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25 Oct 2007 : Column 1152

12.15 pm

On Question, Whether the said Motion (No. C1) shall be agreed to?

Their Lordships divided: Contents, 70; Not-Contents, 111.


Division No. 1


CONTENTS

Addington, L.
Allenby of Megiddo, V.
Ampthill, L.
Avebury, L.
Barker, B.
Bonham-Carter of Yarnbury, B.
Bradshaw, L.
Burnett, L.
Butler-Sloss, B.
Chorley, L.
Colwyn, L.
Elton, L.
Elystan-Morgan, L.
Erroll, E.
Falkland, V.
Falkner of Margravine, B.
Flowers, L.
Garden of Frognal, B.
Glasgow, E.
Goodhart, L.
Greaves, L.
Hamwee, B.
Harris of Richmond, B.
Howe of Idlicote, B.
Hylton, L.
Kirkwood of Kirkhope, L.
Lee of Trafford, L.
Lester of Herne Hill, L.
Livsey of Talgarth, L.
Lloyd of Berwick, L. [Teller]
Mackay of Clashfern, L.
Maclennan of Rogart, L.
McNally, L.
Maddock, B.
Masham of Ilton, B.
Miller of Chilthorne Domer, B.
Monson, L.
Montgomery of Alamein, V.
Neill of Bladen, L. [Teller]
Neuberger, B.
Newby, L.
Ramsbotham, L.
Razzall, L.
Redesdale, L.
Rees-Mogg, L.
Renton of Mount Harry, L.
Roberts of Llandudno, L.
Rodgers of Quarry Bank, L.
Roper, L.
Rowe-Beddoe, L.
Saltoun of Abernethy, Ly.
Sandberg, L.
Sandwich, E.
Scott of Needham Market, B.
Sharp of Guildford, B.
Shutt of Greetland, L.
Smith of Clifton, L.
Steel of Aikwood, L.
Stern, B.
Taverne, L.
Thomas of Gresford, L.
Thomas of Walliswood, B.
Thomas of Winchester, B.
Tope, L.
Tyler, L.
Wallace of Saltaire, L.
Walmsley, B.
Walpole, L.
Warnock, B.
Williams of Crosby, B.

NOT CONTENTS

Acton, L.
Adams of Craigielea, B.
Adonis, L.
Ahmed, L.
Alli, L.
Amos, B.
Anderson of Swansea, L.
Andrews, B.
Archer of Sandwell, L.
Ashton of Upholland, B. [Lord President.]
Bach, L.
Bassam of Brighton, L.
Billingham, B.
Bilston, L.
Boothroyd, B.
Borrie, L.
Boston of Faversham, L.
Bradley, L.
Brooke of Alverthorpe, L.
Brookman, L.
Campbell-Savours, L.
Christopher, L.
Clark of Windermere, L.
Clarke of Hampstead, L.
Clinton-Davis, L.
Cohen of Pimlico, B.
Crawley, B.
Cunningham of Felling, L.
Darzi of Denham, L.
Davidson of Glen Clova, L.
Davies of Coity, L.
Davies of Oldham, L. [Teller]
Dean of Thornton-le-Fylde, B.
Dixon, L.
Dubs, L.
Evans of Parkside, L.
Farrington of Ribbleton, B.
Faulkner of Worcester, L.
Fookes, B.
Foster of Bishop Auckland, L.
Gale, B.
Gavron, L.
Gibson of Market Rasen, B.
Golding, B.
Graham of Edmonton, L.
Griffiths of Burry Port, L.
Grocott, L. [Teller]
Harris of Haringey, L.
Hart of Chilton, L.
Haskel, L.
Hilton of Eggardon, B.


