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In 2007, it is already apparent that the swing away from Labour in the marginal seats is greater than in the country at large. The noble Lord, Lord Ashcroft, explained in a recent article in the Daily Telegraph how he intends to upgrade his vote purchase programme. Hence, when the Prime Minister summons up the courage to call an election, if that investment pays off, there easily could be an even more distorted result than we have become accustomed to. Imagine the public reaction and further disengagement if one party clearly wins the popular vote, and is clearly first past the post, but another forms a new Government with a clear majority of MPs. The system will have failed even on its own terms. With 500 seats left devoid of any real campaigning, the turnout may well drop below 60 per cent, since electors in those areas will recognise the futility of their choice. What a swindle! That would make Parliament truly illegitimate. Indeed, this House would look rather more legitimate than the other.

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In his Hugo Young Memorial Lecture in December 2005, Gordon Brown said,

He spoke about liberty for all, responsibility by all and fairness to all, but what about democracy for all? What, indeed, about no taxation without fair representation? Surely, it is a basic human right in a parliamentary democracy to be treated as an equally valued citizen.

At the moment, as a perceptive article in the Independent pointed out a few days ago,

And they may not even be British taxpayers. Hence the obsession with the inheritance tax of millionaires rather than the council tax of pensioners. The Prime Minister and his Government should not play infantile word games with the constitution, citizenship or even “Britishness” and ignore the elephantine electoral distortion dominating public disenchantment. Today’s obsession with a British motto is, by contrast, a constitutional mouse.

All the fine words of the gracious Speech will be meaningless unless Ministers face up to the twin and closely related flaws of the first past the post electoral system and the arms race of party donations and spending. Any representative system that gave real choice to the whole British electorate would require the parties to campaign for every vote everywhere. That is how the French achieved the remarkable 86 per cent turnout in their presidential election. A change would also kill stone dead any attempt to buy an election by pouring money into selected marginals.

We Liberal Democrats believe that the growing consensus that developed the Hayden Phillips cross-party discussions on party funding should have been built upon, not demolished. In the wake of the “loans for Lords” scandal, all Members of your Lordships’ House have a direct interest in cleaning up this mess. The reliance on a small number of very rich individuals has done huge damage to our body politic as a whole, but especially to the reputation of this House. Obviously, each party will have to compromise to achieve agreement. I note, for example, that the noble Lord, Lord Levy, has endorsed the proposed £50,000 annual limit on individual donations. The Labour Party may have to accept that, if the trade unions are to be treated as collecting agents, their members must be given a double choice—which party they wish to assist as well as whether to contribute to a political levy at all.

It is the Conservative Party that has thrown all the toys out of the pram. Why the sudden U-turn? As recently as 15 March, Theresa May, welcoming the thrust of the Phillips recommendations on behalf of the Conservatives, told the Commons,

How has the Ashcroft tendency turned the official Tory policy upside down? If legislation on this issue is to be put before Parliament, we must hope, for the sake of the integrity of our political system, that all the parties will be prepared to take the Phillips proposals as the starting point for meaningful reforms.

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We believe that the planned cap of £150 million over a full parliamentary term, for national and constituency campaigning, was realistic, together with strict caps on individual donations. All parties in this House should surely agree that such a reform is essential to ensure that individual wealthy donors are unable either to exert disproportionate influence over parties’ policies or to buy elections.

We are honour bound to believe that the gracious Speech means what it says. Will the proposed constitutional renewal Bill, taken with the proposals for

adopt a radical approach to the patent inadequacies of our current democracy? In her speech last week, the Lord President and Leader of your Lordships’ House identified,

as a key objective for this legislative year. If that is not to prove to be meaningless waffle, the Government must address the fact that our whole electoral system is no longer fit for purpose in the 21st century and the financial support which underpins it risks corrupting it still further.

7.54 pm

The Earl of Onslow: My Lords, we all know why the Liberal party wants proportional representation. It is to get influence way in excess of the number of votes it receives. On unfair votes in the last election, it is worth recording that the Tory party received more votes than the Labour Party in England but got considerably fewer seats. There is certainly an element of disproportionality and errors by the Electoral Commission.

I apologise sincerely for not being here for a large percentage of the debate, but I am a member of the Joint Committee on Human Rights. We met this afternoon and one cannot be in two places at once. I thought it important to attend that meeting.

