Justice and Security Bill [HL]

Baroness Williams of Crosby Excerpts

Monday 23rd July 2012 Lords Chamber

[Baroness Williams of Crosby]

My Lords, I want to add only a short comment to the remarks made by my noble friend. I can think of nothing that would do more to undermine public confidence in the judicial system than an attempt to try to include coroners’ courts. I will be assured that there has been a promise from the Lord Chancellor that this will not happen, but I cannot understand why the Bill still clearly indicates that there could be a power to include such a court. The Bill says that in exact terms. The idea of excluding the CMP in an inquest would so outrage large sections of the public, especially on publicly very sensitive cases, that I can think of little that would do more to undermine confidence.

I also strongly agree with the general thrust of the remarks made by the noble Lord, Lord Soley. He rightly understands that there is a tendency to have what one might call “executive mission creep”. The temptation to extend powers if there is nothing to limit them more strictly in the Bill is a very powerful temptation indeed. The noble Lord is quite right to say that the procedure laid down here is relatively slow. It is also, to be frank, if I may, relatively inefficient because it depends to a great extent on the interest that is shown in the House of Commons in the procedures that are put before it. Sadly, the story of affirmative procedures is often rather of neglect of the issues and substance put before the House.

The noble Lord is absolutely right to argue that primary legislation would be a more appropriate way to safeguard citizens’ freedoms than to rely on this cumbersome procedure. I strongly hope that the Government will reconsider this very wide-ranging legislation, with very few limits on it. I wonder whether it would be possible perhaps to redraft the legislation in narrower terms and to have more effective accountability. Many of us in the Committee would feel rather more confident about the ability of the legislation to win public support and public confidence.

[Lord Pannick]

My Lords, I share the concerns that have led to these amendments. The views of the Committee and the other place on whether the Bill contains an adequate balance between justice and security will depend on the scope of the Bill and on the scope of the concept of relevant civil proceedings. The wider the scope of the Bill, the less willing Parliament will inevitably be to approve Part 2; and the wider the scope the more willing Parliament must be to include amendments that provide safeguards in respect of the closed procedures.

Given that we are debating this Bill on the basis of the current scope that it contains, it seems fundamentally wrong in principle to give the Secretary of State a power thereafter to expand the Bill’s scope in a manner that when that proposal comes before Parliament will prevent us proposing any amendments that would introduce necessary safeguards that Parliament might think are required in the light of the expanded scope of the Bill.

With the Committee’s permission, I shall return—I have checked the facts—to a matter raised by the noble Baroness, Lady Stowell, in her response to the previous group of amendments. She told the Committee, as I understood her, and as the noble and learned Lord, Lord Falconer of Thoroton, understood her, that the Government may envisage that an application for a closed material procedure may be made in secret, without notification to anyone. My understanding, which I have confirmed, is that under the old control order procedure and the existing TPIM procedure, the application for a closed hearing is always made in public. Indeed, it has to be made publicly because the whole point of the special advocate procedure is that the special advocate before the closed procedure starts can talk to the litigants concerned and obtain information from them.

Furthermore, once a judgment is given, there is always an open judgment, which always refers to the closed judgment—if there is a closed judgment—without of course disclosing the confidential material that is in the closed judgment.

Like the noble and learned Lord, Lord Falconer of Thoroton, I would be very grateful if there could be clarification as soon as possible as to whether it is really the Government’s intention, in relation to the closed material procedure, that applications could be made in secret, entirely differently from how the control order and TPIM regime works.

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[Lord Wallace of Tankerness]

We shall have to agree to differ. Considerable thought has been given to this and we believe that it would not be possible to extend the power here. I am always wary of putting “for avoidance of doubt” clauses into Bills, and I know parliamentary counsel also have anxiety about these things. If that helped, I would certainly be prepared to look at it to put that beyond doubt, although I do so with the caveat that by putting in such things, you have to watch you do not stir up more problems than the ones you are trying to resolve.

We do not believe that the order-making power here can be extended by this coalition Government or any future Government to inquests without primary legislation.

I would like to pick up on the points made by my noble friend Lady Berridge and the differences between civil proceedings, between parties and the inquisitorial nature of a coroner’s inquiry. The Government recognise that inquests have a unique role in our justice system. In inquests where intelligence evidence cannot be disclosed without risking national security and public safety, we will continue to use existing arrangements. In such circumstances, the Government can make a public interest immunity application to exclude the material. The coroner will exclude the material if he or she decides that the public interest in withholding the information outweighs the public interest in disclosing it. An inquest can also be converted into an inquiry under the Inquiries Act 2005. My noble friend made that point in regard to the inquest into the death of Azelle Rodney which could not proceed because neither the coroner nor the jury could see highly sensitive material. To allow all the material to be seen, the inquest was converted into an inquiry with terms of reference mirroring the purpose of the inquest.

With regard to the Mark Duggan case, it would be inappropriate for me to comment at this Dispatch Box on how the Inner North London and North London coroners propose to handle any sensitive material in their conduct of the inquest into the death of Mark Duggan. It is for the coroners concerned in these cases to decide the best course of action.

