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There are three areas on which we need a more coherent United Kingdom approach. One is the West Lothian question and I note the Government's intention in relation to a commission on that matter. I am sceptical whether there is an answer but I am happy to look at it. Secondly, the Barnett formula on funding needs to be on a UK-wide basis. Thirdly, I doubt that in Scotland there will be a referendum for independence because of the arithmetic within the Scottish Parliament. We ought to set down a principle that there should be no referendum unless there is a majority in the Scottish Parliament who want it. The time has come for a written constitution that sets out not just the relationship between the various parts of the United Kingdom but between the other institutions of the United Kingdom.

4.19 pm

Lord Goodhart: My Lords, home, legal and constitutional affairs and local government provide enough material for several days of debate. We have heard very little about local government today, but as we have only eight minutes each we have to use our time carefully.

Therefore, I shall concentrate on one subject-civil liberties. I welcome the proposals in the coalition programme on civil liberties, including scrapping ID cards, extending the Freedom of Information Act, reviewing libel laws to protect freedom of speech, preventing the proliferation of new criminal offences, and other matters.

I also welcome the undertaking in that section of the coalition programme to set up,

That clearly excludes the threat, which concerned me in the past, that new laws might be enacted which would restrict the power of the United Kingdom court to apply all the provisions of the ECHR. As the United Kingdom is bound by the ECHR as a member state of the Council of Europe, it would be absurd to restrict the power of our courts to apply the ECHR and leave litigants needing to take their case to the court in Strasbourg.

What should we add to the ECHR to make a British Bill of Rights? The most obvious addition is the right to jury trials for serious offences. That cannot be part of the ECHR because some countries do not have jury trials. That is an essential element of the United Kingdom's legal system and should be protected by its inclusion in the Bill of Rights. It should not be an unconditional and absolute protection, because there are exceptional circumstances in which serious offences may have to be tried without a jury. In Northern Ireland, some criminal trials could not safely be heard

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by juries during the Troubles, and the judge-only trials in Northern Ireland worked very well. In fact, they had some advantages for defendants over a jury trial because it was the duty of the judge to explain why he had reached a decision to convict, which was something that could be taken to the Court of Appeal. As recently happened in England, it may be necessary to have a judge-only trial where there is reason to believe that a jury will be tampered with or that previously a jury has been tampered with.

Moving beyond incorporating the right to a jury trial-or, perhaps even incorporating that right-may be difficult. Two years ago, I took part in a seminar organised by Justice about a British Bill of Rights. The seminar included lawyers from Scotland, Wales and Northern Ireland as well as England, and the general view held by those attending the seminar-I get the impression that this is a general view among the profession-is that a British Bill of Rights would not be acceptable unless it is approved by the devolved Assemblies as well as by Westminster. Of course, Scotland has always had its own laws and legal system, which differ considerably from the English law and legal system. As an example, the existing rights to jury trial differ significantly between England and Scotland. Some groups in Northern Ireland want to have a separate Bill of Rights for Northern Ireland on its own. Others in Northern Ireland no doubt disagree with that. Therefore, it would be doubtful if we could get a consensus in Northern Ireland for a British Bill of Rights. The question is: would the Bill be a British Bill of Rights in the strict sense-a Bill applying only to Great Britain-or a United Kingdom Bill of Rights?

There are also some gaps in the civil liberties section of the programme. It is a long-standing obligation under the European Convention of Human Rights to allow at least some prisoners to vote in elections. Understandably, that was not mentioned in the programme, but it is a hot potato that needs to be dealt with soon. I personally suggest as a simple solution that prisoners should have a vote if their sentence will expire within a period of not more than five years, so that they will have a vote in the election of MPs who will represent them when they emerge from prison.

Secondly, as my noble friend Lord Thomas of Gresford said, there is a need to look again at indeterminate sentences: so-called imprisonment for public protection. The indeterminate sentence has been a total and expensive failure, and it should simply be abolished.

Finally, on a different point, I hope that one element of spending cuts will be the cancellation of the building of new prisons. On prisons, I entirely agree with the views expressed by the noble and learned Lord, Lord Woolf, and my noble friend Lord Dholakia. Since crime has diminished in recent years, we should reduce rather than increase the number of prisons. We all recognise that the Ministry of Justice will have to cut its spending, but it would be far better for it to do so by cutting the construction of new prisons, or not extending existing prisons, rather than by cutting legal aid, which is of enormous importance and has suffered severely in the past few years. It should suffer, if possible, no more.

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4.26 pm

Lord Lucas: My Lords, I am absolutely delighted to be in coalition with the Liberal Democrats. Over the past 13 years, I have found myself in the same Lobby as them on many occasions in the defence of liberty-and liberty is the lodestone of my life in Parliament. There are differences between us, but I have managed to work out my differences with those on my own Front Bench and I am sure that working them out with the Liberal Democrats will be a good deal easier.

