noble Lord, Lord Goodhart, has turned this debate not into a discussion on the merits of the Bill, but into a major constitutional issue of whether this House should prevail or that House should prevail. With great respect, he arrogates to himself the most astonishing position in saying, "We are right, and because we are right we are entitled to insist. Despite the views that have been expressed down the Corridor, we are entitled to insist that our views should prevail". That is just wrong. There are people sitting on those Benches over there, many of whom have been in government and many of whom were Ministers. They know that when they were Ministers they would never
 
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have accepted the proposition coming from the Liberal Democrats. There is a distinction here between the Conservative Party and the Liberal Democrat Party. At least many on the Conservative Benches have been in government and know what government is like. They know what the relations between the two Houses must be. I see some on the Liberal Democrat Benches who know about it who ought to be ashamed of themselves, because they know far better about how government works than they are displaying this evening.

If we wish to have a major constitutional eruption, we should go on doing what we have been doing. It seems to me that the time has now come. We have asked the House of Commons to think again; it has thought again and it does not agree with us. We sent it back; and asked it to think again yet again. It did think yet again; but it did not agree with us. In those circumstances, how on earth can we in this House—which is unrepresentative, undemocratic, nominated, or in some cases hereditary—possibly maintain that it is us who are right and the House of Commons which must be wrong? The time has come for us to submit. People over there who have been in government know that it is the time. With respect to the Liberal Democrat Party, it should stop playing games.

Lord Maclennan of Rogart: My Lords, there are two constitutional issues, and the two speakers on the Government Benches have failed to deal with the first. It may be true that this House is not democratic, and few would deny it, but that it is representative is also true.

The issue that we face and which has kept us here, and which may keep us here for considerably longer, is that the people of this country have no desire to see absolute power entrusted to the Prime Minister by a quiescent Parliament. It is well known, and indeed it is obvious in everything that he has said, that the Prime Minister brooks no opposition. He has come to this point as a result of his overweening parliamentary majority.

It has been, as previous Conservative Ministers have said, a supreme example of the unwisdom and misfortune of such a huge parliamentary majority in the House of Commons. This House has a duty to speak for Parliament. It has no right to duck that because it is being browbeaten by Ministers of the Crown, or former Ministers of the Crown, in support. That way lies the disruption and the threat to our liberties. If this Government were to come forward and propose to us, and persuade their supporters in the House of Commons, that in the use of torture in our own gaols lay the safety of our people, would this House accept it? I suggest that it would not.

5.15 a.m.

The measures before us tonight may not be so abasing of our standards, but they bear within them the threat of the corruption of our legal system and the fundamental
 
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protection of the freedoms of our people. That is why we shall persist as long as we are constitutionally capable of doing so.

Lord Cobbold: My Lords, as a humble Back-Bencher from the Cross Benches who has listened to the debate in both this House and looking down from the Gallery in the other, I am amazed that there is still such a political battle on issues on which we all agree. The only issue that could solve the problem is the sunset clause. Whatever the faults, benefits or good qualities of the legislation, all the sunset clause asks is the chance to have a look at it again in a year's time. Surely we can agree among grown-up people at this time of night that that is sensible.

Lord Kingsland: My Lords, on the substance of this matter, we are in complete harmony with the Liberal Democrats. Without a balance-of-probabilities test, many innocent people will be incarcerated. Without a role for the Director of Public Prosecutions, many people will go unprosecuted. Without a judicial process for non-derogating control orders, a politician can continue—as the noble Lord, Lord Goodhart, said—to make control orders on the basis of secret evidence, virtually unsupervised. On all those crucial issues, the Government have moved not an inch.

The noble and learned Lord the Lord Chancellor said that this House had no democratic authority to repudiate the amendments. That argument is a complete sham. The authority that your Lordships have under the Parliament Acts 1911 and 1949 is given to this House by the democratic House. Our powers are completely underpinned by the democratic process; and we would be derelict in our duty if we did not use them in a case where we felt that they ought to be used.