Finally, Amendments 70A and 70B would limit instead of remove the order-making power. Amendment 70A would omit the aspect of the power which would enable the adding or removal of a court or tribunal. We believe it is the key aspect of the power and so we could not accept it being limited in this way.

Amendment 70B would omit the aspect of the order-making power which enables orders to be made which amend or repeal any enactment, and I fully understand why Parliament is always wary of any such power. The provisions are for the situation where the definition of “relevant civil proceedings” is changed and certain supplementary or consequential changes are needed. An example of this is in subsection (4), and I hope that it meets the specific concerns raised by my noble friend Lord Hodgson. So, if a tribunal is added, Clauses 6 to 11 of the Bill may need to be adapted for use in relation to that tribunal. The power could be used to explain what “rules of court” mean for the tribunal because tribunals have “procedural rules” rather than “rules of court”. These sorts of differences would be reflected in the use of that power.

I hope I have been able to explain why the Government reached this position.

[Baroness Williams of Crosby]

Perhaps I may press my noble and learned friend one stage further. The material says that a court can be added or excluded as the case may be, and to a lay person saying that it does not apply to a coroner’s court sounds like a Red Queen in Alice in Wonderland announcing that what seems obvious is the opposite of what is obvious. Will my noble and learned friend consider either dropping paragraph (a) or making a particular reference to the exclusion of coroner’s courts so that those of us who are not deeply into legal language would be able to understand the Government’s intention?

[Lord Wallace of Tankerness]

I take the point made by my noble friend Lady Williams. I said I would be willing to look at words like:

“for the avoidance of doubt this does not include coroner’s courts”.

I caveated it because I am always wary of parliamentary draftsmen finding 10 reasons why that will mean 20 different things. In that spirit, I hope she will be reassured that not only do we not intend to include inquests, but we do not believe that the wording here does include inquests. However, I am prepared to look at that to see whether there is a wording which will put that beyond doubt and reassure those who think that there is no belt-and-braces position as things stand.

I have sought to give reassurance on these important issues, and particularly it is important that Parliament scrutinises the powers available to Government by secondary legislation, perhaps a fortiori in circumstances such as this. I will reflect on what has been said in the course of this Committee’s discussion.

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I very much hope that the noble and learned Lord, Lord Wallace, will be able to tell the Committee that the Government recognise that there really needs to be some balance in these clauses. A large number of amendments are before the Committee and I very much hope that before Report the Government will come forward with amendments that properly reflect the needed fair balance in this context.

[Baroness Williams of Crosby]

My Lords, the noble Lord, Lord Pannick, recited directly from the Constitution Committee in its very excellent finding about the width of the phrase “sensitive material”. As usual, we owe a great deal to the common sense of the Constitution Committee in drawing our attention to this kind of matter. I fully appreciate the argument for narrowing down and more closely defining the phrase so that it is not as wide and vague as it is in the Bill. However, before we conclude our discussion on this group of amendments, I also want to refer to one to which no noble Lord on the committee has so far referred at all. Amendment 77A points to the requirement for disclosure on matters that are directly related to international law, to the work of the human rights conventions and to issues concerning, for example, the various United Nations conventions to which this country is party.

The other amendment relating directly to this issue is Amendment 73A. There is a great deal to be said for that but let me say a word or two, because my point relates very directly to the speech of the noble Lord, Lord Reid, which almost completely neglected the significance of international law, international conventions and international agreements under the United Nations. I believe we have hardly discussed this element in our consideration of this Bill. We would be most foolish to continue to neglect that element.

Let me give one personal piece of evidence. For a substantial part of my life I have been involved in issues concerning the danger of nuclear weapons, which of course threaten not only our security but that of a much wider part of the world. How is it that we have come to deal with this? Not entirely successfully but fundamentally, international law and international convention have so far managed to avoid a nuclear war anywhere in the world over a period that is now 60 years long. In other words, security is achieved not just by taking very strong steps toward suppressing those who threaten it but by building up an international consensus that supports the concept of limitations on certain kinds of behaviour.

I regret that the noble Lord, Lord Reid, is not in his place as I would have liked to have taken him on directly on this. He referred, for example, to the danger of chemical weapons, which are now alleged to be in Syria. One of the most successful international conventions up to now is that regarding chemical weapons. It has been almost completely obeyed, with some rare exceptions, of which Saddam Hussein in Iraq might have been just one. Generally speaking, chemical weapons have not been used in warfare, not even in civil war—the most awful kind of war—although that may no longer be true in Syria; we do not yet know. I say very strongly that the point about Amendment 77A is to build in an additional exclusion to the suppression of information where it directly affects our commitment and our signature to international conventions and international rights, because they are a critical part of what it is to have both justice and security.

