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There are already two departments: the Home Office and the Department for Constitutional Affairs under the leadership of the noble and learned Lord the Lord Chancellor. One clear plus to come out of this rearrangement, as I understand it, is that responsibility for the rules of criminal evidence will now pass to the Lord Chancellor. He already has responsibility for the rules of civil evidence. I believe that is an absolutely vital change. It is simply not satisfactory that the department that defines new criminal offences should also be responsible for the way in which the accused are tried. One has only to consider how hard successive Home Secretaries have tried to undermine, for example, the constitutional principles of habeas corpus and jury trial in the context of terrorism offences. I hope that the noble and learned Lord will assure us that, in future, all matters of criminal evidence in relation to any new offences designated by the Home Office will be matters for the noble and learned Lord and not for the Home Secretary. It is vital that the protection of the accused in the courts has nothing whatever to do with the Home Office.

On the other hand, I am extremely concerned about the amalgamation of prisons with the exercise of criminal justice. That is because, as I understand it, the new Secretary of State for justice will be responsible for, or continue to be responsible for, sentencing matters. There must clearly be a concern among your Lordships about those two responsibilities being managed by the same individual; because if insufficient money were provided to build new prisons, there would be an enormous temptation for that to affect the Secretary of State’s attitude to sentencing. The less money there is for new prisons and the less secure prisons are, the more likely the Secretary of State is to change sentencing policy so that fewer people are sent to prison. In my submission, that is a serious conflict of interest and I, for one, will need a great deal of persuading before I think it is a good idea to combine prisons with criminal justice.

1.25 pm

Lord Maclennan of Rogart: My Lords, the circumstances that have led to this important decision to split the functions of the long-standing Home Office should not be allowed in any way to diminish either its importance or the public recognition of the virtues of the establishment of a Ministry of Justice. For 25 years, we on these Benches have advocated the

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principle that appears to lie behind the Government’s announcement today of the transfer of certain important departments, particularly concerned with the criminal justice system—the National Offender Management Service, the Prison Service and the National Probation Service—to the new ministry.

It might have been preferable to enable some parliamentary discussion to take place about the decisions before they were announced by the Prime Minister in a written communication to Parliament. It does not make sense for arrangements that have lasted for many decades to be wound up on such a say so, without input and contributions examining the costs, virtues and possible disadvantages of precisely what is proposed. It remains to be seen whether the new Ministry of Justice, unshackled by some of the considerations that have rendered the Home Office ineffective and too often a department that has set its face against reform, will be more enlightened in its conduct of criminal justice and, for that matter, civil justice matters.

On the provisions that have been announced affecting security and counterterrorism, many questions remain to be answered, as in some respects the Statement is internally contradictory. On the one hand, the Prime Minister indicates that he is strengthening the role of the Home Secretary but, on the other, the Home Secretary says that the changes do not alter the responsibilities of the Foreign or Defence Secretaries, the Secretary of State for Communities and Local Government or other Ministers. Those two statements do not lie nicely with each other. Furthermore, we have been advised that a system of Cabinet committees dealing with security and counterterrorism matters—the COBRA arrangements in the Cabinet Office and the JTAC arrangements in respect of intelligence—is working well. We have not been led to believe that reshuffling Cabinet committees would be crucial to the effective protection of this country against the perceived threats of terrorism. It is only fair to recognise that Cabinet committees frequently come and go without public indication of the process. I doubt whether such restructuring amounts to very much. I hope that there will be an opportunity fully to consider both aspects of the changes at an early date and well before they are implemented on 9 May.

The detail is referred to in some but not all of the papers. To illustrate the attraction of eliciting more information, there is reference to the establishment of a research information and communications unit in support of the struggle for ideas and values. That might be seen by some as a new propaganda agency within the Government. There are many uncertain issues that merit elucidation, which clearly cannot be done through exchanges across the Floor in response to a Statement.

I conclude, as I began, by welcoming very strongly the establishment of a Ministry of Justice—that reform is long overdue in this country.

1.31 pm

Lord Falconer of Thoroton: My Lords, I am grateful to the noble Lord for his welcome of what is, as I said in my Statement, a very important and, I believe, correct change in the machinery of government. I

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apologise to the noble Lords, Lord Kingsland and Lord Maclennan, for the fact that they did not have copies of the Statement much before it was delivered. That is entirely my responsibility and I apologise.

