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The noble Earl, Lord Onslow, referred to the fallen. I was in my village church yesterday at a moving remembrance service. There was a great deal of talk around that service and in the sermon, as there was right across the country, about having fought for freedom. We felt that yesterday. Is that something we just keep for 11 November? Or do we mean what we say on 11 November? If we mean it, we must not easily slip into the “convenient in the administration of justice” argument as distinct from what is proper, right and justifiable. We must examine with the utmost care anything proposed. I find myself totally unpersuaded at this juncture that there is any need for any extension of 28 days.

8.21 pm

Lord Maclennan of Rogart: My Lords, this debate and the gracious Speech have powerfully underlined the perception that if Parliament is to be restored with a sense of trust in its centrality to our democracy then we must put constitutional reform at the heart of our work. This debate has ranged widely but identified a number of areas of broad agreement. I agree with the noble Lord, Lord Norton of Louth, when he notes the change in the manner and objectives of constitutional reform under our new Prime Minister, who has openly espoused the notion of seeking consensus to strengthen Parliament. I likewise agree with the noble Lord, Lord Morgan, that the notion is timely and central, although I do not entirely accept the inevitability of incrementalism to which he attached himself. One of the difficulties about serial constitutional reform is that it does not embrace the impact of what it is doing on the different institutions. We must broadly consider how by moving on devolution in Scotland, for example—a point made by the noble Lord, Lord Jones—we might impact indirectly on Wales. Would it not be better to seek to enshrine in our plans for devolution the principles informing the lead case?

This gracious Speech particularly highlights in its initial legislative proposals two areas for the transfer of prerogative powers to Parliament. In passing, it might be said that the basic assumption—basic at least if you have a mind which is aware of constitutional comparisons—is a little odd in that we are talking about transferring powers to Parliament and the people. There is at least an arguable case that power should be exercised only if it is explicitly contained in statutory provision; that is the underlying case for a written constitution. I hope that that debate will sharpen and accelerate.

Perhaps the most powerful theme in today’s debate, on which there has been broad consensus, is that we must not undermine the basic liberties of our country, which recommend it to others as the haven of enlightenment and freedom, by what we do under the threat of terrorism. The extension of pre-trial detention, which has been referred to by more speakers than any other subject today, is clearly not something that has commended itself to this House as necessary. The noble Baroness, Lady Neville-Jones, in the powerful speech with which she began this debate from the opposition Front Bench, said that such clear evidence of necessity would be required. It is certainly reasonable

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to doubt that it exists, since it has not been deployed by the Home Secretary or anyone else in the Government in support of a particular period of detention beyond 28 days. The noble and learned Lord, Lord Lloyd of Berwick, my noble friend Lady Falkner of Margravine and, movingly, my noble friend Lady Tonge spoke about the obnoxiousness of executive detention, and that message must be taken from this debate when the Government are considering this issue.

I fear that to some extent such proposals reflect a rather unfortunate propensity which we have in Parliament to amend our criminal law not in a systematic fashion but by steps. Following each headline, each new Home Secretary comes in with a new criminal justice Bill to put his or her stamp on the statute book. The result is that we ratchet up the severity of the law and the penalties of the law, and it is no accident that with that history we are filling our jails in a manner that is quite incompatible with our aspirations to be a free society and which is quite out of line with every other European country. We need to look again at the possibility of the codification of criminal law, a recommendation made many years ago by the Law Commission and something that requires serious and continuing attention.

We have also had a fascinating discussion about citizenship, which was sparked by Gordon Brown. Perhaps one of the most penetrating observations was that made by the noble Baroness, Lady Warsi, who spoke of the importance in this context of recognising the right to equal treatment and preferring it to the right to enshrine difference. She was sustained in her arguments by my noble friend Lord Smith of Clifton, who pointed to some of the potential dangers in extending faith schools across our country at this time. The noble Lord, Lord Patel of Bradford, similarly spoke of celebrating the diversity in this country, which he saw as a strength. The right reverend Prelate the Bishop of Salisbury spoke of the dignity of common citizenship. That is a theme that will sustain the direction that has been outlined by the Government, but we shall have to come back to the practical applications of that theme.

Some will regret, as I do, that there was no reference in the gracious Speech to the decentralisation of our constitutional arrangements and the requirement for equity in the distribution of taxpayers’ money across the regions. Several speakers, including the noble Lords, Lord Forsyth and Lord Trimble, spoke of the importance and necessity of amending the Barnett formula. That must be taken seriously if there is not to be a sense of injustice and inbuilt inequalities in our constitution today. Some mention has been made of overcoming the problems of being left out or being underfavoured in the proposed economic regional committees of the House of Commons. I will return to that.

