Chilcot Committee: Intercept Evidence

Lord Elystan-Morgan Excerpts

Tuesday 24th July 2012 Lords Chamber

[Lord Henley]

My Lords, it is for the committee of independent privy counsellors, the Chilcot committee, to consider what it can publish. I will certainly look to see whether there is anything that HMG can say, but I am not sure that there is at this stage. We want to get there; my noble friend knows we want to get there since she knows that it is part of the coalition agreement. However, I repeat that it is very difficult.

[Lord Elystan-Morgan]

My Lords, does the Minister not agree that, so far as most countries in the developed world are concerned, particularly the English-speaking world—Australia, New Zealand, Canada and the United States—such evidence is admissible and used to good effect day in and day out? Why is it that, for the past 26 years, successive Governments have set their face so intransigently against the use of such evidence in our courts?

[Lord Henley]

My Lords, the noble Lord is correct to point out that there are other countries that have similar common law legal systems that do use intercept as evidence. They do not have the constraints of the European Court of Human Rights—a point that ought to be made to the noble Lord. As I said, all Governments have been trying to get there since 1993. It is going to be a very long road.

Olympic Games: Security

Lord Elystan-Morgan Excerpts

Monday 16th July 2012 Lords Chamber

[Lord Henley]

My Lords, working backwards through my noble friend’s questions, if people do not have the appropriate language skills, they will not get accreditation to work. I cannot comment on whether the computer has not been working at the moment but I will make inquiries and let my noble friend know. As for who is in charge of the overall security operation, obviously, in the end, my right honourable friend the Home Secretary is in overall charge and that will cascade down through all the usual people below her. The Armed Forces will report to their individual officers, but others will be involved in the process working out. G4S employees will obviously be a responsibility for G4S, but they must be properly accredited before they begin to work on such matters.

[Lord Elystan-Morgan]

My Lords, I raise two questions of a legalistic nature. First, when the contract was placed with G4S, how many other bodies, agencies or companies were in any way shortlisted for consideration? Secondly, the Minister has assured the House that G4S intends to compensate in full any losses suffered. Is that a term of the contract? Was it a penal clause or is it an aspiration on the part of G4S?

[Lord Henley]

My Lords, I do not have the details of the contract in front of me, but I can once again give the assurance that G4S has made it quite clear that it will meet the extra costs resulting from the errors that it has made. I can categorically assure the noble Lord that there were others who bid, but I am not in a position at this stage to say who they were.

Justice and Security Bill [HL]

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Monday 9th July 2012 Lords Chamber

[Lord Carlile of Berriew]

At the moment I am dealing with the amendment proposed by the noble Lord, Lord Campbell-Savours. I listened with great care to my noble friend Lord Henley from the Front Bench, and I am very content with the approach that he has taken. We should wait and see what the Government come up with in answer to the noble Lord, Lord Butler, who has great wisdom and experience in these things—I am completely open-minded about that. But I am not happy with the idea that we should have a conventional Select Committee or, even worse, a Select Committee whose rules have been fiddled with for this purpose.

[Lord Elystan-Morgan]

My Lords, like many Members I have been greatly impressed by the contribution made by the noble Lords, Lord Campbell-Savours and Lord Carlile. Both have the gift of being able to articulate their views with awesome clarity and very great force. If one had to, I should find it somewhat difficult to decide which one is correct in this matter. However, in respect of this debate and the earlier Amendments 1 and 2, it seems that everybody’s objectives point very much in the same direction.

In the first instance is the desire for sovereignty and independence for this particular body. By sovereignty one means that it is an organ, extension and delegation of Parliament, to such a degree that, as far as the Bill of Rights is concerned, it would be unchallengeable in the courts. I think that we are all agreed on that matter. At the same time, it has to be independent of the Executive and Prime Minister, which means that it should be, to use a canine expression, the watchdog of Parliament rather than the poodle of the Prime Minister. It is much easier to enunciate that principle than to work it out exactly because, by definition, the Prime Minister and to a large extent the Home Secretary has a constant flow of intelligence information, which will simply not be disseminated generally.