I will go one step further. It is crucial that we recognise that there is, outside the whole of the issues that we are considering here, a distinct obligation on the United Kingdom, which has been in the forefront, largely along with its fellow members of the European Union, in pressing for international conventions and international law. It has, for example, taken a leading part in the non-proliferation treaty on nuclear weapons, on chemical and biological weapons and, on an issue dear to the heart of my noble friend Lord Lester, establishing human rights and the many discussions that we have had on the European Convention on Human Rights, which needs to be protected by national as well as international law. Therefore, when we look at Clause 13, and particularly Clauses 13 and 14 together, we need to be clear that we must protect these international rights and international conventions, and that we cannot do so if a large part of the information relevant to them is simply suppressed.

Amendment 73A lists a whole set of international conventions on genocide, abuse, torture and so forth that should be taken into account and respected in the way the Bill is drawn up, interpreted and—not least—drafted. It is crucial that we have an amendment of this kind to the Bill, which shows the precious nature and status of these elements in international law; otherwise, we are undermining our own signatures and commitment to these pieces of legislation.

Clearly, there is a particular problem. So far our American ally has not been carried by, for example, the idea of the International Criminal Court. It has not been carried, so far, by the acceptance of some version of the European Convention on Human Rights. That means the United Kingdom is in rather a special place. It shares with its great ally, the United States, a commitment to human liberty, the rule of law, and to national law, being close to one another in similar systems. However, it does not share our commitment to international law, in particular along the lines that I have addressed in my remarks.

We have to balance two things that are not easy to balance. We have a commitment to the concept of growing international law, particularly the International Criminal Court, which has become central in insisting that there are such things as crimes against humanity and which must be upheld and respected as a fundamental part of what we mean by international security, if not always national security. Our duty is essentially to protect that element of our commitment and our belief in international law despite the fact that many of our allies do not wholly share it. I mention the United States because of its rich tradition of national law. I could, sadly, mention a number of our other allies which have virtually no commitment to human rights internationally at all.

I am not clear how we handle the issue concerning international relations in Clause 13(5) with no distinction at all between those who share—to use the phrase of the noble Lord, Lord Reid—“our values” and those who simply do not, and have not subscribed to, for example, conventions on torture or degrading and inhumane treatment. At this point, I merely wish to push for consideration of Amendments 77A, 73A and other amendments that address the issue of obedience and respect for international law. If we are going to continue to discuss this whole group of amendments, we really have to take that major elephant in the room into consideration or we will sell ourselves and our world very short.

Justice and Security Bill [HL]

Baroness Williams of Crosby Excerpts

Tuesday 17th July 2012 Lords Chamber

[Lord Hodgson of Astley Abbotts]

My Lords, in moving Amendment 55 I shall speak also to Amendments 56, 63, 64, 65, 66 and 67. This group of seven amendments spans Clauses 7 and 8. Their underlying purpose is to improve the relationship between the special advocate and his client—if that is the right word—and the special advocate’s ability to carry out his duties effectively. The group breaks down into three subgroups.

First, Amendment 55 concerns Clause 7(1)(b), under which the rules of court require,

“that such an application is always considered in the absence of every other party to the proceedings (and every other party’s legal representative)”.

This is the point that I made in the debate on a previous group of amendments. My amendment seeks to replace “is always” with “may be”. I accept that some, perhaps most, matters will be considered with national security in mind and so will have to be heard in a closed court. However, I wonder whether there will never be any matter that could be argued with a special advocate and other legal representation present. Obviously, one question is: what constitutes national security? We have had a debate about the looseness of that term. At the moment we have no definition of it. Then there are other sorts of information, such as that provided by the police and generated within the UK, which might come up and would not be within the closed material proceedings. I suppose the principle behind this is to increase judicial discretion and therefore fairness—an issue on which the Government have placed great stress. My last point on this amendment is that requiring a judge to hear CMP applications in the presence of only one side under all circumstances does not seem to fulfil the principles of natural justice.

The second group consists of Amendments 56, 64 and 65. This group is about the nature of the appointment of a special advocate and ensuring it is made in a timely fashion. Amendment 56 inserts a new paragraph after Clause 7(1)(b):

“that where a party is excluded from such an application his interests are represented by a special advocate appointed in advance of the court hearing such application and, if the application is granted, for the duration of the section 6 procedure and trial”.

The important words here are “in advance” and “for the duration of”. In other words, the special advocate needs to be given time for preparation and for consultation. My noble and learned friend may say that this will happen anyway but I am told—I stand to be corrected—that there is no statutory requirement at present and it seems to me that in these special circumstances it might be worth while to consider that.

Amendment 64 covers the same points in Clause 8. Clause 8(1) states:

“The appropriate law officer may appoint a person to represent the interests of a party”.

For me, the critical word is “may”. My amendment seeks to replace “may” with “must”. Again, the reasons for that are self-evident and run parallel with the supporting arguments I have given for my natural justice amendment.

Amendment 65 amends the same clause by removing the words,

“in any section 6”

and replacing them with,

“as soon as practicable following”

an application. Applications should not go unchallenged. Therefore it needs to be certain that the claimant is represented at the time of his application and during the proceedings.