The Opposition are still addicted to oppression rather than liberty. That was clear from what the noble Lord, Lord Hunt, said about CCTV. It is a drug that brings short-term relief in publicity but has nasty long-term side effects. I very much hope that a few years in opposition will have the same effect as a stay in the Priory and that we will recover the Labour Party that I used to look up to 20 years ago. Indeed, I was under the illusion that it was still there in 1997. I remember consoling myself over the loss of my job in 1997 by the thought that Michael Howard would no longer be Home Secretary. Every Labour Home Secretary has been worse and now at last we have the hope of some improvement.

I am also delighted that we are putting a strong emphasis on local decision-making. That is a constitutional change that, if it is taken radically and if we do as much as we should, will have great consequences. I see it fitting in extremely well with the changes in number, size and distribution that are proposed for parliamentary constituencies. I hope that it will bring an end to, or at least the diminution of, parliamentarians viewing themselves as consultants who deal with drainage and other petty issues that should be dealt with locally and properly but are not because of the lack of power and quality at a local level.

I totally agree with what the noble and learned Lord, Lord Woolf, said about prisons. I declare an interest in that I am heavily connected with the charity Safe Ground, which works in prison education. Yes, there are people in prison who need to be there for our protection and people who need to be there as a punishment for what they have done, but there are many more who ought to be in prison or some form custody or penalty for their rehabilitation. You cannot rehabilitate given the state of prisons at the moment. They are overcrowded and there is no money left because of all these people who are pushed into prison. All we reap is a reducing rate of good behaviour after prison; we reap ever greater expense without doing our society any good. I very much hope that we will be able to take a few radical measures just to set us on the right track again and get the prison population to dip. We must allow money and practices to come through that will improve the rate of rehabilitation and get us back to where we used to be with prisons under Home Secretaries such as the noble Lord, Lord Hurd, and Lord Whitelaw. That is where I would like to find myself.

I was immensely inspired, too, by the maiden speech of the noble Lord, Lord Bichard. If he needs a foot soldier in his campaign, I am happy to be that. I have not heard such stirring words since I last read C Northcote Parkinson on public service reform. We can do so

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much. For example, prestige could be given to those in the Civil Service responsible for delivery to make sure that they see projects through from beginning to end and reap the rewards for it, rather than prestige being a matter attached to policy development, where the incentive is to develop policy after policy and to keep the whole thing turning and changing. The noble Lord, Lord Bichard, knows much more about that than I do and I would be happy to treat him as my leader in this matter. I look for early action.

We all know that constitutional reform is not easy. The party opposite can look back on the abolition of the Lord Chancellor and even on the creation of IPSA as things on which it wished it had taken a bit more care. We have clearly fallen into the same trap when it comes to fixed-term Parliaments. Yes, it is a good idea. I support it and I think that it is well worth exploring. But it is not a simple idea. There are lots of little consequences and lots of things that we need to work out. I do not think that my noble friend should take the Labour Party too seriously when it huffs on about 55 per cent. It had fixed-term Parliaments in its manifesto and must have had a mechanism in mind for making sure that the Government could not simply overturn it because they happened to have a majority of seats in the other House. The figure of 55 per cent is randomly chosen. In most Parliaments in the past it would have been totally ineffective because the Government had a greater number of votes than that and could just have overturned it. The figure of 66 per cent, as in Scotland, seems to be much more sensible. We know what the Government are about and why they want to do it, so let us take this carefully and sensibly and not rush at it. We should make sure that we get the detail right, think through all the possible complications and then go firm on legislation. The Government have got their five years for this Parliament. There is no need to rush for further reform.

My sentiments on Lords reform are similar. I am a supporter of an elected House of Lords, which is a necessary, good and inevitable idea. I am as disturbed as the party opposite by the idea that a House that is already too large will have 150 to 200 Members added to it in order to make up the proportions. It would be ridiculous and would bring us into total disrepute. I do not think that noble Lords opposite should worry too much about their ability to defeat the Government. They managed it quite a lot while I was on the Front Bench when we had a vast hereditary army ever at our beck and call. A little bit of having late-night Divisions and a little smiling at Back-Bench Members opposite will work wonders.

Above all, I hope that in considering Lords reform we will not do what the party opposite has done and conduct our deliberations in secret. We should be open in our processes. If we set up a committee, it should publish its deliberations and be open to representations. We should have not just us but the nation feeling that it has been absorbed in-to the extent that it wishes to be absorbed in-the process of deciding the future of the House of Lords. It is not a simple matter. Anything that we do will have consequences. However limited the changes that we make around even the fact of election will have consequences. If we go for any of the more radical options, such as those

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proposed by the noble Lord, Lord Hughes, we will find ourselves in difficult waters. To do that closed, without involving people in the process, is merely to invite years of chaos afterwards.