25 Oct 2007 : Column 1153

Hollis of Heigham, B.
Howarth of Newport, L.
Howells of St. Davids, B.
Hoyle, L.
Hughes of Woodside, L.
Hunt of Kings Heath, L.
Irvine of Lairg, L.
King of West Bromwich, L.
Leitch, L.
Lipsey, L.
Macdonald of Tradeston, L.
McIntosh of Hudnall, B.
McKenzie of Luton, L.
Massey of Darwen, B.
Maxton, L.
Morgan, L.
Morgan of Drefelin, B.
Morgan of Huyton, B.
Morris of Aberavon, L.
Morris of Manchester, L.
Murphy, B.
Pitkeathley, B.
Plant of Highfield, L.
Ponsonby of Shulbrede, L.
Powell of Bayswater, L.
Prosser, B.
Prys-Davies, L.
Quin, B.
Ramsay of Cartvale, B.
Rea, L.
Rendell of Babergh, B.
Richard, L.
Rix, L.
Rogan, L.
Rooker, L.
Rowlands, L.
Royall of Blaisdon, B.
Sawyer, L.
Scotland of Asthal, B.
Sewel, L.
Simon, V.
Soley, L.
Strabolgi, L.
Symons of Vernham Dean, B.
Taylor of Blackburn, L.
Taylor of Bolton, B.
Temple-Morris, L.
Tenby, V.
Thornton, B.
Triesman, L.
Truscott, L.
Tunnicliffe, L.
Turner of Camden, B.
Warner, L.
Wedderburn of Charlton, L.
West of Spithead, L.
Whitaker, B.
Whitty, L.
Wilkins, B.
Woolmer of Leeds, L.

Resolved in the negative, and Motion disagreed to accordingly.

On Question, Motion C agreed to.

Governance of Britain

12.26 pm

The Parliamentary Under-Secretary of State, Ministry of Justice (Lord Hunt of Kings Heath): My Lords, with the leave of the House, I shall repeat a Statement made by my right honourable friend the Secretary of State for Justice in another place. The Statement is as follows:

“Mr Speaker, with permission, I should like to make a Statement about our programme of constitutional renewal. With this Statement, three consultation documents are being published. The first, jointly by my right honourable friends the Foreign and Defence Secretaries and me, is on parliamentary approval for war powers and treaties; the second, by me, is on judicial appointments; and the third, by my right honourable friend the Home Secretary, is on protests in Parliament Square. Copies of the documents are available in the Vote Office and on my department’s website.“In his Statement to the House on 3 July to launch the Green Paper, The Governance of Britain, my right honourable friend the Prime Minister set out his vision of a renewed relationship between government and citizen. He identified 12 areas in which, “Two of the most important prerogative powers exercised by government are the power to deploy the Armed Forces overseas and the power to commit the nation to international legal obligations through the ratification of treaties.

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“I turn first to war powers. On 15 May, the Government supported a Motion in this House which declared that it was ‘inconceivable’ that the precedents set in 2002 and 2003, when the Government sought the approval of the House for military action in Iraq, would not be followed in the future. The same Motion called on the Government,on how this convention should be entrenched. Today’s consultation paper therefore explores a range of options, each aimed at formalising Parliament’s role. It suggests that this might be through a convention, through legislation, or by a combination of both.“The consultation paper discusses the critical issues that any system would have to accommodate. It is essential that any new arrangement should not damage morale, hinder us in meeting our international commitments, or inhibit operational flexibility. Nor should it place members of our Armed Forces under any legal liability as a result of any new arrangement. The Government welcome views on how these objectives can best be achieved and on related questions. What is the role of the House of Lords? How should we define ‘armed conflict’ and ‘armed forces’? What information ought to be supplied to Parliament and at what stage?“I turn now to the ratification of treaties. This is already subject to a parliamentary convention, introduced by the first Labour Government in 1924, known as the Ponsonby Rule. According to this and with certain exceptions, the Government must lay a treaty as a Command Paper before Parliament for a minimum of 21 sitting days prior to ratification. It is then for Parliament to determine which treaties it wishes to debate. The Government believe that there may be value in putting this convention on a statutory footing, to establish Parliament’s right to decide and to show that the actions of the Government are subject to the will of the people’s representatives.“The paper seeks views on how this can best be done, including on the detailed and important questions of how exceptions to the existing convention, such as bilateral double taxation agreements, should be dealt with; how a debate and vote on a treaty should be triggered; and how the 21-day period could be extended in special circumstances.“As Lord Chancellor, I am responsible for upholding and defending the independence of the judiciary, which is essential to the functioning of any free and democratic society. Our system of appointing judges must be, as I believe it is, wholly devoid of party politics. It must be transparent, accountable and capable of inspiring public confidence. Under the Constitutional Reform Act 2005, with the establishment of the Lord Chief Justice as the head of the judiciary, we have already made many significant reforms to the way in which judges are appointed in England and Wales. The most fundamental was the creation of an