My other point relates to Select Committees. I listened carefully to the noble Marquess, Lord Lothian, and believe that the concept of a Select Committee is sufficiently broad and flexible to allow a great deal to be done of the nature suggested by the noble Lord, Lord Campbell-Savours. I would have thought that a Select Committee could always decide whether to sit in public or not and, if so, on exactly what terms. A Select Committee can decide whether a single word of its report is to be published or whether there is to be general publication, subject to sidelining. Sidelining, of course, can be a severe sanction. I will never forget the day, in about 1967, when I was a Member of the House of Commons and that flamboyant and splendid Member of Parliament Tam Dalyell was hauled before the House to answer a serious charge of contempt. It related to a Select Committee that was looking into the affairs of Porton Down, a most delicate situation as we all appreciate. There was an awesome hush; it was almost like a public flogging. There was the miscreant standing ashen-faced at the Bar of the House. It taught me a lesson about the tremendous and terrible jurisdiction that the House of Commons has, if it wishes to use it in a situation like that.

Where do we arrive? First, at a body that is not appointed by the Prime Minister; secondly, a body that is unchallengeable in the courts; and thirdly, a body—possibly a Select Committee—that is able to do its work with the confidence of the public, and yet able to maintain an absolute confidentiality which is so important to its very function.

[Lord King of Bridgwater]

My Lords, I agree very much with the noble Lord that—as the noble Lord, Lord Butler, said—there is no argument about the ends. We need to establish public confidence in a very important committee which has a very important role in overseeing the intelligence agencies and which clearly has to be regarded as being in a different world from the other areas of responsibility that Select Committees deal with. This is a difficult issue and a number of interesting points have come up during this debate which I had not anticipated. One point, made by my noble friend Lord Lothian, was the implication that this must involve, as I understood it, a majority of public hearings. My understanding is that the Defence Select Committee, particularly when discussing our nuclear deterrent, goes into secret session and there has never been any problem with that. I am not aware of any leaks from any of those proceedings. However, it is a challenge. The noble Lord, Lord Campbell-Savours, might remember that when we tried to meet totally in secret, as we did, I tried to see whether there was some way that we might at least have a public hearing. I certainly saw the risk, exactly as posed by my noble friend Lord Lothian, that if you were not careful you would end up with prepared questions and prepared answers—all planted—and it would be just a stage show, which would not carry much credibility.

As for the challenge about how we achieve this balance, I reflected on a bit of history. When Sir Anthony Blunt had to be outed at the beginning of the 1979 Administration of the Prime Minister Margaret Thatcher, there were considerable debates about whether it was time to have some sort of committee. Jonathan Aitken got quite a bit of publicity for being in this particular session when he stood up and said that,

“one debate and one Written Answer do not add up to adequate and continuing scrutiny of the Security Service”.—[Official Report, Commons, 21/11/79; col. 446.]

I think we would all agree with that. He said the Government should take the initiative and if they did not move to establish a “senior and more cautious” committee of privy counsellors, then in a different Parliament—perhaps one dominated by left-wing Back-Benchers—a more intrusive, less sympathetic Commons Select Committee might be set up.

Crime and Courts Bill [HL]

Lord Elystan-Morgan Excerpts

Monday 28th May 2012 Lords Chamber

[Lord Elystan-Morgan]

My Lords, this has been a most excellent Second Reading debate. I, like so many other Members of the House, I am sure, have found it a most enriching and educating experience. It is yet again a case of a Government bringing in at least one miscellaneous provisions criminal law Bill a year. I think this must be true over the past 25 years, possibly even longer. On previous occasions I have been irreverent enough to suggest that some day we should have a Bill of Rights and a written constitution, and that the obverse of that Bill of Rights should be that a Government should be allowed only one miscellaneous provisions criminal Bill every two years. That was an academic point when made in earlier years. It may now be much more relevant, in light of the fact that Clause 2 of the House of Lords reform Bill has been demolished by the Richard committee and that there may well be a unanimous view that only a written constitution can prevent two elected Houses committing mutual strangulation.

Be that as it may, at this late hour I will confine my remarks to Clause 17. As the House will know that clause deals, first, with the creation of a single, unified county court for England and Wales and, secondly, the creation by subsection (3) of a family court. I was most interested to hear what the noble and learned Baroness, Lady Butler-Sloss, said about her late brother Michael and his most progressive and pioneering views, which he articulated in the early 1980s, in relation to a family court.

On the question of a county court, doubts have been raised as to exactly what is achieved by this. The county court has a fascinating history. It is of Anglo-Saxon origin, probably predating the Norman conquest by a couple of centuries, but it is a very different body from a criminal court as such, dealing with criminal and civil matters. Indeed, it was almost rendered unnecessary and irrelevant by the assize system of Henry II in the 12th century. The County Courts Act 1846 created a small claims court, something entirely different from the earlier county court. It was a very modest development, and in the 176 years since then it has grown out of all proportion and beyond all imaginations.