4.34 pm

Baroness Quin: My Lords, I, too, add my congratulations to those noble Lords who have become Ministers in the new Government. I congratulate in particular the noble Lord, Lord McNally, whose long experience was partly gained through the Labour Party. I am glad that his political hero is still Clement Attlee. That his experience and ability should be channelled into government is good news and I warmly congratulate him on that.

As has been pointed out in the debates, there are many ironies in the current governmental situation. I was struck by this when I returned to my London flat after spending most of the election period at home in the north-east of England. Having marvelled at the harmony and mutual admiration shown by the Prime Minister and the Deputy Prime Minister in their Downing Street press conference, the first piece of literature that I saw on my doormat was an election communication from the Liberal Democrats warning me that the Tories were putting the NHS at risk and asking me, "What else are the Conservatives not telling you?".

However, as many people have pointed out, the parliamentary arithmetic as a result of the election made some kind of coalition or joint arrangement inevitable and, given the numbers, the coalition that has now been formed was the more obvious outcome. I pay tribute to both parties for the huge efforts that they put in to negotiate and secure a deal. Having said that, I believe that it is probably in the area of constitutional affairs where the greatest tensions within the new coalition Government are likely to arise. We have seen some evidence of that even today.

While I have often agreed with Liberal Democrat colleagues in the past on issues of constitutional reform, like my noble and learned friend Lord Boyd I was somewhat taken aback by the speech of the Deputy Prime Minister in which he rather grandiloquently compared his reform programme with that of the Great Reform Act. He criticised the outgoing Labour Government for excessive decentralisation and for quashing dissent in a way that I found both wildly inaccurate and, sadly, ungenerous. As has been pointed out, Labour had enacted a profound decentralising programme with devolution to Scotland, Wales, Northern Ireland and London and even proposals-sadly voted down in a referendum-for regional devolution within England. The Liberal Democrats had supported most of that programme. Indeed, like the noble and learned Lord, Lord Boyd, I remember the days of the coalition Government in Scotland. At that time I was an Agriculture Minister and worked closely and happily with my Liberal Democrat counterpart in the Scottish Parliament, Ross Finnie. I am glad that my noble friend Lord Hunt pointed out in his speech that, as well as these decentralist measures, our Government also brought in many measures on civil liberties. I am glad that he listed those and I wish that the Deputy Prime Minister had at least alluded to some of them.

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The Government's programme contains constitutional proposals that I certainly support. Like the previous speaker, the noble Lord, Lord Lucas, I wish the Government well on Lords reform, as I have always supported the principle of a largely or wholly elected House. I agree strongly, however, with the comments made by my noble friend Lady Royall in her speech on Tuesday-and, indeed, by many others in today's debate-rejecting the idea of creating in the interim many more Conservative and Liberal Members. That seems to fly in the face of a principle that I thought was widely accepted in this House. It also runs counter to the comments repeatedly made by the noble Lord, Lord McNally, in previous debates-he even repeated them today-that a House of over 800 would lack credibility. If these proposals are brought forward, that is exactly what we would have, if not considerably more than 800. I hope that there will be a re-evaluation and reconsideration of that approach.

One suggestion that could be picked up from the Constitutional Reform and Governance Bill that failed to make it through the wash-up period before Dissolution is that of allowing existing Members to retire. It would be interesting to know-perhaps the Minister will say in her wind-up-whether or not provisions will be brought forward to allow existing Members to retire from this House in the way foreshadowed in the Constitutional Reform and Governance Bill before Dissolution.

I also support the proposal for fixed-term Parliaments but, like many others who have spoken today, I do not support the 55 per cent requirement, which smacks of political manoeuvring. I hope that the Government will try to reach a wider consensus on this issue. It would be worth while doing so, particularly since opinion polls seem to show strong public support for the idea of fixed-term Parliaments.

I support changing the voting system to AV, although I am surprised that the Liberal Democrats settled for that. Furthermore, winning a referendum on it, particularly depending on the political circumstances of the time, will not be easy. Perhaps I might suggest, rather controversially, that AV be considered for the European Parliament. I was elected a Member of the European Parliament in the days when we had constituencies. Even though I was aware that the first past the post system distorted the vote, it was nonetheless very satisfying to represent a specific territory and have that territorial link. The constituency that I represented was very big, but it was suitable for the kind of industrial and economic issues that were dealt with in the European Parliament.

