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I believe that the great majority of people in this country share my view about governance arrangements which should keep party politics out of policing issues and ensure that the police can pursue operations in accordance with the law, but without fear of or favour to elected politicians. Our political culture is different from that of the United States, where they are much more party political at local level, and where, if a new regime is installed at city hall, out go the old police chiefs, the head of finance, the city managersand so forth, and in come new appointees made by the new political regime. Such direct and overt political control has never been, thus far, the British way. I am a great supporter of the British political culture and believe it serves policing particularly well.



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The second important development for policing came in 1998, with the introduction of crime and disorder reduction partnerships and, more recently, local criminal justice boards. Those measures ensured that, at ward and council level, the police and the CPS worked with other agencies, such as social services, education, health and housing, to deliver crime strategies and to target offenders. Very often all these agencies were focusing on the same families and individuals but in isolation. Sharing data, working together and setting local priorities have all paid dividends and led to important initiatives such as identifying and dealing with persistent offenders and setting up new drug programme initiatives. It took time for effective links to be made between CDRPs and police authorities, but now police authority members and local councillors play central roles in these partnerships. That is important, as local crime patterns are often closely linked to serious and organised crime, and the links between them need to be understood and acted on. Local crime must not be seen in isolation and separated off from force level and national issues. Sufficient resources must always be available to deal with serious and organised crime and counterterrorism.

Most recently, the third development has been the introduction of neighbourhood policing. I strongly welcome that, as I have worked for it since the 1980s, and it has transformed policing and public attitudes to the police service. It has to be effectively organised and delivered—which is not always the case—properly resourced and aligned to local ward and council areas. It opens the door to innovation, to local initiative and problem solving, and to high levels of public confidence and satisfaction. Local people want the introduction of community support officers, working to beat bobbies and to local inspectors, and monthly meetings at ward level between local police officers and local people to prioritise crime and nuisance issues, deliver action on them and then report back on what has been achieved. In Lancashire, it has delivered further reductions in crime and rocketing levels of confidence and satisfaction, and that is true elsewhere too.

I recently noticed comments in the press about falling numbers of front-line officers. However, numbers themselves are not important but how effectively those forces are deployed. In recent years, forces working with the Government and with police authorities have become much better at using officers to have the most impact and in deploying mobile technology to free officer time to spend on the front line.

Whatever proposals are contained in the new policing Bill, I urge the Government to ensure that none of them is allowed to undermine all the good work and innovation of the past 15 years. Any measures that are seen by local councillors as divisive, that undermine partnership working or co-operation with local councillors, that encourage extremism or allow party politics to return to local policing will be carefully scrutinised by your Lordships. For my part, my test will be simple: will the new proposals improve on what is now on offer across the country in complex two-tier areas, such as Lancashire, or will it worsen the quality of policing and the tangible involvement and consultation

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on a regular basis that local people presently enjoy? I look forward to debating these issues more fully in the new year.

I shall end with a brief mention not of crime but of disorder; namely, the disorder common now to all city and town centres after 11 o’clock as a result of excessive drinking by young people. This is not a new problem. I remind your Lordships that it was a problem very familiar to the Victorians, and one that the early temperance campaigners, who were so influential in the Labour movement, were trying as hard as they could to address. They had seen the evils of alcohol in their own homes and families and on the streets and wanted to save others from the misery inflicted by uncontrolled drinking. I remind your Lordships that their campaign was ultimately very successful; by 1932, the then Home Secretary, Sir Herbert Samuel, told the House of Commons:

“We have got rid to a great extent of drunkenness as a national vice”.—[Official Report, Commons, 15/4/1932; col. 1155.]

That was as a result of reducing the strength of drinks during the First World War, introducing licensing hours and developing alternative attractions to pubs, such as dance halls and cinemas.

Alas, in the past 20 years, we have gone strongly into reverse with the abolition of licensing hours, the introduction of ever-stronger drinks for teenagers and the development of a celebrity culture that publicises and highlights excessive drinking and drugs. I welcome the Government’s suggestion of a mandatory code of conduct for the drinks industry to try to begin to tackle the widespread problem of heavy drinking, with its attendant health problems and rowdyism, but I particularly welcome the idea that local communities should look to introduce their own local solutions with a range of measures. I suggest that they could do worse than look back to the pioneers of the temperance movement for many practical suggestions.