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independent Judicial Appointments Commission. The consultation paper published today outlines possible options for additional reform, on which the Government would welcome views.“The final consultation document published today concerns protest in Parliament Square. The framework in the Serious Organised Crime and Police Act 2005 in respect of protests raised concerns from campaigners, other citizens and, separately, from Members of this House. We need to listen to those concerns and review the provisions to see whether there is a better way to uphold the right to protest and manage individual protest appropriately. “Holding the Government to account for the way they spend public money is one of the most important functions of this House. I and my colleagues pay tribute to the work of the National Audit Office in supporting Parliament in this task. So the House will be pleased to know that, following a joint request from the Father of the House and the opposition chairman of the Public Accounts Committee, space will be made available in the constitutional reform Bill for any agreed changes to the governance of the National Audit Office emerging from the review that it has announced.“It is right to consider the circumstances in which we open up more information for debate before this House. Even in the most sensitive sphere, national security, where everyone agrees that some safeguards have to be in place to respect confidentiality, we should always consider where we can do more. Starting next month, the Government will publish annually, for parliamentary debate and public scrutiny, our national security strategy, setting out for the British people the threats that we face and the objectives that we pursue. Additionally, new rules will govern a more open approach to the working of the Intelligence and Security Committee. My right honourable friend the Prime Minister has agreed with the chair of that committee that Parliament should have a clear role in the appointment of its members.“In keeping with this Government’s commitment to ensure that the public can access the information that they need, my right honourable friend the Prime Minister will be making a speech later today announcing that we will not tighten the charging arrangements for freedom of information requests. A consultation on whether to extend the Freedom of Information Act to a range of organisations that perform public functions and a review of the 30-year rule will be established.“These days huge amounts of personal data are held by the public and private sectors. My right honourable friend the Prime Minister and I have asked the Information Commissioner, Richard Thomas, and Dr Mark Walport, director of the Wellcome Trust, to review the way we share and protect personal information in the public and private sectors.

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“The freedom of the media to investigate and report is a key issue in the use of information. We consulted last year on restricting media access to the coroners’ courts and I can now confirm that we will not be limiting access. Proposals to ban media payments to criminals have been under consideration for some time. None of us wants to see criminals profiting from publishing books about their crimes and, while ensuring that the freedom of the press to investigate and report is maintained, we will make sure that criminals cannot benefit in that way.“As provisions in the Criminal Justice and Immigration Bill make clear, we are also concerned about the misuse of personal data. However, the new rules raise concern that they could impede legitimate investigative journalism, so the Information Commissioner, in consultation with the Press Complaints Commission, will produce clear guidance to ensure that that is not impeded.“There is often a lack of clarity in the balance between an individual’s freedom and the role of the state. My right honourable friend the Home Secretary has been examining this issue in relation to existing police powers of entry, to consider whether there should be a single readily understandable code. The Home Secretary will widen the review in scope to include all powers of entry held by public authorities. The Home Secretary will also lead a consultative review considering whether improved guidance is needed for police officers in the exercise of Section 44 of the Terrorism Act 2000, ensuring that trust is preserved in the use of those powers.“These consultation documents and these other measures are all in part concerned with the right to freedom of expression and its facilitation. It is a right specifically protected by the Human Rights Act, but it has existed in the UK for a very long time. Because of its fundamental importance in our democracy, I shall be considering how, as all future legislation is developed, it can be carefully audited for any explicit or unforeseen restriction that it might unnecessarily place on freedom of expression.“These are important questions that go to the heart of the issue of where power should lie in our country and how it should be exercised. We now look forward to hearing the views of parliamentarians and citizens on how this can best be achieved in these vitally important areas”.