The last group, Amendments 63, 66 and 67, is intended to try to strengthen the relationship between the special advocate and the claimant. Amendment 63 takes us back to Clause 7 and inserts two new paragraphs regarding what the rules of court must provide where the proceedings are in connection with a Section 6 declaration. They make it clear,

“that the special advocate is afforded the opportunity to take instructions from the party whose interests he is appointed to represent, and … that the special advocate is at liberty to apply to the court at any time if he considers that any relevant material should be disclosed”,

if he feels that is opportune.

Amendment 66 goes back again to Clause 8. Clause 8(4) states:

“A person appointed as a special advocate is not responsible to the party”.

That seems to me to be strangely indifferent and distant. I understand the nature of the relationship implied by “represent” and that is why my amendment does not propose that but it replaces “not responsible to” with the slightly warmer and more positive phrase,

“responsible for representing the interests of”.

That understands the positive nature of it but does not imply the normal professional duty and relationship.

Finally, Amendment 67 adds four new subsections. The proposed Clause 8(6) requires the special advocate to provide gists of material. We shall come to that in the next set of amendments. The proposed Clause 8(7) permits the special advocate to withdraw if,

“he considers that he is prevented or otherwise unable to properly represent the interests of the excluded party”.

I hate the split infinitive “to properly represent” but it provides a quite important albeit rather nuclear approach regarding the special advocate in the sense that he could draw attention to how the case was being run by withdrawing if he felt that his position had become untenable.

On proposed new subsection (8) in Amendment 67, the requirement for the special advocate to make a report to the ISC about each case for which he is responsible is intended to be an additional element of control. Proposed new subsection (9) would impose a duty and responsibility on him to preserve the confidentiality of closed material, except for the gist to which I referred under proposed new subsection (6), and except where material may lead to a crime that should be referred to the CPS. I have said before about that that I am the treasurer of the All-Party Parliamentary Group on Extraordinary Rendition. Some of the things that I believe have gone on in a rather shadowy way around that rather nasty practice could usefully be given some light. This would be a way in which that light could be shed.

To conclude, this group of seven amendments is intended to try to improve the quality of justice and the equality of arms by giving the special advocate a more defined role in Section 6 proceedings; ensuring that the special advocate attends proceedings where the issue is outside national security; ensuring that the special advocate is appointed in a timely fashion, before a Section 6 application is made; strengthening the ability of the special advocate to represent the claimant by ensuring proper access; and enabling the special advocate to resign if he feels that he cannot do his job properly.

The special advocates have circulated a paper to which I have already referred. I was particularly impressed by paragraph 17, where they list eight reasons why CMPs lack fairness and effectiveness. Three of their reasons seem to have relevance to this group of amendments. The special advocates think they are unfair because of the,

“prohibition on any direct communication with open representatives, other than through the Court and relevant Government body, after the SA has received the closed material”.

That is the first reason. The fifth reason refers to:

“A systemic problem with prejudicially late disclosure by the Government”.

The seventh reason refers to:

“The increasing practice of serving redacted closed documents on the Special Advocates, and resisting requests by the SAs for production of documents to them (i.e. as closed documents) on the basis of the Government’s unilateral view of relevance”.

These amendments are designed to tackle some of those problems. Some of the others in the list have importance, but those are the three most relevant. I beg to move.

[Baroness Williams of Crosby]

I mention again that I am not a lawyer, but I have the greatest respect for the noble Lord, Lord Hodgson of Astley Abbotts, who has done a very great service to this country in the excellent work that he and others have done in the All-Party Parliamentary Group on Extraordinary Rendition.

I want to underline what the noble Lord said about Amendment 66 and to ask my noble and learned friend on the Front Bench whether the wording could not be less sweeping than that in the Bill. Clause 8(4) states that,

“a special advocate is not responsible to the party to the proceedings whose interests the person is appointed to represent”.

I understand some of the problems and appreciate that there are difficulties here, but I ask my noble and learned friend to look again at the wording of the Bill. In particular, my understanding is that a special advocate is responsible for everything short of something that might put at risk national security; it does not mean that the special advocate has a way out of in any serious sense representing the interests of the person whom he has been appointed to represent. I think that that is the meaning of the wording of the Bill. Will my noble and learned friend consider wording that is less likely to raise any questions about the obligations of a special advocate for the people before them who have no other way to get across their case? I suggest that some wording that more precisely defines a special advocate’s duty and where it begins and ends would be much better than the wording currently in the Bill.

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[Lord Judd]

My Lords, perhaps it is an appropriate moment for someone who is not a lawyer to add a layman’s word. We debated these issues very fully at Second Reading and I believe that the helpful amendments before us are a good attempt to try to meet some of the anxieties that were expressed then. Speaking as a layman, what has always been important to me is the principle which has emerged from the history of our judicial system: someone who is accused of an offence should know the case against them so that they can defend themselves. The noble Lord, Lord Pannick, talked about how there is an element of unfairness in what is happening. That is true, but I think it is more fundamental than that. It is not just about unfairness; it is that we are breaching the principles of justice as they have emerged. That is what has happened because of the dreadful and appalling security issues which have arisen. As these procedures are applied, every possible effort should be made to keep the priority of justice at the forefront. Anything that can be done to achieve this should be pursued.