Attention was also drawn to the need to strengthen the rule of law. My noble friend Lord Goodhart spoke of the squeezing of legal aid, especially civil legal aid, removing access to the courts. That also requires urgent attention but was not addressed in the gracious Speech.

I return to the issue of the prerogative powers—which, in a sense, is the central theme of the gracious Speech. We must welcome the concept of scrutiny of treaties by Parliament. It is a total anomaly that the

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Executive can commit this country without such oversight. That will greatly strengthen the perception that we are living in a parliamentary democracy. I have some sympathy with the view expressed by the noble Lord, Lord Borrie, about the appointment of judges. I am not entirely sure that that issue of the prerogative power needs to be approached at this time, in the light of the 2005 Act. His thoughts on that were compelling.

It is remarkable, however, that the tone of voice used by our Prime Minister in speaking of constitutional reform in the Green Paper, The Governance of Britain, differs so dramatically from that used when he spoke of constitutional reform in the European Union—which also directly affects us in this country. There, he sought to justify the changes contained in the European reform treaty not in terms of their necessity for effectiveness, accountability and democratic control, but rather in terms of how Britain had tried to opt out of it all. I hope that that will change in the course of our discussion on the European Union’s constitutional changes during the next few months.

There are matters which were singularly missing from the Speech, such as the whole issue of electoral reform, which, when the Statement on the governance of Britain was made, was referred to in terms of assessing the systems that have been implemented in certain parts of the country and for certain elections. That process is important and I hope that steps will be taken before this Parliament is out to remove the nonsense that my noble friend Lord Tyler addressed in his remarks. I hope that the Government will also bring forward proposals to deal with potential abuses of the law applied to the funding of political parties at this time. The report of Sir Hayden Phillips was valuable and offers a basis on which it should be possible to build.

Perhaps the most surprising omission from the Queen's Speech, in view of the amount of preliminary work and the Bills that have been drafted and published already by the Government, is the reform of the Civil Service, placing it on a statutory footing. I am not clear that the Government's legislative programme is so full that it would be impossible to advance that at this stage, but it would be helpful if the Minister, in his summation, could indicate the Government's current thinking on that issue. It is important that the independence of the Civil Service is secure. Moreover, if one is strengthening Parliament—the theme of this speech—it is important that civil servants are seen to relate directly to Parliament and to have an obligation to report to it, and not to be solely accountable to their Ministers.

In conclusion, there has been a conspicuous silence in this debate about the reform of this part of Parliament. No doubt we will return to that subject on another occasion. I will say nothing about the structure of this House in this debate. I will, however, say that it would be an error of judgment to seek to pile all these responsibilities on to a unicameral legislature and to make the House of Commons responsible for the oversight of public appointments and the scrutiny of treaties. To make the House of Commons the repository of the prerogative powers is frankly to diminish the

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prospect of their effectiveness and to avoid accepting, and indeed embracing, what the second Chamber is perfectly capable of doing and will be strengthened in doing if it is seen not only to embrace the expertise and knowledge that is currently here but to be based on a democratic foundation. I hope that we will hear considerably more about those prospects before this Parliament is finished.

8.36 pm

Lord Kingsland: My Lords, I think all your Lordships will agree that this has been a most stimulating debate. It has given rise to a wide number of questions, all of which have been entirely relevant to the theme.

I wish, first, to ask certain questions about the core part of the speech by the noble Lord, Lord West. The noble Lord will not be entitled to answer it from the Floor of the House. That task will fall to the noble Lord, Lord Hunt, who I realise might not have at his fingertips the latest information that the noble Lord, Lord West, will have. I will, to that extent, be tolerant of what he has to say.

First, why does no other democratic country need such a long wait between the point at which someone is arrested and the point at which they are charged? Two explanations spring to mind. The first is that, unlike all other countries, we do not allow intercept evidence in terrorist trial proceedings. The second was suggested to me by the noble Baroness, Lady Kennedy of The Shaws, when she drew our attention to a frightening statistic about the amount of resources that are invested in criminal investigations of terrorism. Could those two matters explain why the United States needs much less time between arrest and charge than we do?

Secondly, on the assumption that one of the two is desirable, which I do not accept, why do the Government need both to lengthen the time between arrest and charge and at the same time to allow post-charge interviews? I can see why one should be requested, but I cannot understand why both should be.