My Lords, that concludes the statement.

12.35 pm

Lord Kingsland: My Lords, I find myself in some difficulty in responding to the Statement. At about 11.40 am, while I was engaged in the debate on the Legal Services Bill, I was handed three documents, which, as I understand it, form the basis of the ministerial Statement. It is simply not possible to respond to substantial parts of the Statement without reading the documents first. I shall give the Minister one example. He suggested that the Government might be looking further at the issue of judicial independence and, at the end of the paragraph dealing with that matter, he stated:



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However, since I have not the faintest idea what those options are, it is not possible for me to respond in any constructive sense. Indeed, I find myself, being in total ignorance of the contents of these documents, at a loss to know how I should respond. Nevertheless, of course, I shall.

Noble Lords: Ha!

Lord Kingsland: Not for the first time, I shall talk about something that I know absolutely nothing about, my Lords.

The first issue that the Minister addressed was the decision-making power of Parliament to approve a declaration of war. The Statement rightly said that there was a long and constructive debate in your Lordships’ House last May on this topic.

The difficulty that all Governments surely face on this issue is that they cannot be fully frank with Parliament. There is a whole range of intelligence information that is crucial to the decision whether or not to go to war that simply cannot be made public. Parliament will always be making a decision on trust. The issue about war-making decisions, therefore, is not actually Parliament’s vote, although that is now a crucial component, but rather the confidence that Parliament can repose in the recommendation of the Government to go to war. That in turn depends on Parliament’s confidence in the main actors in that decision: the Chiefs of Staff, the intelligence services and those ministries that have been involved in the build-up—in particular, the Ministry of Defence and the Foreign Office.

Those of your Lordships who have read the Hutton and Butler reports on the events leading up to the Iraq war will recall that many sharp criticisms were made of the process by which the Government took advice from all these agencies before making their final decision. I think that the expression used by the noble Lord, Lord Butler encapsulated that process: “sofa government”. It was quite plain that many of those important institutions were not consulted in a full and objective way. What we need to hear from the Government in future is not so much the claim that they will consult Parliament; we need to be sure, before we can make a proper decision, that the Government have consulted all those agencies properly and that the Statement on this issue to Parliament reflects their view.

On treaties, I am most unimpressed with what the Minister said about the Government’s intentions. The crucial thing about treaties is not the ratification but the signing process. What Parliament needs is an opportunity to engage with the Government about the process of negotiating before a treaty is signed. A classic example of this was the signing by Mr David Blunkett, then Home Secretary—in secret in the United States, without even telling his Minister of State—of a treaty on extradition that gave away the individual rights of citizens in this country. That was

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a particularly disgraceful thing to do when individual constitutional rights were involved. What your Lordships’ House ought to want to know is not what the Government are going to do about ratification but how they will engage Parliament in the process leading up to signature. Once a Government sign a treaty there is absolutely nothing that anybody can do about its contents; they are binding on the state under international law. So the Government have a great deal more thinking to do on the question of signing treaties.

As I said at the beginning, I have not the faintest idea what the Government are going to say about judicial appointments. It was only two years ago that the Government declared themselves completely satisfied with what they had put in the Constitutional Reform Act. They removed the responsibility for selecting judges from the Lord Chancellor, accountable to Parliament, to an entirely independent judicial appointments committee. I think that there were some merits in that, up to a point: the committee presents its conclusions to the Lord Chancellor, but the Lord Chancellor has almost no room for manoeuvre about whom he or she ultimately appoints.

