Queen’s Speech

Lord Falconer of Thoroton Excerpts

Monday 1st June 2015 Lords Chamber

[Lord Falconer of Thoroton (Lab)]

My Lords, I congratulate the noble Lord, Lord Dunlop, on his maiden speech and on his new role as Parliamentary Under-Secretary of State for Scotland. He studied politics and economics at Edinburgh University under the former Labour MP for Berwick and East Lothian, Professor J P Mackintosh, who appears to have had only a mixed influence on him. He worked for Mrs Thatcher’s inner circle as one of the seven members of her policy unit where, for two and a half years, he played a key role in the introduction of the poll tax in 1989. He was appointed the Prime Minister’s adviser on Scotland in March 2012. He is a distinguished and capable individual and will be a real contributor to your Lordships’ House. He is not to be confused with the Andy Dunlop of the Scottish band Travis, whose best-known album is “The Man Who”—even though he, the noble Lord, Lord Dunlop, is the man who brought the poll tax to Scotland

I congratulate also Michael Gove on his appointment as Lord Chancellor and Secretary of State for Justice, and I welcome the noble Lord, Lord Faulks, who has been restored to his position as Minister for Justice. The noble Lord, Lord Faulks, will have his work cut out. He is caught between the Home Secretary and the Lord Chancellor, both of whom, according to the Daily Telegraph this morning, want to leave the European Convention on Human Rights. The Home Secretary, noble Lords will recall, thought that Article 8 of the convention applied when you had a relationship with your cat; and the Lord Chancellor wrote, before he became an MP, that abolishing the death penalty has,

“led to a corruption of our criminal justice system, the erosion of all our freedoms and has made the punishment of the innocent more likely”.

So the senior members of this Government may need some guidance from the noble Lord, Lord Faulks, as to precisely what the law and the constitution mean.

The gracious Speech is billed as a one-nation speech. A serious one-nation policy programme would be a set of proposals to bind the nation together: Scotland with the rest of the United Kingdom, unions and employers, rich and poor, young and old, north and south, London and the rest. These proposals would encourage individuals and businesses to realise their potential to the full while providing proper support and protection for those who need it.

In the areas we debate today—the constitution, the law and devolution—the gracious Speech contains proposals which are divisive and motivated by short-term political advantage rather than long-term national benefit. There are proposals to introduce new standing orders for the Commons which will create two tiers of MPs by giving English MPs a veto on laws which apply to Scotland only—a dangerous further wedge between Scotland and England; proposals for the repeal of the Human Rights Act which will reduce the ability of those who find themselves the victims of state abuse adequately to defend themselves—a retreat to creating further division between government and governed; proposals which may involve the Human Rights Act continuing to apply in Scotland and Northern Ireland but not in England and Wales—a further wedge between England and Wales on the one hand and the rest of the United Kingdom; proposals to make it more difficult for the unions to donate to political parties and ballot their members while doing nothing to increase the transparency of donations by private donors to political parties, particularly the Tory party—a wedge between the rich and the rest.

There are no proposals to deal with the damage done in the last five years in the area of justice—for example, the decision to take the overwhelming majority of social welfare law out of the scope of legal aid. Now it is no longer possible to obtain legal aid in the areas of welfare benefit law; employment law; housing law, except possession cases; debt law; and much of immigration law—relevant to all but particularly to the poor, the marginalised, the vulnerable and the disabled. There are also no proposals to deal with the imbalance in registration of voters. The young, the renters, those who do not own their own homes, the poor and those from minority ethnic groups have the highest levels of non-registration—and, among those from these groups who are registered, of non-voting. We must be vigilant to ensure that our elections truly are one-nation elections.

In the last election, for example, 43% of those aged between 18 and 24 who were registered to vote voted, whereas 78% of those aged over 65 did so. I am glad that the turnout was so high among the over-65s. I worry that the Government will not be a Government for the young. Of the 43% who voted in this youngest age group, only around a quarter supported the Conservatives—so the Conservatives have the support of maybe 12% of those aged between 18 and 25.

This summer, the Government must decide whether to bring forward to December 2015 the end date for transitional arrangements for individual electoral registration. If they do, yet more people will be removed from the register, mostly from the vulnerable categories. The gracious Speech contains no proposals of any sort on this.

I will move on to the things that the gracious Speech does deal with. The first is human rights, which is the Lord Chancellor’s responsibility. He was Secretary of State for Education. He fell out with his civil servants. The Permanent Secretary left shortly after his appointment. His special adviser was vitriolic about practically every other part of the Government, including the Prime Minister and the Deputy Prime Minister. He characterised those who opposed his policies as “the Blob”. A member of the Department for Education advisory group said of his department that,

“they don’t think things through very carefully, they don’t listen to anyone and then just go ahead and rush into major changes”.

He was removed as Education Secretary as Lynton Crosby regarded him as too toxic. He lasted around a year as Chief Whip.

The office of Lord Chancellor is not a job creation scheme for a valued colleague of the Prime Minister who has found ministerial office difficult. Those who depend on our justice system—and there are very many—need to have faith in the person in charge. It is important here, and for our standing in the world, that the person in charge understands the United Kingdom’s values, and in particular the central importance of the rule of law and what it means. The system exists not for the lawyers, the politicians or the judges, but for those it seeks to protect.