5.53 pm

Lord Lyell of Markyate: My Lords, my main point, when I get to it shortly, will concern the “elephant in the room” in connection with the Damian Green case. Before that, since this is a debate, I say that I strongly agree with my noble and learned friend Lord Mackay of Clashfern about the position of the Attorney-General and disagree with the noble Lord, Lord Goodhart. However, I agree with the noble Lord, Lord Goodhart, about indeterminate sentences. I hope to have a minute to say something about them later. I strongly agree with the noble Baroness, Lady Manningham-Buller, about the Regulation of Investigatory Powers Act and local authorities. The Government should remember that Charles Clarke, when he was Home Secretary, gave an assurance that local authorities would not be given these powers, which are now used for dog fouling, school placements and so on. Those powers should be repealed. I agree strongly with the noble and learned Lord, Lord Lloyd, about a particular aspect of the Damian Green case—which is not my key point—that is, the failure to take proper advice and follow proper procedures in obtaining a warrant before entering the other place.



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My key point—the elephant in the room of the law—seems to have been missed by everybody involved. It is that this whole area, on the facts in so far as they have been revealed—and they have been pretty extensively revealed in the press and other media—is one in which the criminal law has no application whatever. My noble and learned friend Lord Mackay put his finger on this when asking the Minister a question on Thursday. He pointed out that the Civil Service Code is not a criminal code. Whatever one may think of leaking by a civil servant, whether senior or junior, in the alleged circumstances of this case—and basically one must deplore leaking—while there certainly seem to have been clear breaches of the Civil Service Code, it is not a criminal code. It is not, on these facts, a matter for the criminal law.

The criminal law was expressly removed from the great bulk of official information by the Official Secrets Act 1989, which reformed what was by then regarded as the grossly overbroad Official Secrets Act 1911. The 1989 Act replaced it with carefully graded and much more proportionate provisions. As my noble friend Lord Hurd of Westwell, who was then Home Secretary, said in the Second Reading debate:

“We ask the House today to agree in principle that the criminal law should be prised away from the great bulk of official information ... including policy documents, Cabinet discussions on education, on health and on social security, and economic information and budget preparations”.—[Official Report, Commons, 21/12/1988; cols. 460-62.]

Protection was retained for what he described as six limited areas, and each of them is subject to a harm test. Those limited areas are, quite rightly: security and intelligence, defence, international relations, foreign confidences, information that might lead to the commission of crime, and special investigations under the Interception of Communications Act 1985 and the Security Service Act 1989. None of these, on the information available, I believe, to any of your Lordships, including the Minister, appears to be relevant to the leaks by Mr Galley, and it is notable that the police have not used the Official Secrets Act 1989 as the grounds for arrest. The arrests were purportedly for misconduct in public office against Mr Galley and aiding, abetting, counselling or procuring such misconduct against my honourable friend Mr Damian Green. That is a common law offence that dates from 1783 and was created by Lord Mansfield. It is rightly described in the CPS guidance as,

that should be used with the greatest care.

In my opinion, it is extremely doubtful whether that can have any application where Parliament has expressly removed the conduct in question from the criminal law. I have been in touch with the Attorney-General's Office on those points, and I hope that the matter will be looked into by all the relevant authorities, especially the Home Office, which, in my opinion, did not do proper preparatory work before calling in the Cabinet Office and, through it, the police. The police must certainly not be hampered in any legitimate inquiries,

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but when an inquiry appears to be without foundation in criminal law, it should be brought promptly to an end.

I have just two minutes in which to make my other two points. My point concerning indeterminate sentences is this. We know from the Prison Service publications in March this year—many others in this House know much more about this than I do—that there were no fewer than 10,900 prisoners on indeterminate sentences in March. The problem with those sentences is that they are a Catch-22 for the prisoner and a Catch-22 for the Parole Board. The prisoner cannot prove that he is not a danger to the public without going on a series of courses. Those courses are extremely difficult to get on. The Parole Board dares not let them out unless it has very solid grounds for doing so, because as soon as one gets out and commits another dastardly and dangerous offence, which is sure to happen, it will be desperately criticised. So the numbers build up and up.

My final point is about the structure of legal understanding and advice-giving in government as a whole. Back in 1998, Parliament passed a law that said that the Permanent Secretary of the Lord Chancellor's Department need no longer be a lawyer or have legal training. We have had three, highly experienced Permanent Secretaries since that time, but none of them has had any legal training. I say nothing against any of them as excellent civil servants, but we have seen two massive constitutional errors during that period. The first was the error when Tony Blair sought to abolish the position of Lord Chancellor by reshuffle, but learnt that he could not; the second was just over a year ago, when the Prime Minister, as part of his supposed constitutional renewal reforms, described the Attorney-General in her role as superintendent of the prosecuting authorities and advice-giver as a member of the Executive. Both were fundamental misunderstandings of the constitution, which should never have happened and which I believe would not have happened if a proper structure of legal understanding, promotion path and high power within the public service had still existed.