I am fearful that a certain sort of tendency could develop, but it should not be assumed that this is a change of gear which can easily be made in the process of a case. There must be a real and specific reason for doing it, and it should be limited to the fewest possible occasions. Even then, it is terribly important that we are certain that the principle of justice has been very much in the forefront of the minds of the judge and of everybody else before we pursue the technique.

We know that in the cause of combating terrorism and the extremism that leads to terrorism is crucial not to give ammunition to the cynical extremists who seek to exploit the impressionable with plausible argument. I cannot think of anything that has the potential to give more ammunition to an extremist wanting to recruit an impressionable person than for him to be able to say, “Look, there has not been proper justice in this case”. From that standpoint, the arguments we are putting forward are central to the issue of anti-terrorist and security policy itself. I am absolutely convinced of that. The people who have put forward these amendments are doing us a good service in terms of upholding the principles of justice and avoiding the terrible pitfalls of counterproductivity in the fight against extremism and terrorism.

[Baroness Williams of Crosby]

My Lords, I should like to follow the noble Lord, Lord Judd, in what one might call a very short interval for non-lawyers to speak. He has pointed to some crucial considerations that need to be borne in mind. I will turn for a moment to Amendments 58 and 59, which are crucial to a fair outcome of this complicated debate. In doing so let me say that I strongly agree with those who have argued for gisting as a way of moving a bit closer towards a just outcome for those who cannot be openly represented and, indeed, cannot instruct their representatives how to behave. It helps the people concerned feel that some sort of justice has been done.

We heard in the words of the noble Lord, Lord Hodgson of Astley Abbotts, the attempt to define national security in a way that would narrow down the implications to what was really of crucial importance to the nation. The response from my noble and learned friend on the Front Bench showed how difficult it is to make a definition of that kind. However hard we try there are always ways in which it is, as he said, either too narrow or too broad.

In Amendment 58, tabled by my noble friends Lord Thomas and Lady Hamwee, and Amendment 59, tabled by the noble Lord, Lord Pannick, and my noble friend Lord Lester, we have a way of getting back to a balance between what is represented by the need for security and what is represented by, in the words of the noble Lord, Lord Judd, the principle of justice upon which the whole of the British legal tradition has been based. That is exactly right. We have heard a paean of praise to our judges, saying that they are very capable of making difficult balanced judgments of this kind. The attempt to give back to them the decision about what that balance is is one that we can reasonably feel is in competent hands, where justice is likely to be the outcome.

What happens if one does not have Amendments 58 and 59 in this Bill? We have neglected this, or perhaps we had an earlier brief discussion about this at the beginning of the day’s proceedings but we have moved a long way since. What happens if one regards national security as having such a primary place that one forgets the interests of justice almost altogether? An example of it is the attitude of the general public, where they believe themselves to be put in a position of extreme difficulty and inconvenience because of a ludicrous pursuit of security. The noble Lord, Lord Deben, gave us an example of that.

Let me give another one, the way in which the concepts of health and safety are now held in almost universal ridicule by the population of this country. They were an attempt to go too far, to intervene too much, to interfere all the way through, in the ordinary rights and liberties of citizens. When you are told that you have to cut down a chestnut tree for fear of a conker falling on somebody’s head, or when you are told that you cannot allow young boys to try climbing a tree, you get to the point where the general public feel that this is a ludicrous overstatement of so-called security and safety, and they become disinclined to take any notice. That is a trivial example.

There are more serious examples. My political memory goes back quite a long way. In our history we have cases all too often forgotten, where security has trumped fairness and justice and left behind a real weakness in our democracy. Perhaps the supreme example of that was the decision to introduce the principle of internment into Northern Ireland’s politics. Just before this I was the Minister of State for Northern Ireland. It meant two things quite quickly. The first was a strong sense of a breach with what has been a long tradition of this country, at least as far as its internal justice is concerned. Secondly—and I will never forget the words used—this became a recruiting sergeant for terrorism. Even Lord Whitelaw, at that time Secretary of State, noticed how counterproductive internment was and how it led to more and more young Irish men and women letting themselves be recruited—signing up—for the production of terrorism. Internment was brought in in 1971 and was eventually dropped. Only after it was dropped was the path open to the Good Friday settlement and to what today is, if not a perfect, at least a much better outcome of the situation in Northern Ireland.

[Lord Ashdown of Norton-sub-Hamdon]

I have not been here today as much as I might have been and I am grateful to my noble friend for agreeing that I might intervene, but I want to reinforce her point. I was a young soldier on the streets of Belfast in 1970. When we marched into Belfast and into the Ardoyne we were welcomed by the Catholics with butties, as they called them, and mugs of tea. A mere year later, as a result of internment and other matters which followed swiftly around the time of Bloody Sunday, we were the enemy. It took us the best part of two decades to recover that trust among the Irish population, directly as a result of events that she has described.