There is another dog that did not bark: the so-called threshold test. As your Lordships know, a prosecutor must usually be satisfied that the evidence before him discloses a reasonable prospect of conviction. Where insufficient evidence is available to meet this requirement, but the authorities are convinced of the need to keep an individual in custody, they may apply the lower threshold test. All that is needed is reasonable suspicion that a suspect has committed a crime and a reasonable prospect that further evidence will become available. Why have we heard nothing whatever from the Government Benches about this test?

Finally, we have heard nothing about control orders. During the great debate on control orders in the early months of 2005 the Government promised, as those debates concluded, that they would allow your Lordships' House to review the regime in 2006. When the relevant date came in March 2006, the Government said, “We want to wait for certain further matters to be determined before we go ahead with our undertaking in 2005”, one of which was a court case. In the spring of 2007, again the Government said, “We will not bring this

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matter forward until the court has spoken”. Now that the courts have spoken, will the Government undertake today to allow your Lordships' House to consider the whole question of control orders again in the course of the proposed terrorism Bill? Control orders are no more or less than executive preventive detention, a matter which was drawn out most strongly by the noble and learned Lord, Lord Lloyd of Berwick, in the initial debates and the subsequent placing before your Lordships' House of the relevant statutory instruments.

One of the most damaging things about the control order procedure is that it involves the judges, pretending that they are exercising a judicial role. The more that the judges are brought in like this, the more their independence will be undermined. When their independence is undermined, we undermine the values on which our society has been constructed, painfully over many centuries. Those are all important matters for the Government to address.

The main task of the noble Lord, Lord Hunt, will be to deal not with matters of terrorism, but with matters concerning the Criminal Justice and Immigration Bill. I think he will agree that this Bill is a range of disparate matters. When confronted with his hostess’s pudding, Mr Churchill said, “This pudding has no theme”. One might say exactly the same thing about the Criminal Justice and Immigration Bill, on which I have just four observations to make.

Like the noble Baroness, Lady Miller, we deplore the trend towards mixing the civil and criminal jurisdictions, resulting in quasi-criminal orders that may impose significant restrictions on an individual’s liberty. We also intensely dislike permitting non-legally qualified CPS staff to conduct proceedings in magistrates’ courts which may result in the defendant receiving a prison sentence. Of course, foreign criminals who have committed serious offences, but who cannot be removed from the UK, should not receive permanent immigration status. But surely the Part 11 proposals are unnecessary. The Secretary of State can achieve the same ends by granting discretionary leave, reviewable every six months. Finally, and in particular, we strongly oppose the proposed amendment to the 1968 appeal Act which would permit convictions based on the gross abuse of the investigation or prosecution process. The changes would lead to a perception that convictions were unreliable and unfair.

The debate itself dealt with many things; but broadly speaking there were five matters of note. The first is the question of the dignity of citizens—citizens’ rights—and a range of related issues that were dealt with by a number of noble Lords. I recall in particular the speeches of my noble friend Lady Warsi, the noble Lord, Lord Patel of Bradford, and the right reverend Prelate the Bishop of Salisbury. My noble friend Lady Warsi made a valuable analysis of the difficulties we have with integrating our society. She said first that we cannot legislate these problems away, and how true that is. Secondly, she advised us, again correctly, to concentrate above all on the right to equal treatment. Equality is a fundamental constitutional value in this country, so why have we been so weak in emphasising

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it in community relations? The third point to emerge from her speech was that our own behaviour is often a bad advertisement for our society. Here we are, advertising all our great traditions, but in many ways we are a very badly behaved society and our values are not immediately attractive to parents who are immigrants. We need to think hard about the image that we project to new arrivals to this country. All those points made by my noble friend were of great value, and they were supported with equal eloquence by the noble Lord, Lord Patel of Bradford, and the right reverend Prelate the Bishop of Salisbury.

For the principle of citizenship to work, the Government have to ensure that citizens have real power. A good example of citizens who ought to have real power, who were told that they ought to have it but did not receive it, was that given by my noble friend Lady Shephard. She quoted from a Government paper the expression,

As an example of where that certainly is not happening, she mentioned local government in Norfolk. Despite an overwhelming rejection of proposals for a unitary authority, nevertheless Norfolk has been told that it is going to have one. I ought to say that in my own county of Shropshire, we have experienced exactly the same story.