That is the point that I make in relation to whether there should be unification. The strongest claim for bringing together the 170 individual courts—this rich patchwork quilt of little fiefdoms—into one court is brought about more than anything by the fact of the tremendous development that there has been in that court in the past 20 or 30 years. Thousands of heavy, complex cases, which normally would be heard in the High Court—the High Court would never be able to handle anything like that with its present membership—have been successfully handled by the county court, in many cases by circuit judges sitting as deputy High Court judges, but in many cases by ordinary circuit judges. Therefore, one has to take that very much into account.

The noble Lord, Lord Thomas of Gresford, asks the question of exactly what it will achieve—what is the added value? It seems to me that one can put the case in the following fairly balanced way. There are obvious advantages to using the human and material resources of those 170 courts to the best possible effect but there are two very substantial difficulties and dangers. We had a cull of the county courts in England and Wales some two years ago. I forget exactly how many were lost but dozens disappeared.

Under Schedule 9, which deals with this particular reform, the Lord Chancellor will have massive powers to decide which county courts exist or not. He will decide where this conjoined, unified court for England and Wales will sit, and there may well be a further cull. I appeal for the particular consideration of rural areas, which the noble Lord, Lord Thomas of Gresford, and I know very well, where the travelling distances involved for people who do not have private transport are so immense—very often half the day is taken up with two or three bus or train journeys—that one has to take into account that justice will be denied to people who live in those areas unless one maintains broadly the structure that we have at the moment.

One other matter is illustrative of what can happen with centralisation. It happened two or three years ago, when the Lord Chancellor decided that all bulk issues should take place through the Salford County Court. This meant that hundreds of thousands of processes were commenced there on behalf of bodies that were of national stature. The effect of that on the viability of other county courts could be immense, making any profit and loss trading account considerations largely irrelevant. There was no consultation at all with the Welsh judiciary, local government or the managers of county courts. It should never have been done in that way. If it is humanly possible in some way to revisit that situation, I will be very glad to see it dealt with in a fair and balanced way.

I come now to the question of the family court. Yes, this development has been waiting at our door for a very long time. I have no doubt that it is to be welcomed. I do not think it revolutionary. As a circuit judge for many years, dealing with cases that had commenced in the county court, I found it easy to send them either up to the High Court or down to a magistrates’ court. There is nothing revolutionary in this at all, but again there is the power of the Lord Chancellor to decide exactly what shall be heard at which courts and at what level. Those powers are very considerable.

I end with the obvious point that the setting up of a family court creates a new forum but does not deal with the dozens of issues now coming to the boil in relation to family matters. I refer in particular to the Munro report, the Narey report and the remainder of the Northcroft report. Dozens of pioneering and progressive decisions have to be made. When the Minister comes to sum up the debate, I would welcome some indication as to what the timetable might be. I pay tribute to the Government tonight for having examined so many of these major reforms in a sensitive and careful way. It would be entirely wrong to tack any of them on to latter stages of the Bill. However, I would like some idea of the order of priority and the possible timetable.

Police: Reduction in Numbers

Lord Elystan-Morgan Excerpts

Wednesday 23rd May 2012 Lords Chamber

[Lord Henley]

My Lords, my understanding is that the noble Lord is thinking of standing as police and crime commissioner for Humberside, and we wish him well in that job. He will then no doubt make the right decisions for that force. He knows, I know and the House knows that simple matters of numbers and the amounts of money spent are not the right thing. The important thing is to make sure that the right people are doing the right job at the right time, and that is what we want to make sure is happening. I am sure that that is what the noble Lord will want to make sure is happening should he manage to be elected as police and crime commissioner for Humberside.

[Lord Elystan-Morgan]

My Lords, the Minister referred to the function of the police in combating crime, and undoubtedly that is a major role. But would he accept that the duty of the police goes much wider than that? It is essentially to preserve the Queen’s peace, which is much wider in its function than the mere combating of crime.

[Lord Henley]

The noble Lord is absolutely correct, but it is still a matter of making sure that the right people are doing the right thing at the right time. That is why I am making it clear that it is not simply a question of the number of police officers we have at any time but of their deployment by the chief constable of any given constabulary.

Police: Misconduct and Corruption

Lord Elystan-Morgan Excerpts

Tuesday 15th May 2012 Lords Chamber

[Lord Henley]

Despite the fact that the noble Lord was involved in the passage of the Bill, he has not quite understood the role of police and crime commissioners. I think he might go back to the passage of that Bill and have a look at it. As I have made clear, the right to complain about what the police are doing and to make inquiries will remain as it was under the 2002 Act, as passed by the previous Government.