Like others, I am concerned about the Government's approach to local government. I hope that they will not proceed with the proposal to force elected mayors on 12-I do not know where that number came from-cities. I do not favour forcing local authorities to go down that route. I am concerned, too, that Governments-I include my own in this-do not recognise sufficiently some of the achievements of local government. The local authority that I represented and worked closely with for a number of years, Gateshead, had an outstanding record, which compared favourably with those of the great local governments of the 19th century.

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It was good at promoting educational success, which is why I have some concern about the wholesale academy approach being put forward by the Government.

Finally, I am concerned about the likelihood of the Government making much greater use of referendums in our constitution. This has not been mentioned much in today's debate, but we seem to be in danger of lurching towards a plebiscitary rather than a representative democracy, without thinking through the consequences. At local level in particular, the Government seem to favour a plebiscitary approach. That has not proved a panacea, as examples such as California amply illustrate. I strongly recommend to the Government the recent report of this House's Constitution Committee on referendums and urge caution in this respect.

The Government have set themselves an ambitious constitutional programme. While I genuinely wish them well in pursuing some of those goals, I hope that they will be prepared to think again about others on which I have expressed some reservations today.

4.43 pm

Lord Elystan-Morgan: My Lords, I join others who have so warmly and sincerely congratulated the new Ministers. I also appreciate the tributes that were so properly paid to those who have been translated from ministerial office to opposition spokesmen.

I shall speak to two matters in the Queen's Speech, which stated:

"My Government will propose parliamentary and political reform to restore trust in democratic institutions and rebalance the relationship between the citizen and the state. Measures will be brought forward to introduce fixed term Parliaments of five years".

Perhaps I may comment on that latter statement. It will be noticed that reference is made in the plural to "Parliaments", but the Prime Minister says that the provision now adumbrated is in respect of this Parliament only. Is that a clerical error, or has there been a change of heart on the part of Her Majesty's Government? We will welcome a statement on that in due course.

In relation to fixed-term Parliaments and to the sovereignty that is vested not in any institution but in the ordinary people, a great deal can be said with regard to the matters suggested here. One thing that you cannot have is fixed-term parliaments on the one hand and a greater exercise of sovereignty by the ordinary people on the other hand. Let me give this instance. A Prime Minister dies; one died in 1923-Bonar Law. A Prime Minister resigns on account of chronic ill health, as did Anthony Eden. A Prime Minister may find himself so much in opposition with his own party that there is no alternative. Most people would argue that it is utterly proper, all things being equal, that a fresh mandate should be sought by that new Prime Minister. That was the clarion call of the Conservative Party three years ago when Gordon Brown succeeded Tony Blair, and I thought that there was a great deal of sense in it. Had Mr Brown taken that course, he might very well be Prime Minister today-but that is another matter. What you cannot have is a situation of a fresh mandate for a fresh Prime Minister, when Prime Ministers are becoming more presidential all the time, and at the same time have fixed Parliaments.

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There is a price to be paid for everything and, very often, although these views are honourably held, they are antithetical to each other.

There are arguments for and against fixed parliaments, and one could say that they are very much like curates' eggs-good only in parts. A very substantial statement was made 12 months ago by a very well known public personage, who said that there was a case in favour of fixed parliaments and then went on to say this:

"I know there are strong political and moral arguments against fixed-term parliaments. Political-because there's nothing worse than a lame-duck government with a tiny majority limping on for years. And moral-because when a Prime Minister has gone into an election, and won it promising to serve a full term, but hands over to an unelected leader half-way through, the people deserve an election as soon as possible".

Of course, the author of those words is the right honourable David Cameron in May last year. As the House will have noticed, when he put the matter in the balanced way that he did, his words did not exactly light up with incandescent fervour for the idea of fixed parliaments.

When I first heard of the proposal of fixed parliaments with the 55 per cent rule written in as part of the structure of such an institution, I was horrified. It seemed to me that when a Prime Minister had been defeated, albeit by a single vote, there was no alternative but for that person to go to Buckingham Palace and surrender the seals of office. I accept the point made by the noble and learned Lord, Lord Mackay of Clashfern, that of course one should distinguish between the fall of a Prime Minister and the Dissolution of a Parliament. But to say that that Administration or political structure and that party or those parties would still remain in power unless there was a 55 per cent defeat would create an impossible situation.

The noble Lord, Lord Norton, with his usual statesmanlike and scholarly approach to the question asked what the genesis was of the 55 per cent. In my cynical old age, I believe that the 55 per cent was decided on because it was 2 per cent more than 53 per cent. And what is 53 per cent? It is that proportion of Members in the House of Commons who are not Conservative Members. The Conservative Party has 47 per cent and the Opposition, as it were, 53 per cent, so 55 per cent leaves a margin beyond that.

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