The last time that an officer of such a senior rank adorned the Government Front Bench was Field Marshal Lord Alexander of Tunis. I was privileged enough to be brought here by my father and sat on the steps of the Throne when I was aged 14. The Liberal tsar was Lord Samuel. Lord Stansgate was making the most frightful noise about the fact that we were cheating over the number of our troops in the canal zone. Churchill sat next door to me on the steps of the Throne and asked me what the time was. My watch had stopped, so all that I could say was, “I am very sorry, sir, my watch has stopped”. In my life, those were the only words that I addressed to the great man.

I do not think that any of your Lordships will know of Ernest Adamson or Theodore Zissu. They are the first and last names on the West Clandon village war memorial at which I was present when a wreath was laid yesterday. What did they fight for? They fought for us to be free, for our institutions of a parliamentary democracy, for liberty of the subject and for the freedom of England, Scotland, Wales and Ireland. What they did not fight for were identity cards, a civil

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contingency Bill or the arrest of a woman for reading in front of the Cenotaph the names of people who fell. They did not die for the erosion of the right of trial by jury, for reducing the ban on double jeopardy, for imprisonment without trial for something that was not a criminal offence or for collecting DNA on children and a large percentage of the immigrant population. They did not die for detention without trial for long periods.

That issue is the most important we face. We cannot hold our heads up as a democracy, as a country of free people, and claim to set an example to others in this world if we lock people up on the whim of the police that it might be a good idea—even if they cannot think of a real reason to do so. There is no need for this. Not only do I say that, but it is the view of Peter Clarke, the deputy assistant commissioner in charge of terrorism. When we saw him the other day, he said, in direct contradiction of last week’s speech by the head of MI5, that the terrorist threat was no worse than it had been when the 28-day detention rule was introduced. This confirmed what Mr McNulty, the Minister, said in July.

So far as I can gather, there is absolutely no evidence of the need to extend the 28-day detention period, and it is hard to exaggerate what a dismal example it would show to others in the world. It is the behaviour of General Musharraf and of most of the grubbier regimes on this earth; it is the sort of behaviour that is happening in Guantanamo Bay. Your Lordships have a good reputation for defending civil liberties in this Parliament—far better than another place. If the measure gets through the Commons, I hope that we will be strong enough to vote solidly against it, because it is wrong and unnecessary and because no more than 28 days has ever been needed.

It is essential—this must be said time and again—that we in this House act on our honour. That is why we are all here. We are not here by popular election; we are here by accident. I concede that I am a constitutional anachronism—I even enjoy being a constitutional anachronism—but I am here on my honour, as is every other Member of your Lordships’ House. I suggest that that honour means that we do not allow an extension to 56 days’ detention, or whatever Ms Smith, who cannot make up her mind, finally decides is necessary. If anything, we should be attempting to reduce it.

8.02 pm

Baroness O'Neill of Bengarve: My Lords, the gracious Speech sets out a pretty strenuous programme of legislation to be brought before Parliament, and there is in the air a hope that this may point to some new constitutional settlement. I am not sure that I entirely share that hope, and that is not just because of the sort of constitutional settlement indicated. In the event, the programme of legislation that we face may not be quite as strenuous as some others that we have faced in recent years, but, reading the Speech and other materials, no one would deny that there will be a great deal to be done. As we embark on this work, and in particular on the Bills of constitutional importance, it seems to me that we should ask ourselves how good the legislation

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of all sorts that we enact is likely to prove. Nowhere is this more important than in legislation that has, or may have, constitutional importance.

I do not think I am alone in worrying about the quality of some of the legislation enacted by Parliament. I have heard that anxiety surface in many speeches by noble Lords this afternoon. I think that we worry particularly, and rightly, in the areas of anti-terrorism, citizenship and social cohesion, but I do not wish to point the finger specifically at government, at certain departments of government or at parliamentary draftsmen, and I do not wish to question the energy and care which is brought to bear in testing and amending specific legislative proposals, especially in your Lordships’ House. My concerns are more general but I think that they are also rather more worrying.