[Lord Elystan-Morgan]

My Lords, I was a junior Minister in the Home Office more than 40 years ago. In many cases that did not call for draconian statutory intervention on his part, the Home Secretary used the Inspectorate of Constabulary as a subtle conduit to convey the disapproval of the Home Office and sometimes something harsher than that. Does any such institution operate currently?

[Lord Henley]

My Lords, my right honourable friend can make use of Her Majesty’s Inspectorate of Constabulary; that is still there. However, the important point, which the noble Lord ought to remember from his time, although things have become more independent since, is that people can make complaints to the police but, if they want to ratchet them up thereafter, such complaints should be made to an independent authority. That is why, in 2002, legislation was changed under the previous Government to bring in the Independent Police Complaints Commission. It must remain independent. If my right honourable friend can second-guess what the IPCC does, it will very quickly cease to be independent.

Police: Race Relations Policies

Lord Elystan-Morgan Excerpts

Monday 30th April 2012 Lords Chamber

[Lord Henley]

My Lords, the noble Baroness makes a very valid point and one that I am sure is taken into account in initial and all further ongoing training.

[Lord Elystan-Morgan]

My Lords, does the Minister agree that successive Governments, probably over the last 40 years, have found it extremely difficult to recruit the maximum number of officers from among ethnic minorities? Can he assure the House that the greatest effort will be made and the heaviest emphasis placed upon this crucial factor?

[Lord Henley]

My Lords, I can say that great progress has been made over the last 40, 30, 20 and even 10 years on increasing the diversity of the police force so that it better represents the areas that it covers. That will obviously vary from Wales to the Met. I can also tell the noble Lord—and this is important—that the figures from black and ethnic minority communities on their satisfaction and confidence in our police forces seem very similar to figures from white communities.

Alcohol: Minimum Pricing

Lord Elystan-Morgan Excerpts

Tuesday 27th March 2012 Lords Chamber

[Lord Henley]

My Lords, we do not want to stop people drinking alcohol in a perfectly legitimate manner. I accept my noble friend’s medical advice that it is a poison, but it is one that we have grown accustomed to over the years. What we want to avoid is excessive consumption of the sort that leads to disorderly scenes in some of our town centres, which I referred to in my answers to the earlier Question.

[Lord Elystan-Morgan]

My Lords, does the Minister recollect that in replying to the first Question, he very sensibly said that the price of alcohol was only one weapon in the armoury of the Government in seeking to tackle alcohol abuse? Is it the case, as I believe it is, that for the last 100 years or so it has been a criminal offence on licensed premises for drink to be sold to or for a person who is already inebriated? If that is the current law, has it not fallen into desuetude? Will the Government concentrate on that? It could be a very potent weapon.

[Lord Henley]

The noble Lord understands the law very well. He is absolutely correct in that. These are matters for enforcement and we think that they should be taken up by the police and, subsequently, the licensing authorities. It is possible to remove the licence from an individual or a pub if it sells alcohol to someone who is obviously inebriated.

Public Disorder: Compensation

Lord Elystan-Morgan Excerpts

Tuesday 13th March 2012 Lords Chamber

[Lord Henley]

My Lords, the noble Baroness makes a valid point, and I pay tribute to the work that she did earlier on these matters. However, it is also important to look at the fact that those who were not insured were the sort of people who probably did not have adequate records about what they had in their shops—and I am thinking particularly of shops—and one therefore needs to conduct the loss-adjustment process very carefully. As she will know, people often make what one might describe as overgenerous claims when they do not have the appropriate records of what they had in their particular shop or business, and those things need to be looked at carefully. However, as I made clear in my response to my noble friend, it is important that we make sure that the police deal with these matters as quickly as possible. That is what we have been urging them to do and that is why we have set in motion a number of measures to speed up the process.

[Lord Elystan-Morgan]

My Lords, can the Minister assure the House that in the review of the 1886 Act not only will great effort go into defining the categories of claimants and types of claim but anxious thought will be given to the most central and existential question of whether it should be police authorities that bear the full responsibility for such damages, bearing in mind that the society in which we now live differs very greatly from that of 1886?

[Lord Henley]

My Lords, when I first answered this Question I was keen to emphasise that it was an 1886 Act. For that reason, the noble Lord is right to emphasise that we are in a very different world from 1886—it is now 125 years on from that date. All I can say about the review is that we will consider all options for reform. Perhaps I may give just one example. The 1886 Act, quite obviously, did not look at damage to motor vehicles, for the very simple reason that they did not exist in 1886.