There is of course a principle of parliamentary sovereignty, but there is also in our constitution a matching principle of the rule of law. It is the rule of law that is under threat by this legislation. That is why we continue to protest. The noble and learned Lord the Lord Chancellor says that we have been inflexible, but the opposite is in fact the case. It is the noble and learned Lord who has been inflexible. On the crucial issue of the sunset clause, we have shifted our position from November to March the following year.

Noble Lords: Oh!

Lord Kingsland: My Lords, that is a big change. I say to the Government, where is yours?

Lord Falconer of Thoroton: My Lords, at the request of this House, we introduced judicial scrutiny before almost all the orders were made. The Conservatives and the Liberal Democrats support the concept of control orders, yet they block the Bill.

The noble Lord, Lord Kingsland, is right—this House gets its authority from the Commons. What we do is scrutinise; we ask the Commons to think again. In the past, we have always accepted that once the Commons
 
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has considered and considered our proposals, we then bow to its will. I am sure that that is what Lloyd George would have had in mind.

5.19 a.m.

On Question, Whether the said amendment (A1) shall be agreed to?

Their Lordships divided: Contents, 153; Not-Contents, 98.


Division No. 9


CONTENTS

Addington, L.
Ahmed, L.
Alliance, L.
Anelay of St Johns, B.
Arran, E.
Ashcroft, L.
Astor, V.
Astor of Hever, L.
Avebury, L.
Baker of Dorking, L.
Barker, B.
Bell, L.
Bonham-Carter of Yarnbury, B.
Bradshaw, L.
Bridgeman, V.
Brittan of Spennithorne, L.
Brooke of Sutton Mandeville, L.
Brougham and Vaux, L.
Buscombe, B.
Byford, B.
Carlisle of Bucklow, L.
Chalker of Wallasey, B.
Clement-Jones, L.
Cope of Berkeley, L.
Crickhowell, L.
Cumberlege, B.
Denham, L.
Dholakia, L.
Dixon-Smith, L.
Donaldson of Lymington, L.
Dykes, L.
Eccles of Moulton, B.
Eden of Winton, L.
Elles, B.
Elton, L.
Falkland, V.
Falkner of Margravine, B.
Ferrers, E.
Fookes, B.
Forsyth of Drumlean, L.
Fowler, L.
Freeman, L.
Freyberg, L.
Garden, L.
Gardner of Parkes, B.
Garel-Jones, L.
Geddes, L.
Glenarthur, L.
Glentoran, L.
Goodhart, L.
Goschen, V.
Greaves, L.
Hamwee, B.
Hanham, B.
Harris of Peckham, L.
Harris of Richmond, B.
Hayhoe, L.
Henley, L.
Higgins, L.
Hodgson of Astley Abbotts, L.
Hogg, B.
Home, E.
Hooper, B.
Howard of Rising, L.
Howe of Aberavon, L.
Howe of Idlicote, B.
Jenkin of Roding, L.
Kalms, L.
Kennedy of The Shaws, B.
Kimball, L.
King of Bridgwater, L.
Kingsland, L.
Knight of Collingtree, B.
Laing of Dunphail, L.
Lamont of Lerwick, L.
Lang of Monkton, L.
Linklater of Butterstone, B.
Liverpool, E.
Livsey of Talgarth, L.
Lloyd of Berwick, L.
Lucas, L.
Ludford, B.
Luke, L.
Lyell, L.
McColl of Dulwich, L.
Maclennan of Rogart, L.
McNally, L.
Maddock, B.
Maginnis of Drumglass, L.
Mancroft, L.
Marlesford, L.
Mayhew of Twysden, L.
Michie of Gallanach, B.
Miller of Chilthorne Domer, B.
Miller of Hendon, B.
Montrose, D.
Moore of Lower Marsh, L.
Morris of Bolton, B.
Naseby, L.
Neill of Bladen, L.
Neuberger, B.
Newby, L.
Newton of Braintree, L.
Northbrook, L.
Northesk, E.
Northover, B.
Norton of Louth, L.
Oakeshott of Seagrove Bay, L.
O'Cathain, B.
Onslow, E.
Park of Monmouth, B.
Pearson of Rannoch, L.
Peyton of Yeovil, L.
Phillips of Sudbury, L.
Razzall, L.
Redesdale, L.
Rennard, L.
Roberts of Llandudno, L.
Rogan, L.
Roper, L. [Teller]
Rotherwick, L.
Russell-Johnston, L.
Ryder of Wensum, L.
Saatchi, L.
Scott of Needham Market, B.
Seccombe, B. [Teller]
Selborne, E.
Selkirk of Douglas, L.
Selsdon, L.
Sharp of Guildford, B.
Shaw of Northstead, L.
Shutt of Greetland, L.
Smith of Clifton, L.
Sterling of Plaistow, L.
Stewartby, L.
Stoddart of Swindon, L.
Strathclyde, L.
Taverne, L.
Thomas of Gresford, L.
Thomas of Swynnerton, L.
Tope, L.
Tordoff, L.
Ullswater, V.
Vallance of Tummel, L.
Waddington, L.
Wakeham, L.
Waldegrave of North Hill, L.
Wallace of Saltaire, L.
Walmsley, B.
Watson of Richmond, L.
Wedderburn of Charlton, L.
Wilcox, B.
Williams of Crosby, B.