Both noble Lords asked whether it was satisfactory to deal with machinery of government changes in this way. Traditionally, such changes are always announced at the time that they come into effect. The reason for that is that it has traditionally always been thought that you cannot announce such a change too long in advance because you in effect put a great blight over the relevant parts of government. In principle, that is right. In those circumstances, this course is in line with the way in which that is normally done. I have two further points. First, the counterterrorism changes come into effect immediately and the Ministry of Justice will begin on 9 May—after a short pause. I should say that that short pause is not for the purposes of debate; it is in order to make the necessary arrangements—this is quite a substantial change. The numbers of people in the new department, for example, will go up from about 28,000 in the DCA to about 90,000 in the new department. One needs a bit of time in which to do that.

The noble Lord, Lord Kingsland, said that the birth pangs of the change came in relation to foreign national prisoners issues of January of this year; that is not correct. It was made clear in another place that the counter-terrorism changes are a result of the review conducted by the Home Secretary during the autumn and towards the end of last year.

I was asked about what to do with the Home Office. My right honourable friend made it clear that there are significant difficulties in relation to the Home Office. This is a significant and sensible way of dividing up the work that it currently does. I believe very strongly that it is the right division of work; it relates to criminal law, criminal evidence, sentencing, prisons, probation and courts, all of which have obvious synergies together. The outcome of that will be much better results in relation to, for example, reducing reoffending and ensuring that there is proper public protection because the courts, prison and probation services will be much closer. In relation to the bigger picture, there will be a significant justice ministry in Whitehall that is able to discuss with the Home Office a whole range of issues and together they will produce results that are best for the public. I strongly commend the changes to the House. Before I sit down, the noble Lord wishes to intervene.

Lord Kingsland: My Lords, I apologise for intervening on the noble and learned Lord. I am most grateful to him for giving way.

So that your Lordships’ House can be absolutely clear, does that mean that in future all legislation on counterterrorism will originate in the new Ministry of Justice and will be brought to the House by the noble and learned Lord? He said that the new Ministry of Justice will be responsible for all criminal law and evidence. In my view, what flows from that statement is that the noble and learned Lord will be responsible in future for counterterrorism legislation.

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Lord Falconer of Thoroton: My Lords, terrorism remains the responsibility of the Home Office. As with every department, where one of the ways to combat a problem is by creating a criminal offence, that department remains responsible for it—that is the case with terrorism. If a new criminal offence is to be created, that must be discussed with the Ministry of Justice. It is unquestionably the Home Office that is responsible for terrorism.

I was asked what the effects of the changes would be—that question was implicit in the comments of the noble Lord, Lord Maclennan. There are two changes in relation to counterterrorism: the establishment of a new ministerial committee on security and terrorism, subsuming the current defence and overseas policy sub-committee, and the counter-radicalisation aspects of the Domestic Affairs Committee. The Prime Minister will chair the committee with the Home Secretary normally acting as deputy chair, although other Ministers, such as the Foreign Secretary and the Secretary of State for Communities and Local Government will deputise as appropriate. In addition, in order to support the Home Secretary in his new role, an office for security and counter-terrorism that is based in the Home Office and which reports to the Home Secretary will be created. The Office for Security and Counter-terrorism will take on overall responsibility for the CONTEST strategy, reporting through the new ministerial committee.

1.36 pm

Lord Lester of Herne Hill: My Lords, I shall briefly explain why, when I worked in the Home Office about 30 years ago, I formed the view that such proposals were necessary. First, when I was a civil lawyer in the Home Office, I came to realise that the Home Office was very good at the things that it knew about but very bad at dealing with the civil law. There was an institutional schizophrenia within the department. I therefore strongly believe that placing the whole of our law—statute and common law or civil and criminal law—in one department with responsibility for the state of the law is a great step forward.

Secondly, I believe that placing responsibility for human rights, the rule of law, the separation of powers between the Executive and legislature, on the one hand, and the courts on the other, is extremely important. Thirdly, I believe that these changes will secure a proper balance between the important interests of liberty on the one hand and of security on the other in two different departments, which will be well focused on those two vital interests and on the need to secure a fair balance between them.

I say very briefly that those who think that the problems that I saw in the mid-1970s no longer exist should reflect on, for example, what happened in the Equality Bill, when the Home Office introduced religious discrimination provisions that caused a great deal of difficulty. It was not really its departmental expertise. The same, I believe, was true with race hate crimes, but that is another matter.