Protection of Freedoms Bill

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Wednesday 15th February 2012 Lords Chamber

[Lord Elystan-Morgan]

My Lords, I greatly applaud and welcome this amendment in the name of the noble Lord, Lord McColl, and its other signatories. I also appreciate very much the humanity and sensitivity shown by the Minister. The noble Lord, Lord Henley, if I may say so, has added to the very great respect and admiration that the House already has for him. The problem is one which is a stain upon the honour of this community. These trafficked children are the most vulnerable imaginable, while their state is the most pitiable imaginable—and yet our system fails them. Morally, our responsibility is immense and could not be greater. Legally, the responsibility has already been spelt out. As many of us know, in Part III of the Children Act 1989 there is Section 17, which requires a local authority to be responsible for a child in need, and Section 20, which requires it to accommodate a child who needs accommodation.

If I may turn to the Welsh language for a moment, there is a saying: “Dyw mater pawb yn gyfrifoldeb neb”—the business of everybody is nobody’s special responsibility—and that is the whole issue here. Somehow or other local authorities, which I know have responded well within the realities of the difficulties which they have, find it difficult to do exactly what they should in relation to these children, with the result that a very substantial proportion escape the protection which they so gravely need. In those circumstances, I believe that the amendment is excellent. It concentrates the mind, as Dr Johnson might have said. It places a focus of responsibility which is not already there in Part III of that Children Act.

It may be that the amendment is not perfect. That does not really matter, as its thrust is obvious and honourable. I had the very great privilege 43 years ago, if your Lordships can believe it, of taking the Children and Young Persons Bill through another place. I remember being thrilled then by one of the expressions in that legislation, about the responsibility of a local authority towards a child who was in its care to befriend. We have heard that expression already, but I do not think that it appears in fact in the amendment. However, I am sure that it could be incorporated in legislation in this context. I therefore feel that we are doing something which is essentially moral and good. We are supplementing a lacuna which exists not so much in the law as in the way in which local authorities have reacted to their duties in this case. It is very much to the credit of this community that it shows that sensitivity in relation to what is a very worthy cause.

[Lord Anderson of Swansea]

My Lords, I am very aware that those who push against an open door are liable to fall on their face. I suppose the trouble here is that we do not know how open the door is, given the assurance that the Minister made. However, having regard to the way he responded so humanely to the Second Reading of the Bill brought by the noble Lord, Lord McColl, on 25 November and the amendments that the Government have subsequently made, we can be confident that he will be doing his very best concerning this evil practice and to ensure that the real needs of this vulnerable section will be adequately met. We give two cheers at the moment—we hope that there will be three cheers—but I suppose that there is a problem in how the report of the Children's Commissioner will be put into legislation, given that it will presumably be received well after this Parliament has ended. Perhaps the Minister could comment on that point.

I also congratulate the noble Lord, Lord McColl, who, as has already been said by my noble friend Lord Judd, has shown his own compassion in West Africa by his presidency of Mercy Ships. He has indeed shown himself to be committed and flexible; for example, he has listened to concerns about the former subsection (1)(c), which in my judgment could certainly have been misused for illegal immigration. The key point in subsection (1) is that the main consideration is the welfare of the child. There is no doubt about the nature of the problem. They are bewildered, vulnerable children. The Children's Commissioner's report of last month, Landing in Dover, shows some of the failings of the current system. I am sure the Minister concedes that that system is far from adequate. We need to confront it. The noble Lord, Lord McColl, has put forward a proposal that might help the Minister in terms of public funds. It may be that local social services departments can provide adequate help but, if not, the voluntary spirit will be available, as the noble Lord, Lord Wei, said.

Clearly, there are concerns about the potential volunteers. Is the problem manageable? I submit that it is, given the relatively small number of children who are trafficked. Equally, there must be some concerns about the adequacy of the training. I do not wholly accept the precedent of magistrates. Yes, magistrates are amateur, but they have training and the legal clerk is always there to advise them on the law. The volunteers, it is said, are available and there is a great spirit on the part of non-governmental organisations to be ready to help. I hope that the training will indeed be adequate. Of course many social workers do not in any event have specialist training in this field.

That said, we travel in hope. I believe that the Government and indeed the noble Lord, Lord McColl, whom I congratulate again, have set out proper criteria based on the UNICEF guidance. I believe also that Greco —the Council of Europe organisation which is going to mark the Government in terms of their adherence to the obligations under the Council of Europe convention—is more likely to give a very positive report when it comes to comment on the Government's conduct in May or June of this year.