6.03 pm

Lord Williamson of Horton: My Lords, the subject matter of our debate today is extremely wide. Some part of it is obviously of immediate concern and anxiety among many citizens, in so far as it deals with the efforts of the state to control and reduce crime, to control our borders and to avoid reoffending by those convicted of criminal behaviour. Another part of our subject, constitutional affairs and possible changes to our constitutional practices, is evidently for the longer term. That is recognised by the wording of the gracious Speech, which does not promise a Bill on constitutional affairs but states that the Government:

I understand that to mean that the Government's ideas are alive and well, that a specific Bill may come forward, but that it is not at this stage programmed.

Constitutional renewal, to use the Government’s phrase, is important for all our citizens and I shall comment on the Government’s ideas, which are known.

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They are known because the Government launched their agenda on the governance of Britain with a Green Paper in July 2007. The House of Commons Administration Select Committee has worked on some of those ideas, particularly in relation to prerogative powers and the Civil Service.

On 25 March this year, the Government presented a complete draft constitutional renewal Bill. I was a member of the Joint Committee of the two Houses of Parliament that examined the draft Bill very thoroughly, including taking written and oral evidence from 94 organisations and witnesses. I have long been a strong supporter of pre-legislative scrutiny, and I emphasise to the Government the value of the Joint Committee's views on the draft Bill, even on those issues where the Joint Committee expressed some doubts about the Government’s position. I hope that the comments of the Joint Committee will be fully taken into account both if, as is possible in some cases, the Government want to go forward without legislation and if a constitutional Bill is presented later.

I shall comment on some specific constitutional issues which the Government have put forward. I have selected those points because it did not prove easy to discern the principles underlying the draft Bill. Almost 50 years ago, I was doomed to work on the Agriculture (Miscellaneous Provisions) Bill, and a slight feeling of déj vu occurred in examining the draft constitutional renewal Bill. I begin with the issue most closely related to the administration of justice; namely, the role of the Attorney-General, to which several noble Lords, including the noble and learned Lord, Lord Mackay of Clashfern, have spoken, and possible further reforms in relation to courts and tribunals. On the role of the Attorney-General, it has been argued by the House of Commons Justice Committee and others that it would be right to separate the Attorney-General’s legal and political functions, that issue having been brought into higher relief by recent events such as the legality of the invasion of Iraq in 2003.

The logic of the case for a separation of functions can be seen but, like the noble and learned Lord, Lord Mackay of Clashfern, I am among those who consider that it is outweighed by some of the advantages of the present system. There is a double advantage in having the Attorney-General as a Member of a House of Parliament, which provides the right forum for accountability, and as a Minister present when necessary in the Cabinet as chief legal adviser providing robust advice to the Government at the highest level. To that extent, I am conservative.

On the Attorney-General's role in relation to prosecutions, the Government propose that most of the requirements for the Attorney-General’s consent to individual prosecutions should be transferred or abolished. That is reasonable in the light of the objective to ensure as far as possible operational independence for the prosecutorial authorities. However, as a measure of last resort, it should be possible for the Attorney-General to stop a prosecution or a trial on indictment, especially where national security is involved. The Attorney-General should be accountable to Parliament in those, probably rare, cases.



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I turn to the changes which the draft constitutional renewal Bill proposes for courts and tribunals—for example, on the role of the Executive or a power for the Lord Chancellor to set targets and issue directions to the Judicial Appointments Commission—with which I do not agree. The key point here is that the Constitutional Reform Act 2005 made fundamental changes in the judicial appointments process by introducing a carefully calibrated balance between the role of the Executive, the judiciary and the Judicial Appointments Commission. I strongly support the view of the Joint Committee that it is far too soon to propose significant changes only two years after the present arrangements were introduced.

The second main group of proposals stems from the Government’s wish to give greater power, or at least a power of scrutiny, to Parliament in relation to treaties, to war-making powers and to the Civil Service. I have considerable sympathy with this objective, as I believe that in practice the Executive have acquired too big a role in decision-making and Parliament too small a role.

On treaties, it would be right to put the Ponsonby rule on a statutory footing, with the 21-day sitting period and the effects of a negative vote in both Houses covered in legislation. There will of course be disputes about exceptional circumstances and problems with the definition of treaties, as important agreements are often included in Memoranda of Understanding.