[Baroness Williams of Crosby]

I am grateful to my noble friend. Nobody knows more directly and more at first hand than he exactly of what he is speaking, given his long and distinguished service in Northern Ireland in several capacities.

A second example that I know about, because I was living there at the time, was that the dreadful atrocity of 9/11 produced a great wave of attempts to introduce more security legislation in the United States. After a while this included a certain disregard for some of the crucial rights of human beings there. American citizens found time and again, understandably given the terrible effects of 9/11, that their fundamental rights began to be disregarded in the interests of security. It was an extraordinarily difficult balance that to this day United States jurists feel strongly has gone against the basic liberties of the human being.

The third example is ourselves. The noble Lord, Lord Deben, spoke movingly about his son and the dog across the street from No. 10 Downing Street. I might add that the Olympics are getting almost completely out of hand in the interests of what one might describe as an obsessive view about security. We go back to rather a trivial example. Yesterday I was in Trafalgar Square with my grandson. We went to see the famous Olympic clock that shows how many hours, minutes and seconds are left before the opening of the Olympic proceedings. However, in order to see the clock, which was approximately 40 yards into the square on a gloomy, wet evening, we had to pass no fewer than six security guards, and no fewer than three detailed and closely networked railings, which were impossible to pass, so we had to go round them in several directions to get anywhere. It took us about 20 minutes to cross Trafalgar Square, being asked all the way whether we had passports, what we were doing there and why, and other things like that. I am a great believer in creating job opportunities for young people, but I cannot help thinking that maybe a job working on, let us say, the refurbishment of older housing might be more constructive than sitting in Trafalgar Square stopping ordinary citizens like me from crossing it.

I am sorry to put it so strongly, but we are becoming obsessive on this issue. We are getting the balance badly wrong. This Bill is critical for the future of our liberties in this country and for the attitudes to justice of ordinary people whose support for that justice is critical in a democracy; there is no substitute for civic support for the rule of law. I plead with my noble friends on the Front Bench that they look closely at Amendments 58 and 59, which at least enable the judges in this country to restore a reasonable balance to the clear needs of national security, which I do not deny and which the noble Baroness, Lady Manningham-Buller, has put extremely well in this debate, recognising that there are two things to be balanced and not one thing to sweep away. I plead with my noble friend to consider accepting these amendments, because they are a crucial safeguard for the liberties of this country and which this Bill ought to include.

[Lord Faulks]

My Lords, it is a great privilege to follow the noble Baroness and I am sorry to bring an end to this welcome interval from lawyers and to return briefly to the dry legalities of the Bill. The question in this Bill of who decides national security has troubled me. Clause 6 seems to suggest that the judge has some role in deciding it. Amendment 59 suggests that an exercise should be performed by the judge in which he or she can assess, by balancing the various processes—presumably roughly in accordance with the ex parte Wiley approach—which should come first, the interests of justice or national security.

Estates of Deceased Persons (Forfeiture Rule and Law of Succession) Bill

Baroness Williams of Crosby Excerpts

Wednesday 15th June 2011 Lords Chamber

[Lord Waddington]

My Lords, as usual, my noble friend Lady Falkner hit the nail absolutely on the head. One effect of the amendment would be that at every general election all parties would be asked to pledge themselves to revive the Act. That is the effect of this amendment. They will so pledge, at their peril, because, make no mistake about it, this Bill will be popular with the public as the public want more say over what is happening in Europe. The public are fed up with Parliament ceding more and more powers to Europe without any consent from the people whatever.

The only difficulty is that there will be a period at the beginning of each Parliament when the Act will not operate. That could cause difficulties and it will certainly not increase confidence in British Governments’ handling of European matters. I would have thought that that was one of the most important matters with which we are concerned in this legislation. We want to increase confidence and not destroy it. I cannot imagine anything more likely to destroy confidence than having a period at the beginning of each Parliament when the safeguard for the British people did not operate. In practice, of course, it will not happen because every single party, as a matter of self-preservation, will say, “Of course we will renew the Act”.

[Baroness Williams of Crosby]

My Lords, I would like to follow the noble Lord, Lord Grenfell, because he has been correct in what he indicated. In debates in this House, we have had a great deal of speculation because we live in a world where we cannot be sure what the future will look like. Increasingly, that is the kind of world in which we live. The noble Lord, Lord Grenfell, who has profound experience, having been, for many years, the chairman of the European scrutiny committee, is absolutely correct in what he says. We are passing legislation which is likely to be tested by coming events in future years and yet we are doing it without giving ourselves any provision for insisting on a review of what we do over the next decade or so.

I shall mention one or two of the speculations that we have discussed in these debates and not agreed upon. One is the proposition which has been advanced on several occasions by the noble Lords, Lord Kerr and Lord Hannay, which is about the possibility that our representatives in Brussels ministerial meetings will find it extremely difficult to support even those things that they profoundly and sincerely believe are in the British national interest because of a fear of setting off a referendum. The noble Lord, Lord Kerr, may be right in that and he may be wrong, but the only way to find that out is by experience over the next few years.