NOT-CONTENTS

Alli, L.
Andrews, B.
Ashton of Upholland, B.
Bach, L.
Bassam of Brighton, L.
Bernstein of Craigweil, L.
Billingham, B.
Bragg, L.
Brett, L.
Brooke of Alverthorpe, L.
Brookman, L.
Campbell-Savours, L.
Carter, L.
Carter of Coles, L.
Clarke of Hampstead, L.
Corbett of Castle Vale, L.
Crawley, B.
Davies of Oldham, L. [Teller]
Dean of Thornton-le-Fylde, B.
Desai, L.
Drayson, L.
Elder, L.
Evans of Temple Guiting, L.
Falconer of Thoroton, L. (Lord Chancellor)
Farrington of Ribbleton, B.
Faulkner of Worcester, L.
Filkin, L.
Gale, B.
Giddens, L.
Gilbert, L.
Golding, B.
Goldsmith, L.
Goudie, B.
Gould of Brookwood, L.
Gould of Potternewton, B.
Graham of Edmonton, L.
Greengross, B.
Grocott, L. [Teller]
Harris of Haringey, L.
Hart of Chilton, L.
Haskel, L.
Haworth, L.
Henig, B.
Hollis of Heigham, B.
Howells of St. Davids, B.
Hoyle, L.
Hughes of Woodside, L.
Hunt of Chesterton, L.
Hunt of Kings Heath, L.
Jones, L.
Layard, L.
Leitch, L.
Lipsey, L.
Listowel, E.
Lockwood, B.
McDonagh, B.
Macdonald of Tradeston, L.
McIntosh of Haringey, L.
McIntosh of Hudnall, B.
MacKenzie of Culkein, L.
McKenzie of Luton, L.
Massey of Darwen, B.
Maxton, L.
Mitchell, L.
Morgan of Drefelin, B.
Morgan of Huyton, B.
Morris of Aberavon, L.
Plant of Highfield, L.
Ponsonby of Shulbrede, L.
Radice, L.
Ramsay of Cartvale, B.
Rendell of Babergh, B.
Richard, L.
Rooker, L.
Rosser, L.
Rowlands, L.
Royall of Blaisdon, B.
Sainsbury of Turville, L.
Sawyer, L.
Scotland of Asthal, B.
Sewel, L.
Simon, V.
Stone of Blackheath, L.
Symons of Vernham Dean, B.
Thomas of Macclesfield, L.
Thornton, B.
Tomlinson, L.
Triesman, L.
Truscott, L.
Tunnicliffe, L.
Turnberg, L.
Wall of New Barnet, B.
Warner, L.
Whitaker, B.
Whitty, L.
Williams of Elvel, L.
Winston, L.
Young of Norwood Green, L.


Resolved in the affirmative, and amendment agreed to accordingly.


 
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Motion, as amended, agreed to.
 
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