Justice and Security Bill [HL]

Lord Lea of Crondall Excerpts

Monday 9th July 2012 Lords Chamber

As I said at the beginning, I have listened very carefully and I have some sympathy with what the noble Lord is proposing, but in my experience, in terms of the Intelligence and Security Committee it would be a mistake.

[Lord Lea of Crondall]

My Lords, I wonder whether we are missing a major point in all this, which is why my instinct is strongly to support my noble friend Lord Campbell-Savours. I refer to public confidence in the work of MI5 and MI6 and what we know about them.

There is a sort of closed shop mentality at the moment, as I see it, what some people call the “secret state”. People have the right to write their books and put titles on them, but when I want to find out how many of the e-mails that I write could possibly be hacked by one of the agencies, there is no way of knowing, obviously. But should there be some way of knowing the categories of e-mails that can be hacked? Is it part of national defence and security that we do not know an awful lot about what is going on? This has a tangential bearing on whether it is a parliamentary committee or whether it is the committee that we have at the moment. Incidentally, as I understand it—I will be corrected if I am wrong—there is no Labour Member of the Lords on this committee at present. Is that correct?

[Lord Butler of Brockwell]

There are Labour members, but not Labour Members of the House of Lords. There are two Members from the Lords, my noble friend and a Cross-Bencher, but there are Labour Members from the House of Commons.

--- Later in debate ---

[Lord Lea of Crondall]

The noble Lord, Lord Butler, is correcting something that I did not say. I said Labour Members of the Lords. There are no Labour Members of the Lords on this committee.

The information flow should be the subject of a much more substantive statement by the Minister when he responds than is normal on these occasions. I was interested in the remark made as an aside by my noble friend Lord Campbell-Savours on the fact that this question en principe has never been discussed in the past 14 years. I rather suspect that if we were setting up a constitution for a new member of the United Nations, we would be a little worried if that were the case. Although I am not saying that this amendment is the right thing, I will support it because I believe that it opens up a very important question. We know that the noble Lord, Lord King of Bridgwater, is a typical, reputable, outstanding and well respected member of the circle in which this sort of activity takes place. It used to be called the Establishment. I do not know whether that was a compliment or an insult; it was half way between. However, we do not need to be so scared of the idea that we are always playing into the hands of enemies of the country, whether it is al-Qaeda or anybody else, if we have a more adult approach to these matters. Political balance is needed by those who have been involved in the agencies—I see a couple on the Front Bench—where people find it perhaps difficult to understand the world where other people come from. It would be much better if the normal rules of political balance and openness were observed.

Finally, as regards the remark of the previous speaker, we had the example last week of members of the Treasury Select Committee not covering themselves in glory when asking questions about LIBOR because they did not really understand what they were talking about. I can see the objection that ordinary souls on a committee like this would be of no use because they would not know what they were talking about. Obviously, by definition, they would not know what they were talking about as they would not have been serving in one of the agencies or been on this intelligence committee for a number of years or been Secretary of State for Defence or whatever. I wonder whether that is going to inspire public confidence.

[Lord Deben]

My Lords, I intervene as somebody who has not been a member of this committee. I have now managed to get papers from the noble Lord who sits next to me. Unusually I find myself wishing to ask my noble friend to listen carefully to the words of the noble Lord, Lord Campbell-Savours, for the following reason. The issue is the confidence of the public in this committee. I have a difficulty of inventing a committee of a particular kind in order to meet that confidence requirement because it seems to start from a grave disadvantage of looking as if you have an artefact here. People complain about the fact that nobody seems to know too much about what goes on, so let us invent something that seems to meet their requirements. That is what it will look like if we make the alterations suggested by the noble Lord, Lord Butler, although I am entirely in favour of them.

The advantage of a Select Committee is primarily that it is something that people know and it has, over the years, established a position, as a concept, of independence. It clearly is not the creature of the Prime Minister or of the political parties. It is manifestly, and increasingly, with the election of its chairman, an independent form of investigation. Therefore, prima facie, it would be much more sensible to use that mechanism and to make such changes as are necessary for the particularities of such a Select Committee so that at least when it is referred to as a Select Committee people immediately catch on—in so far as they know about anything in Parliament—that this is an independent, non-party parliamentary committee that is treated by its members as a place where they work in the national interest and not in their party-political interest.

I think there is an important advantage in using the Select Committee structure. My worry is that my noble friend will be led by all sorts of officials—I have been in this position and I hope that the noble Lord, Lord Butler, will excuse me when I try to describe it—of the “better not Minister”, “it would be safer to do something slightly different”, “you never know what might happen” kind. That attitude is endemic in the giving of advice because advisers would prefer not to have given advice that turned out not to be quite right, so it is better to give the most negative advice.

I hope my noble friend the Minister will be prepared to say that we can create a construct that is a Select Committee and sits naturally in the parliamentary structure but is specifically designed to deal with security matters and will be what everyone outside will recognise is different from a Select Committee on the environment or a Select Committee concerned with trade and industry. Is it not better to use the strength of the Select Committee process and procedure and, above all, of public understanding rather than to try to create something special?

I very much respect my noble friend Lord Lothian and I understand his fear that the Select Committee will be expected to have public hearings. I agree that a public hearing in which every answer is, “I am afraid I can’t answer that” will be an embarrassment and not helpful, but it seems to me not impossible that, before any such hearings are started, this Select Committee should publicly be said to be a Select Committee that does not have public hearings, except in unusual circumstances. You start off as you mean to go on. No one would misunderstand that. Indeed, I think if it were stated like that, it would be much easier for the committee to proceed, and I would like to see it. But to say that because it is different from other Select Committees in that sense, it ought to be set up in an entirely different way is a mistake because it is more similar to a Select Committee in every other manner. What people want to know is that it is independent and all-party, that its members take things seriously as parliamentarians and that its secrecy is only the secrecy that is necessary because of the nature of the things that it discusses.