An even more significant problem is whether we should make any changes to war-making powers, particularly following the Iraq war, the Private Members’ Bills, and the recommendation of the House of Commons Public Administration Select Committee in favour of a statutory provision requiring parliamentary approval for any decision to engage again in armed conflict. Others, including our own Constitution Committee, did not go so far but did recommend a convention. It appears that, among a number of options, the Government prefer a detailed resolution of the House of Commons. Of course the Government must keep the power to act if it were a question of a war of survival, but, this apart, a detailed resolution may best respond to the need which many people perceive for tighter parliamentary scrutiny of these extremely important decisions.

Finally, the draft constitutional renewal Bill incorporates another complete Bill on the Civil Service. A proposal to put the Civil Service on to a statutory footing, although it is 154 years since Northcote and Trevelyan proposed it, deserves a self-standing Bill and should be supported. There is no time today to launch into this, but I assume that, in due course, ex-civil servants such as me and campaigners such as the noble Lords, Lord Sheldon and Lord Lester of Herne Hill, will finally have their chance.

I know that the Minister’s room for manoeuvre in replying to all these points may be limited, but if he can say a little more about the proposals to which the gracious Speech specifically refers—it is highly relevant to our debate; it is up on the screen—I would be satisfied.



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6.12 pm

Lord Norton of Louth: My Lords, it is a pleasure to follow the noble Lord, Lord Williamson of Horton. As he mentioned, the draft constitutional renewal Bill was subject to scrutiny by a Joint Committee before the Summer Recess. Like him, I was a member of that committee, and we had a gruelling schedule so that we could complete our report by the end of July. We have not yet had a government response to the committee’s report, and, as has been mentioned, it now looks as though we may not see the Bill for some time.

The Bill, in both content and delayed introduction, is an illustration of the Government’s approach to constitutional change. The Bill, as the Joint Committee has argued, is mistitled. It is not a constitutional renewal Bill. Nor is it, as described by the noble and learned Lord, Lord Falconer of Thoroton, a constitutional retreat Bill. My disagreement with that description derives not from an unwillingness to be critical of the Bill but rather from the fact that it suggests that the Bill is moving in a clear direction. It posits a coherence that the Bill lacks. What we have, in essence, as the noble Lord, Lord Williamson of Horton, has touched on, is a constitutional (miscellaneous provisions) Bill.

The Bill comprises five substantive parts, each of which is in essence free-standing. Some are of constitutional significance, such as putting the Civil Service on to a statutory basis. Others, such as amending the procedure for judicial appointments, are not of great constitutional import. The Bill comprises provisions, then, that are disparate and discrete. As such, it is symptomatic of how the Government have tackled constitutional reform. Since 1997, we have witnessed significant changes to our constitutional arrangements. According to the distinguished academic lawyer, Robert Stevens, these changes, combined with our earlier membership of the European Communities, have collectively created change on a scale that has not been witnessed since the late 17th and early 18th centuries. The constitutional landscape is very different from what it was 40 years ago, and, indeed, 11 years ago.

The Bill is, however, distinguishable from the constitutional reforms of the Blair Government in that it represents a shift in direction. Most of the changes of the Blair Government were in essence external to the institution of Parliament, although none the less having profound consequences for it. The present Prime Minister on taking office, as has been mentioned, promulgated his Governance of Britain agenda. At the heart of that agenda is a strengthened Parliament. The agenda has included transferring from the Executive to Parliament the exercise of a certain class of prerogative powers. As we know and as the noble Lord, Lord Williamson of Horton, has mentioned, foremost among these is the so-called war-making power and the ratification of treaties. We have thus seen a change of direction. The problem is that we still have no idea of the intended destination. Each constitutional change has been justified on its own merits. There has been no articulation by the Government of the type of constitution that they are trying to create for the United Kingdom. In essence, we have no idea where we are going.



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When I initiated a debate in your Lordships’ House on 18 December 2002, the then Lord Chancellor, the noble and learned Lord, Lord Irvine of Lairg, conceded that the Government had no overarching theory. He went on to say:

“All of our reforms were fundamentally informed by three principles. The first is that we should remain a parliamentary democracy with the Westminster Parliament supreme and within that the other place the dominant partner. Secondly ... we should increase public engagement in democracy, developing a maturer democracy with different centres of power where individuals enjoy greater rights and where government is carried out closer to the people ... Our third principle is that the correct road to reform was to devise a solution to each problem on its own terms”. —[Official Report, 18/12/02; col. 692.]

The problem with these principles is that the first two are not necessarily compatible with one another. They do not provide a clear picture of a constitutional end-point, certainly not in terms of the distribution of power. In any event, these two principles are in essence contingent, given the third principle,

In other words, change is specific to each case. A cynic may rewrite this third principle as, “We make it up as we go along”. There was certainly no coherent view of the constitutional framework that the Government were trying to craft for the United Kingdom.


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