Perhaps I may begin with a very brief reminder of John Locke’s profound comment on the purpose of government in his Second Treatise of Government, published first in 1690. This work is as close as any to a founding document of our modern constitutional tradition. It is often supposed that we have assimilated the lessons that Locke provided for us but that we have gone far beyond him with our more extensive respect for human rights and our greater concern for democracy. However, I think that there are many signs that, in a rush to improvement, we may be losing sight of fundamental matters.

Without government, Locke argued, we find ourselves in a state of nature and,

The most serious lack, he argues, is that:

But do we now provide our fellow citizens with settled, known laws? Settled they may be—at least until the next bout of legislative fervour and at least in so far as legislation that is open to further interpretation in the courts can be settled—but are they known? I have an increasingly uneasy feeling that they are not and, indeed, that all too often they cannot be known by all but a handful. I remember that when the noble Lord, Lord Phillips of Sudbury, decided that he had done all that he could in your Lordships’ House—he is much missed, far beyond the Liberal Democrat Benches—he cited among his reasons for desisting his view that Parliament was no longer serving citizens well. He pointed out the 15,000 pages of new legislation of the previous year and the thousands of new criminal offences of the past decade. Legislation on this scale and at this speed does not and cannot produce settled, known laws.

Those of us who have worked in the institutions beyond Whitehall—whether in companies or charities, in local government or the professions, in universities or schools, or in the great range of non-departmental public bodies—know that this churning tide of new legislation far exceeds what is knowable and that it has raised the costs and burdens of institutional life colossally. We have disempowered those who carry institutional tasks by enacting prolix legislation that they cannot

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know—perhaps cannot even understand if they consult it—and thereby we require them to consult lawyers with increasing frequency and at increasing expense, and we fuel defensive practice by all these institutions. We may not have secret laws—that was of course John Locke’s worry—but increasingly we have unknowable and unknown laws.

I think we can all agree that some legalisation has to be complex. However, I believe there is a range of questions which we should ask ourselves, and which I hope Ministers may also ask themselves, as we embark on a new Session of legislation. Among those questions I would include the following. Are we legislating too much and too fast? What tests are we now using to establish whether new legislation is needed at all? Again and again this afternoon, noble Lords have pointed to existing legislation which could have served the purpose but which is assumed to be redundant. If new legislation is needed, can we be sure that it will be better than existing legislation? I look with some nervousness towards a Human Fertilisation and Embryology Act reform because the 1990 Act was well drafted and good legislation. Will what comes before us be as good? Why do we not more often enact consolidated legislation? Why do we legislate without evidence of the costs of new legislation for those who have to comply with it? They often dwarf the costs to the public purse, about which we are told.

In response to these questions, the Government may point to their extensive practices of consultation. I am not consoled. Current practices of consultation may not be much evidence of genuine responsiveness to public concerns. All too often, the questions asked appear to have been drafted by persons rather unfamiliar with the activities that the legislation will affect, and they often include closed questions that preclude reflective or critical responses. Consultation done to unrealistic timetables prevents responses being reflected in the drafting of legislation, and I fear that that is all too frequent. So, in the end, consultation may nurture cynicism, as those who are asked to consult realise that it is time-consuming for them and that it is only window-dressing which is not likely to lead to better legislation.

I hope that these are only some of the issues that we will consider as we embark on a range of constitutionally significant Bills. In the main, Government propose legislation but Parliament can dispose, as the noble Earl has just reminded us. I hope that we can do so with vigour and that noble Lords on all sides of the House will press to know more about the need for, and the purposes and costs of, hyper-complex legislation, and that we will support laws that are potentially not only settled but knowable, so that they have some prospect of becoming settled, known laws. In making laws, less can be more.

8.10 pm

Lord Judd: My Lords, I am deeply sorry to have missed a large part of the middle of this debate, but like the noble Earl, Lord Onslow, I am a member of the Joint Committee on Human Rights, which unfortunately met at the same time and it was an important meeting.

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I for one welcome the changed emphasis in the Queen’s Speech this year. Last year it started with a preoccupation about the dangers, the threat and the security measures that were necessary. This year it spells out the social purpose of government in education, homes and health, and then goes on properly to underline why security is vital if we are to have the context in which all this can happen.