I now wish that the Department for Constitutional Affairs could be responsible for equality as well as for other human rights. I wish that the department could be given that lead responsibility.

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Finally, I ask the noble and learned Lord the Lord Chancellor whether responsibility for the important new Commission for Equality and Human Rights could be placed under the Ministry of Justice, which is where it should be, rather than being perhaps balkanised across other departments with no single department having lead responsibility. If he cannot answer that today, I should be grateful if thought could be given to it. For my part, I regard it as essential that the responsibility for human rights should go with responsibility for that commission. I therefore unhesitatingly welcome the proposals. I regard this as a very significant step forward.

Lord Falconer of Thoroton: My Lords, I am grateful to the noble Lord for his welcome. The equalities commission is the responsibility of the Department for Communities and Local Government and there are no plans to change that.

Lord Howe of Aberavon: My Lords, the very scale of the transformation taking place—the noble and learned Lord described it as “an important milestone” and the noble Lord, Lord Lester, acknowledged the history behind it—leaves me disturbed despite the Statement by the noble and learned Lord that it is always done this way. I am disturbed, and the whole House must be disturbed, by the announcement of such far-reaching changes on the last day before Recess in a Written Statement to the other place. It is also rather curious that the change takes effect on what is said to be the eave of the recession of the Prime Minister. One wonders whether the haste is not to some extent due to the fact that the Prime Minister—who I suspect is scarcely demob happy, but who may be legacy lustful—is anxious to secure such things at a pace that would not commend itself more widely.

Having said that, I welcome the recognition that responsibility and accountability for GCHQ and MI6 rightly remain with the Foreign Office, regardless of the personality of the Secretary of State for the time being, because they are intimately and closely associated with each other and should remain so.

Whether or not he likes it, the noble and learned Lord must find himself obliged to become a glutton for punishment. The speed with which his original status as Lord Chancellor was transformed must have astonished him as much as the rest of us. The scale of the task that he is now taking on, which the Home Secretary is glad to be diminishing, must also be startling. I must express my anxiety that this is yet another example of the reckless tide of institutional upheaval that is characteristic of this Government, whether in respect of the licensing laws, the gambling laws or any institution anyone cares to mention. Can I tempt the noble and learned Lord to join me in constructing a brief platform on which we might campaign together to persuade leaders of all parties? It consists of just six words, which I have long and frequently commended. They are: “For God’s sake, leave us alone”. They would evoke enthusiasm in almost every institution, whether school, hospital, corporate organisation or even the legislature. I urge the noble and learned Lord to distil that and campaign with me for that very sensible good cause.

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Lord Falconer of Thoroton: My Lords, for the 10 years that I have been in the House of Lords, I have sought to find common cause, even on one issue, with the noble and learned Lord, but just when I think I am there, it slips through my fingers. I am sad that he is anxious about the changes. He is saying, “Stop change”. I believe that the changes in relation to counterterrorism are right. They have been made after detailed consideration during the second half of last year and in the light of experience with counterterrorism. They are necessary. I welcome the noble and learned Lord’s welcome of the fact that GCHQ and MI6 remain the responsibility of the Foreign Secretary, which I believe is the right conclusion.

As I have indicated, I think that bringing prisons, probation and criminal law and policy to the new Ministry of Justice is the right course to improve the justice system.

Lord Clinton-Davis: My Lords, while I welcome the gist of what my noble and learned friend the Lord Chancellor said, I think it is very unfortunate that we are contemplating making these changes today. A Statement should have been made earlier or later, but not now, when we cannot debate it.

Many of us have advocated exactly the formula that has been announced for the new Ministry of Justice. It is a good thing that it will be established, but why was it not done much earlier? After all, the Society of Labour Lawyers advocated it long ago. Why did we wait so long?

Lord Falconer of Thoroton: My Lords, the question of the timing has been raised by a number of noble Lords. As I said in answer to the noble Lord, Lord Maclennan, it is inevitable that machinery of government changes are announced as a fait accompli. What we are announcing today is consistent with that approach. We did not do this earlier but, as with so many reforms, I wish we had. We have done it now. We cannot do everything all at once, but we are doing it now. I apologise for doing it 10 years late.