Secondly, there has been a great deal of speculation about whether there will be major new issues that might require an amendment to the treaties. Curiously, the noble Lord, Lord Howell of Guildford, hinted at one such when he talked about the possible major revisions of the European Union Stability Pact. Of course, that applies only to eurozone countries, but anyone who believes that it will have no implications for the United Kingdom must be living in a world a very long way away from the global financial world of which we are a part today.

We are talking about speculations, but that does not mean that we should not pass Acts of Parliament; it means that the case for looking at them and requiring them to be looked at is extraordinarily strong, and stronger than the case for almost any other kind of legislation that one can think of. I differ a little from the noble Lord, Lord Lamont, much as I respect him, because I can think of quite a few bits of legislation, with domestic implications, that would have gained from a sunset clause. There are one or two pieces of legislation all of us today would be only too happy to have seen off the statute book if there had been an opportunity to revisit them, which there so rarely is.

My next point is with regard to the coalition agreement. On this, I address specifically my friends in the Liberal Democrat and Conservative parties. The coalition agreement, in its wisdom, made it absolutely clear that we should be willing to accept a referendum lock on major amendments to treaties. That is what it says. The major amendments to treaties that we talked about in these meetings, and here in debates in the House of Lords, have ranged from changes to the Schengen agreement, changes to the original euro agreement, and changes that might introduce a common foreign policy or a common defence policy. I freely admit that in this Chamber, we are all agreed—I congratulate the Government on persuading us on this—that there should indeed be a referendum lock on this limited number of crucial issues.

It is also clear that many Members of this Chamber are profoundly concerned, as my noble friend, Lord Taverne, pointed out, about the thought that that group of very tightly disciplined and described referenda might drift into a general practice of referenda of a kind that will destroy parliamentary government; to put it in a non-abstruse phrase: adding a kind of Berlusconi sauce to the solid pasta of British parliamentary practice. I, for one, would be most reluctant to go along that track. My noble friend Lady Falkner is quite right to draw our attention to that, but at no point does the coalition agreement come to terms with the idea that now we will be imposing every change in the passerelles to a referendum—not just an Act of Parliament but a referendum. No one in the coalition is obliged to support that because it is not part of what was agreed in that original agreement.

My third and final point is precisely the one made by the noble Lord, Lord Waddington, and my noble friend Lady Falkner and I take exactly the opposite view. It seems to me that one of the great advantages of proposing that there should be a review at the beginning of each Parliament is exactly that that will drive the debate back in the general election itself. What more democratic a structure could one choose to find, one where people would be likely to vote, likely to show an interest, likely to debate the issues before them in television, radio and in the street, than a general election? There is the fact that we would have to agree this legislation again at the beginning of each Parliament, in its very simple and short way, as has been pointed out—the statutory instrument agreed by both Houses. It would take no more than 24 hours, if one wanted to do it that way. The essential point is that no more democratic a process could be found than a general election, in which we should reach a decision on whether we want to continue with this legislation. That is far better than suddenly plucking a referendum out of the air at some point in the Parliament, when most people would be interested in other things and its salience would be low.

So on the grounds of the speculative basis on which we are passing this legislation, of extension of referenda far beyond what our Parliament would want to see and of forcing the general elections to take on a major debate of our relationship with Europe and all the trust that would flow from an election result, I believe that the case for a sunrise and sunshine amendment—I say sunshine deliberately—could not be better argued. I strongly support the amendment in the name of the noble Lord, Lord Kerr, and his colleagues.

[Lord Williamson of Horton]

My Lords, we have had quite a bit of experience recently of sunset clauses, or proposals for sunset clauses—we may keep that to the back of our minds. This amendment would bring Part 1 and Schedule 1 to the Bill, if enacted, to an end at the end of this Parliament. That gives the Secretary of State the power to provide by order, subject to approval of both Houses of Parliament, that the legislation is revived for a further parliamentary period—and so on until the end of time. I did not use the phrase of the noble Baroness, Lady Falkner, about an endless series of sunsets and sunrises because I reserve that to my wishes for the next 20 years for my personal life.

What is the purpose of the amendment? It is to provide an opportunity to monitor the legislation, to see how it is operated, if at all, and to see public reaction, in particular whether it has succeeded in its principal objective of improving the connection between the public and the work of the European Union. I would be very interested in that. If this legislation goes through, we would like to see an improvement in that connection and the legislation is directed to do that—let us see if it has made progress in that area. If the legislation is judged to have been successful, it is of course a relatively simple matter to continue it for a further period.

This clause does seem appropriate in this Bill, which is a constitutional innovation, switching from Parliament to national referendums the decisions on a list of issues, and for that reason I support Amendment 35.

Parliamentary Voting System and Constituencies Bill

Baroness Williams of Crosby Excerpts

Monday 24th January 2011 Lords Chamber

[Baroness D'Souza]

My Lords, I speak on behalf of the Cross-Benchers. It will come as no surprise that there is deep concern among us about the breakdown in the conventions and procedures of this House. I thank the Leader, the noble Lord, Lord Strathclyde, for his words today, but would like to muse a little further on the possible consequences for this Chamber.