The Speech mentions citizenship. I am always a bit uneasy about defining citizenship. I have always liked to feel that I have been part, and grown up as part, of a free-thinking liberal democracy in which we do not go in for that sort of thing. It seems to me that if we are to talk about citizenship in the age of the global market and total international interdependence, the real challenge is to prepare our young for global citizenship. The Speech also goes on to deal with preserving essential rights.

My formative years were immediately after the Second World War. The great point then was that the statesmen who had been through the traumatic experience of that war understood that human rights were essential to stability and security. They mattered for individuals but they were essential to stability and security. It could be argued that if there is not a rights deficit, extremism will be marginalised. If there is a rights deficit, extremism will always get the way.

The great point about the Universal Declaration of Human Rights and the European convention was that they were talking about rights as the rights of membership of the species. I am not fundamentally opposed to the notion of a Bill of Rights, but as we move on to that consideration we should be very careful. What are we going to do? Will we introduce the concept that there are rights that can be enjoyed by Britons and rights for everybody else? Will that strengthen communities, as the Government wish, or will it introduce new tensions throughout our society?

We must never underestimate the size or scope of the terrorist threat. It is appalling. It places an immense burden on the police and security services. I am glad, therefore, that in considering this issue strategically, the Government have seen the importance of emphasising the battle for hearts and minds. We can probably never eliminate the dangers of terrorism but we can contain and limit them. That means winning people to a positive identification with the cause. How can we do that?

First, we have to listen to the authentic voices of the ethnic communities, especially the young. It is important to speak not only with those representative bodies with whom it is easier to speak, but it is important to hear the voice of the radicals. In a recent seminar a very senior Scotland Yard officer working with the Islamic community emphasised how important his relationships with the more radical organisations were because they carried weight with the young. They were against extremism and terrorism but they were radical and had a resonance with young people. We must include the young.

We must also recognise the inescapability of the inter-relationship between what we are doing on this front and foreign policy. Our ethnic communities will be looking very closely at our position on Pakistan.

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They have done so and continue to look closely at our position in the Middle East. I do not mind saying that I have a good deal of sympathy with those who find it extraordinary that on the one hand we go shouting round the world about democracy and on the other, when a particular Government for a particular community are elected, we say that we can have no dealing with them. I am thinking of Hamas. These issues are central to stability and winning hearts and minds in our community.

We must also—this is perhaps most important of all—have transparency and consistency in the administration of justice. I often reflect with the noble Earl, Lord Onslow—I must say across the House what a joy it is to serve on the Joint Committee on Human Rights with the noble Earl—that the whole story of the development of common law in our society has been a struggle for rights: habeas corpus, the presumption of innocence, no detention without charge, and knowing why one is being held. In the Joint Committee on Human Rights we have been extremely exercised by the 28 days. After searching inquiries and many witnesses, we could see no hard evidence why 28 days was absolutely indispensable. There is now talk of extending this because it might be of use in the future. Are we going to throw centuries of history away because something might be of use in the future?

We are contemplating something extremely serious and grave. I worry that we are in danger of inadvertently giving the extremists the victory by dismantling the very principles and basis of the foundation of our society because of the risks that such extremists create. Of course we have to be tough. We must be tough but we have to be tough, but we must be so in the context of the principles that we hold dearest in our society.

Intercept evidence is of course related to this. I see the noble and learned Lord, Lord Lloyd of Berwick, in his place; the House has benefited tremendously from his considerations, and we are of course waiting for the report. Everybody knows that people are detained on the basis of intercept evidence. There is nothing more aggravating than to know that something is the case but not to have any access to its realities in court proceedings. We find ourselves increasingly isolated in the world on that front. We must be careful not to get into a mindset of why it is not possible. For example, there is a real issue of how in an adversarial system of justice one would prevent rules about what must absolutely—essentially—be kept secure from being eroded. I see that argument, but we should all address our minds to how we make it more possible, not to dismissing it as a possibility.

I conclude by saying that I have become convinced that terrorism and extremism thrive on ambivalence. If there is a feeling of perceived hypocrisy, contradictions, double standards and convenient adaptation of the law for particular circumstances without it being clearly justified, grievance develops. Recruiting for terrorism takes place in the context of a sense of grievance. How we administer our immigration policy is central: if by doing it we are humiliating and alienating people, we are sending them away as potential recruits for extremists. That is not sensible.

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