Another important theme was that of devolution. Here I incline very much towards the view of the noble Lady, Lady Saltoun, on the recent proposals made by Sir Malcolm Rifkind as to how the West Lothian question might be resolved. I believe that the noble Lady said that it would put an end to friction with England, upon which Scottish nationalism thrives. I respectfully agree with her, but I am aware that my noble friend Lord Trimble has hesitations about this. In particular, he is concerned about defining what exactly is an English matter. I agree that to define it precisely would take an eternity. If Sir Malcolm’s ideas are to work, inevitably one has to make certain arbitrary judgments about what is and is not an English matter. That, after all, has been at the core of the drafting of the devolution legislation for Scotland, Northern Ireland and Wales. This issue will have to be confronted by the Government sooner or later. Why not confront it now? And why not have a referendum in Scotland now, as my noble friend Lord Forsyth urged, and as indeed did the noble Lady, Lady Saltoun? My noble friend Lord Forsyth got to the core of another problem when he explained about the distribution of funding throughout the United Kingdom and rightly urged the Government to look at this matter and produce a system of fair funding.

The noble Lord, Lord Goodhart—who it is extremely good to see again emerging from his lair as the chairman of a most distinguished committee—drew our attention to the question of court fees and, in particular, the disgraceful surplus of £34 million that was made last year out of litigants. I wholly share his view, as he knows because we have participated in more than one debate on it. I also share his view about the Ministry of Justice—not as a matter of principle because I know that he has always been a good supporter of it—but because of the linking of

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the prison and probation functions with the other functions of the Ministry. This is not desirable. It makes justice look as though it is part of an administrative process, and that will undermine the important principles to which we adhere.

I have two final thoughts. The first is about what the noble Lord, Lord Borrie, said in his exhilarating contribution to today’s debate. On the question of the prerogative, I think in connection with treaty powers and the declaration of war it is undesirable to place those two matters on a statutory basis, if only because it will make them susceptible to judicial review. I far prefer the route whereby the prerogative is maintained but increasing powers are given to Parliament.

The key to the war-making question is that because Parliament cannot know all the information which leads the Government to ask for Parliament’s support, some alternative way of informing Parliament to an extent sufficient for it to make a sensible, objective judgment is desirable. Parliament must be confident that all the departments, institutions and individuals which provide the information to the Cabinet allowing it to make up its mind have been properly consulted. We must be clear that the Foreign Office has been properly consulted and has given a measured judgment; we must be clear that the intelligence services have done the same; we must be clear that the chiefs of staff have done the same. Anyone reading the Hutton and Butler reports will come to the conclusion that none of those criteria was met over Iraq. If Parliament is confident that all those consultations have been made, its decision will be made on a proper, appropriate and informed basis.

I do not think that the power to give Parliament the right to debate and vote before a treaty has been ratified will enhance its power against the Executive. The key thing is: will Parliament be involved before the treaty is signed? Once the treaty is signed, the United Kingdom Government are bound in public international law and there is nothing that Parliament can do between the period of signature and ratification which is capable of changing the substance of the treaty. The most dramatic example of that was the treaty on extradition between the United States and ourselves which we debated, with horror, some months ago. Parliament must be involved in the process of negotiation. I understand there might be difficulties about this where treaties involve the exchange of confidential information, but certainly it is not beyond the wit of Parliament to set up a procedure whereby, as the negotiations progress, the responsible Minister reports to a Joint Committee, say, of Parliament. That is the kind involvement we must be looking for.

Finally, the noble Lord rather pulled my leg about American ratification proceedings. The key issue is that only Parliament can fire senior judges. It is vital, therefore, that Parliament is involved in the selection of judges. That can be done in two ways. One is how it was done in the 2005 Act, where the Lord Chancellor, who is himself responsible to Parliament, plays a part in the final stages of selection. If that situation can be maintained then we do not need a parliamentary stage; but if the Lord Chancellor is going to be excluded altogether, the other way to involve Parliament is for it

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to play a role in the selection procedure. We cannot have judges selected by a committee that has nothing to do with the parliamentary process when Parliament is the only institution that can dismiss senior judges. The last thing I would want, if the Lord Chancellor’s role were excluded, would be for us, incidentally, to take upon ourselves the American system of “advise and consent”, but other countries like Canada have a much better system, to which we ought to turn if the decision is made to remove the Lord Chancellor altogether. It would be strange for us at this stage to change a procedure that was established in statute only in 2005 and got under way only in 2007.

Finally, I turn to the remarks of the noble Lord, Lord Morgan, who, as usual, made an extremely perspicacious contribution to the debate. He talked—and I am pulling his leg here—about reform being desirable in itself. I hope not. As a Burkean Conservative I rather shy away from reform; but in any event it must have a purpose. It cannot be desirable in itself.

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