Scrutiny is our job, but I doubt that a reasonable person would conclude that the speeches in the dark hours of the night last week, and maybe even again tonight, represent scrutiny or sensible revision. We are therefore forced to believe that it is the Opposition’s intention to delay the Bill beyond the date on which it would be possible to have a referendum: 5 May.

Many Cross-Benchers, of course, hear the justifiable worries that the Opposition have expressed about the lack of scrutiny of certain parts of the Bill, and I am sure that we acknowledge the difficult combination of two contentious issues for reasons of political expediency. We recognise that the date of 5 May was always, to say the least, an unhelpful goal. I think everyone would also agree that there is some legitimate question about whether the Salisbury/Addison convention really should apply to this Bill.

Despite all this, I hope that I am expressing the views of the majority of Cross-Benchers in saying that the tactics that the Opposition are using to delay the Bill fly in the face of the conventions that have governed this House for perhaps the past six decades, that these tactics undoubtedly bring this House into disrepute, that any success of such tactics may well encourage their further future use, and that these factors put together may even mark the beginning of the dissolution of this House. I say this with some reluctance—even to me, it sounds somewhat dramatic—but I believe it to be true. Why would the public, let alone the other place, choose to support a Chamber that is seen to be deeply unserious in undertaking the role of revision and scrutiny? We are at a dangerous crossroads.

As everyone knows, the Cross-Benchers are fastidiously independent and non party political. What I say is absolutely not anti-Opposition; indeed, as has been said and was shown by Cross-Benchers in this House last week, we very often support the Opposition in their valuable amendments. No, our collective concern—for once, perhaps we are acting as a group—is that the self-regulation and fundamental tasks of this House are sufficiently valuable to be preserved. We therefore both understand the need for and urge that there be significant compromises on both sides of this House so that we may proceed with dignity and resolve.

[Baroness Williams of Crosby]

My Lords, what the noble Baroness, Lady D’Souza, has just said is of extreme importance. She has summed up very well what is at stake in an issue that has far greater repercussions than the source of the differences between the two sides of the House. We do indeed put at risk the whole reputation of the House of Lords as a place of intelligent and thoughtful discussion, where from time to time essentially bipartisan considerations give way to the greater needs of the constitutional issues that affect the United Kingdom and its people.

In that context, observing this as someone who has not taken detailed part in the debate, it seems clear to me that there is some room to move on both sides. I suggest that one of the issues that might be moved on is that of giving slightly more discretion to the Boundary Commission on constituencies with a natural community. The House’s choice on the issue of the Isle of Wight showed how strongly it shares that view, and it is only sensible to do that within the narrowest conceivable limits, which basically means equal-sized constituencies while recognising that some issues have to be given rather more discretion than the present Bill gives them.

In exchange for that, it is vital that the Opposition accept their responsibility and cease to create what is in effect a filibustering lobby—for that is what it is. It is high time, speaking as someone who cares very much about this House as an essential element in a sensible, thoughtful and responsible democracy, that it is accepted that there should be some relatively small movement on both sides so that we can get an agreement and decision on this issue within the next few days and, to put it bluntly, cease to lose the respect that we so much need, and usually deserve, from the rest of the country.

[Lord Pearson of Rannoch]

My Lords, I have given notice that I again wish to propose that we do not continue with these proceedings at all. I hope for a more helpful answer today than the one I was given last Wednesday. I have been encouraged to try again by several noble Lords who have told me that the brush-off that I was given last week was really most unsatisfactory and not at all in accordance with the convention of your Lordships’ House that the Government at least try to answer questions; they should at least make a fair stab at it, even if they do not like the answer.

My question last week was simply whether it was it was sensible to break our traditions and spend so much time and energy debating the method by which Members are elected to Parliament when so much power has been passed to Brussels that they can do very little when they get there. My question today goes further, and I touched on it in the first Oral Question today: if we are to have a referendum on anything, why is it not to be on what the British people have been promised, which is whether or not we want to stay in the European Union? After all, such a referendum was given as a cast-iron guarantee by the Prime Minister during the run-up to the Lisbon treaty. The leader of the Liberal Democrats, and this sews up the coalition Government quite nicely, actually walked out of the House of Commons—some would say flounced—because he was not allowed a vote on whether we wanted to stay in or leave the EU. Such a referendum was also in his party’s manifesto.

Why are we wasting so much time on a referendum to which the public are supremely indifferent while denying them one that they have been promised and which 85 per cent of them say they want? Surely the Deputy Leader of the House must agree that this sort of procedure, together with the regrettable filibuster that is clearly being mounted by Labour Peers, can do nothing but harm to the reputation of your Lordships’ House. Can it do anything but make the British people despise their political class even more than they do at the moment? Here I entirely share the sentiments and the words of the noble Baroness, Lady D’Souza.

I add my thanks and those of my party to all the staff in your Lordships’ House, who are behaving with such amazing fortitude and courtesy throughout these regrettable proceedings. I fear that we do not deserve such service if we continue.