Lord Ramsbotham: My Lords, I, too, welcome the formation of a Ministry of Justice. I have not been calling for that for as long as some other noble Lords, merely since my time as Chief Inspector of Prisons when I became aware that it was impossible for the Home Secretary to give due attention to what is needed because of all the other demands on him. That is looking back, but, looking forward, I welcome the change in hope. The National Offender Management Service was an opportunity to do tremendous things in the criminal justice system. It was not seized because it was rushed into without adequate consultation with all the people involved. The noble and learned Lord has now created another opportunity, and I hope that he will seize it and before merely implementing what he inherits and taking on the current situation, he will take the opportunity to have a real look at the way the criminal justice system is operated. I even hope that it is possible that the Offender Management Bill, which is to be introduced immediately after Recess, will be considered to see whether it is as relevant to the future as it was to the past under the Home Office.

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Lord Falconer of Thoroton: My Lords, I am grateful to the noble Lord for his support. I agree that this is a great opportunity, and it is one that we intend to take.

Lord Goodhart: My Lords, I join my noble friends in welcoming the creation of the Ministry of Justice, which is long overdue. It will bring criminal and civil justice together under the same roof, where they ought to have been long since. Is the noble and learned Lord worried about the possibility that taking over responsibility for prisons might turn out to be a poisoned chalice? I am concerned about the possibility that prisons might come to dominate the activities of the new Ministry of Justice because of the sheer weight of public interest in them. From what the noble and learned Lord said, it seems that the number of staff will be roughly trebled as a result of the merger. How large a proportion of the ministerial budget of the Ministry of Justice will go to the prison and probation services? Is the noble and learned Lord satisfied that the Ministry of Justice can operate without being dominated by the prison and probation services?

Lord Falconer of Thoroton: My Lords, I am grateful to the noble Lord for his support of the proposals. At the moment, the DCA’s budget, without any additions, is about £4 billion. After the change, we will have a budget of approximately £9 billion, which represents more than the current budget for prisons and probation and a much smaller amount for policy work. I am not worried that the prison and probations services will come to dominate because I believe that the synergy is right for them all. The point of the change is to bring them together in one place, not with one dominating another, but with them all working together. I quite understand why the noble Lord has raised his concern, but I believe that the change is manageable and is the right change.

Lord Armstrong of Ilminster: My Lords, like the noble Lord, Lord Lester, I speak from now rather remote past experience as a Permanent Secretary in the old Home Office. As a general comment, I simply remark that my experience was that machinery of government changes rarely make it easier to handle or resolve difficult and controversial issues of policy and certainly distract—in the short term at least—those involved in the upheavals that go forward. If these changes go ahead, I hope that those upheavals can be handled and diminished as much as possible.

In the Home Office we were already familiar with the contrast between what you might call the Ministry of the Interior aspects of Home Office duties and the Ministry of Justice responsibilities. One was dealing on the one hand with issues which on the whole tended to erode liberty—the protection and security issues—and on the other hand issues which were there to protect and preserve liberty—the Ministry of Justice issues. The two interests often conflict.

In the existing system, a conflict of interest in that regard has to be resolved by one man—the Secretary of State for the Home Department. Under the new arrangements, the conflict will not be resolved there. The Home Secretary will be pursuing with undeviating

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determination the responsibilities for security and terrorism—the Ministry of the Interior-type responsibilities—and no doubt the Secretary of State for Justice will be pursuing with equal vigour the issues of liberty and justice. Where there is a conflict, the issues will not be resolved by one departmental Minister. So far as I can make out from reading the Statement, they will come to one or other of a pair of committees to be chaired by the Prime Minister; and the conflict will eventually be resolved inside No. 10, adding yet more to the burdens on the Prime Minister of the day.

Does the noble and learned Lord the Lord Chancellor really think that it is worth making this upheaval in order to deprive the Home Secretary of this crucial responsibility for resolving issues where the effect on civil liberties can conflict?

Lord Falconer of Thoroton: My Lords, I believe very strongly that it is worth making the changes. The noble Lord is plainly right on his first point, that the machinery of government changes bring disruption with them and, to some extent, distraction. The decision any government have to make is whether that disruption and distraction are worth the medium and long-term benefits. I believe that, for reasons which have nothing to do with any wrongness in government, the circumstances which governments face change and governments have to change to meet those new circumstances.

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