In the other place on Thursday of last week, the Lord Chancellor was asked three times whether the Government would leave the European Convention on Human Rights. He refused to answer. I read in the Daily Telegraph this morning that the Lord Chancellor and the Home Secretary want to pull out of the convention, and the Prime Minister wants to stay in—hence the Lord Chancellor’s evasions in the Commons last Thursday. I back the Prime Minister against the Lord Chancellor.

In the same speech, the Lord Chancellor dismissed those who defended the current human rights laws as being like Fat Boy in The Pickwick Papers, who liked to make your flesh creep. Despite my best efforts, I will for ever be Fat Boy—on this occasion, fat and proud.

I wonder if the sisters of Anne-Marie Ellement would agree with the Lord Chancellor. She was a member of the Military Police. She alleged that she had been raped by two members of the Military Police, and thereafter she was bullied for making the allegation. She killed herself. At the first inquest there was an inadequate investigation of what had happened. Only by relying on the Human Rights Act were Anne-Marie’s sisters able to get the court to order a second inquest, where the truth emerged. That protection would go if the Conservatives get their way as set out in their October 2014 document; the new human rights law would not cover the military.

The US Government wanted to extradite Gary McKinnon to stand trial for allegedly hacking into US military computer systems from his bedroom in the United Kingdom. The evidence was clear that if he was deported to the United States, his health was so bad that he was at very severe risk, including the real risk of suicide. Only the Human Rights Act allowed the Home Secretary to stop his deportation. That is another of the particular aspects of the Human Rights Act that the Tory document of 2014 wishes to remove.

The Government say that they do support human rights, but that they should be British human rights. “British human rights” appears to mean, “the British Government’s view of human rights”. That means the Executive, since to a large extent it is the Executive who control the legislature. According to their October 2014 document, the Conservatives will reintroduce the rights in the same wording as the convention rights, but make it clear that there are aspects of those rights that they will specifically exclude. Examples include the prohibition on deportations if the deportee would be tortured or killed—those deportations could go ahead—or the application of human rights law to the military. An Executive able to pick and choose the extent to which human rights apply is an illusory protection. If we are serious as a country about providing our citizens with protection, we should not consider this course. The importance of there being an authority—not one that interferes with UK sovereignty but external to the UK Government—which defines the limits of human rights is that it prevents human rights becoming what a Government say they are.

One aspect of the Conservative attack on the human rights settlement as it currently exists is that the Conservatives say they want to prevent the European Court of Human Rights overruling our own courts. In his speech in another place on Thursday, the Lord Chancellor said:

“We want to preserve and enhance the traditions of human rights. There will be no diminution in that area; indeed there will be an enhancement of convention rights as a result of the changes we propose to make. But the difference”,

is that:

“We want to ensure that they are consistent with common law traditions and that our Supreme Court is genuinely supreme”.—[Official Report, Commons, 28/5/15; cols. 291-92.]

It is difficult to know what he means by “enhancement” when all the proposals so far produced by the Conservatives involve a reduction in rights.

Further, his reference to the Supreme Court being “genuinely supreme” betrays a misunderstanding of the current position. The UK courts are the final arbiters of what UK law provides, including human rights law. There is no appeal from what the UK courts say UK law is. The UK Supreme Court has been clear that it will not treat itself as bound by decisions of the European Court of Human Rights and has departed from European court decisions when it has disagreed with them. So both in form and in reality the UK Supreme Court is supreme, and if the European Court of Human Rights finds the United Kingdom to be in breach of the convention, the European court cannot overrule either the UK courts or Parliament. All the European court can do is to determine whether there is a breach of the convention—and if there is, it is for the UK Parliament to decide how to remedy the breach. I am glad that the Government have paused and I urge them to abandon these proposals. If they do not, my party, the Commons, this House, and maybe even Fat Boy Cameron will resist them.

The Government’s approach to the Human Rights Act is just one example of how they are willing to risk not just our standing in the world but the relationship between the nations of this country for narrow partisan interests. We need further devolution to Scotland, Wales and the English regions that is fair and lasting, and is done in a way that builds the broadest possible consensus. We are committed to ensuring that the vow is delivered in full, which means keeping the Barnett formula, alongside more powers to make the Scottish Parliament one of the most powerful devolved parliaments in the world. My colleagues in the Commons have already vowed to amend the Scotland Bill to give the Scottish Parliament the final say on some additional aspects of welfare and benefits.

We must also put Welsh devolution on a stronger statutory basis, and we agree with taking forward proposals from the Silk commission. However, we think that the Government should make sure that Wales is not unfairly disadvantaged by the Barnett formula and ensure a fair funding settlement for Wales by introducing a funding floor.

We welcomed many aspects of the Stormont House agreement, but the current stalemate on welfare reform, and the financial and political implications, mean that that agreement is now in a precarious position. I hope that the UK Government and the Northern Ireland Executive are working together to find a way forward to avoid a political and financial crisis.

Greater devolution within England is also necessary. We strongly support the devolution of much greater powers and control of budgets to the city regions and counties, where it is clear that those cities and counties have the capacity to take on the devolved power and budgets. But it is for those cities and counties to determine for themselves the appropriate leadership arrangements. Whether a mayor is best should be for them to decide, not central government.

This is not a constitutional programme with the best interests of the country at heart. It is a programme aimed at short-term political advantage. It promotes division and two nations. It threatens the union, the reach of our voting system, the rights of our citizens and the strength of our nation as a defender of human rights in the world.

--- Later in debate ---

[Lord Falconer of Thoroton]

Indeed, if what the noble and learned Lord says is correct, I unreservedly withdraw the allegation, and apologise.