Have we gone too far in the other direction? Do we have enough parliamentary accountability in making judicial appointments? In the United States, they have for senior judicial appointments an advise and consent procedure with the Senate. I have not yet met a Supreme Court judge who has not said that he values that process, because it in some way legitimises the enormously powerful role that he has under the American constitution.

As a result of the Human Rights Act and other measures in legislation—and particularly because of the weakness of the House of Commons in controlling the Government—judges are being more and more drawn, ineluctably, into political decision-making. They are certainly perceived as being drawn in more and more. If they are to be drawn into political decision-making through their decisions, surely there must be a case for giving their appointment parliamentary legitimacy. Do the Government in this document—which I have not yet read—propose that, or are they on an entirely different tack, which is nothing whatever to do with what I have just said? I do not know.

I was interested in the Minister’s remarks on national security. This is a matter of great complexity and delicacy. I would like to know more about the proposals before I give an off-the-cuff response—and likewise on the question of media. There is simply not enough content here yet for me to make a sensible observation.

In closing, I was not surprised, although I was disturbed, to see that the Government intend to institute a programme of constitutional renewal. That sounds extraordinarily radical, and I invite the Minister to say a little more about it. No constitution is perfect; but, when one looks back on the past 300 years, I respectfully suggest that ours has done rather well if one compares it with almost everybody else’s. Ours has been endorsed by every single generation since 1688 and, on the whole, not found wanting. So

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why does this generation and why do this Government suddenly decide that the constitution needs renewal? I suggest that they should look much more carefully at why we have the constitution that we have before embarking on yet another round of radical change.

12.44 pm

Lord Tyler: My Lords, I have had just a few more minutes than the noble Lord, Lord Kingsland, to examine the Statement and the consultation documents. This is as much as anything a restatement in a number of important directions but, nevertheless, my noble friends and I welcome it.

To deal with easy matters first, we very warmly welcome the decision to review the rights of democratic protest. We always thought that it was ridiculous to include in the Serious Organised Crime and Police Act 2005 an attempt to try to control the rather messy experiences that we witness daily in the middle of Parliament Square. It was not an appropriate vehicle for dealing with the very proper right of the British citizen to protest in public and close to where we hope these decisions will still be made—in the Palace of Westminster.

We must examine the issue of judicial appointments with extreme care, for the reasons that the noble Lord, Lord Kingsland, has already advanced, because in our constitution we have a rather ineffective separation of powers. The noble Lord himself has probably gone all over the world advising new democracies on the necessity of keeping separate the judiciary from the legislature and Executive. Until quite recently we had here on the Woolsack someone who was a member of the Cabinet and therefore a part of the Executive, a member of the legislature as a Member of this House, but also the supreme head of the judiciary. That was quite extraordinary. So whatever methods we are going to adopt, we shall have to look at extremely carefully.

With any sort of confirmatory hearings, surely the real confirmatory hearings should be for those responsible to Parliament. New Secretaries of State should surely come before either Joint Committees or Select Committees of the other House.

As the Statement has made clear, there are 12 areas in which the royal prerogative could be re-examined—and only a few are dealt with in the process in front of us today. There is no reference to the dissolution of Parliament, which may in the light of recent events be rather more significant and urgent than the issues that are in the Statement. It would be extraordinary if the Government so lost their majority in the Commons that they could not carry the day on that issue—and, if they can carry the day, the only effect in terms of real change to the balance of power in this country would be a further restriction on the monarch, who in certain circumstances can potentially still have a view on that matter.

On the war-making powers and treaty ratification, we look forward to hearing the Government’s proposals for your Lordships' House. We believe that in both cases there is a role for us in this place, as well as the other place; but we are very strongly in favour of

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placing the issue of treaty ratification on a statutory basis. We do not believe that an informal convention is sufficient.

In the Statement there is also a welcome change in the Government’s attitude on the issue of requests for freedom of information. We very warmly welcome the decision to review that; we thought that it was anti-democratic that the charging regime should have been ratcheted up on the basis of previous proposals. We also welcome the decision to look again at how the resources of the National Audit Office could be made available to both Houses.


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