I hope my noble friend will not be led astray by the siren voices of those for whom this is a step too far. We have been a long time discussing this issue. The noble Lord, Lord Campbell-Savours, reminded us of how long and there was time before even he came on the scene in which this discussion was taking place. I hope we will not step back now. We ought to do the thing properly and set down the terms of the Select Committee in advance.

Crime and Courts Bill [HL]

Lord Lea of Crondall Excerpts

Monday 28th May 2012 Lords Chamber

[Lord Lloyd of Berwick]

My Lords, my first impression on seeing this year’s helping from the Home Office is one of great relief because it is, at least by recent comparison, relatively short and uncontroversial. There is also relief because it contains only one new offence: driving with drugs in the bloodstream, whether or not your driving is impaired by the presence of drugs. That brings drugs into line with existing law on alcohol and is to be thoroughly welcomed.

I also welcome Clause 17, in so far as it favours the creation of a new, unified county court. Surely, the explanation for the name rests in the jurisdiction, not in the fact that the court will be based in individual counties. I hope that we will not lose the name “county court”, despite the unification of all county courts.

I was less certain, I am bound to say, about the family court, for a reason which I shall explain, but having listened to the noble and learned Baroness, Lady Butler-Sloss, I find that I am completely convinced by her argument. Let me just explain the danger I foresee. That is that the unified family court may prove to be a step towards combining the High Court and the county court generally—in other words, a unified civil court. That has long been favoured in Whitehall, but it has long been resisted in the Strand—at least by some of us. Why? The reason is that it may tend eventually to diminish the role of the High Court judge. In my view, the High Court judge is the key to the whole judicial structure, and if he should come to be regarded as just another judge, as it were, just another rung on the judicial ladder—this is certainly how it looks from the list on page 115 of the Bill—the structure would indeed be threatened. It would be a step towards a career judiciary such as they have in France, which I would greatly regret. In the end, in my view, it would affect the quality of our highest judiciary. When the noble Lord replies, I hope that he will at least reassure me that there is no intention of creating a unified civil court, at the moment at any rate.

I come to Clause 18 on page 16 and Part 1 of Schedule 12 on page 167. Section 23(2) of the Constitutional Reform Act 2005 provides as follows:

“The Court consists of 12 judges appointed by Her Majesty”.

Nothing could be clearer than that. There is then a provision in subsection (3) for that number to be increased but not reduced. Now we are told that the court is to consist of,

“the persons appointed as its judges”.

If I may say so, that seems to me a masterly statement of the obvious. What else could the court consist of but its judges? As to the number of such judges, we are told that it is not to exceed 12 full-time equivalent judges. For the first time in our history we are going to have part-time judges sitting in our most senior court. There would seem to be no limit to the number of part-time judges who might be so appointed. We could have 24 half-time judges, or a mixture of full-time judges and part-time judges. I am bound to say that this is a development I would deeply regret. I wonder whether the interest in flexible-time working and so on justifies such a vital change in our most senior court.

Moreover, why is there a sudden need to provide for an overall reduction in the number of judges of the Supreme Court? Back in 2005 we chose the number 12 because that was the number of serving Law Lords. Is the suggestion that the current judges of the Supreme Court do not have enough to do and therefore the number should be reduced to 11 or 10? Surely anybody who looks at, or even glances at, the weekly law reports can see that they have more than enough to do—indeed, they are too busy rather than not busy enough—yet there is the suggestion that their number might be reduced.

Is the explanation, perhaps, that we do not have enough money to pay for 12 judges? That seems even more inconceivable, yet no other reason is given in the Explanatory Notes for the need now to reduce the number. Indeed, the extraordinary provision in Schedule 12 says that there is a problem about having “exactly 12” Supreme Court judges, almost as if we could afford 11 and a half judges but not 12. I am bewildered by the whole of this part of the Bill, and I hope that we will have an explanation and that it will be fully explored in Committee.

I turn to diversity, which is covered by Part 2 of Schedule 12. How we can get greater diversity among our judges, particularly in our higher courts, has been a problem for as long as I can remember. My recollection is that when we considered these matters in 2004 in the Select Committee, we spent more time on diversity than on any other single issue. Everybody agrees that we should have more diversity and that selection should be on merit. It is very easy to say that. Then along comes Sir Colin Campbell and others who, I remember, argued in 2004 that merit does not mean what one thinks—it is just a threshold. Once one passes the threshold you can take all these other matters into account, including diversity. One finds exactly the same argument advanced before the Constitution Committee by Professor Cheryl Thomas, at paragraph 95 of its report. In 2004, we rejected that argument out of hand. That is why one finds “solely on merit” in Section 63(2) of the existing Act, which entirely meets that argument whenever it is to be advanced. I find myself therefore entirely in agreement with paragraph 97 of the Constitution Committee report—I am glad that it said what is in that paragraph—which also said that “solely” should mean what it says.

However, the Government now come along with the bright idea that two candidates could be exactly equal in merit. What then? Does that give us a kind of loophole in which we can aim for diversity? I remember the noble Baroness, Lady Ashton, being asked in 2005 what would happen if two candidates for the High Court were of exactly equal merit. She laughed and simply brushed it aside, saying that if ever that time were to come at least she would not have to decide it. In truth, it is not a problem at all because, at any rate for the higher courts, it is not possible to imagine that two candidates in real life will be exactly equal. I therefore find myself in entire agreement with the views expressed in the Constitution Committee by the noble Baroness, Lady Neuberger, and by the noble and learned Lords, Lord Phillips and Lord Judge. It is simply not a way through; indeed, it is slightly worse than that. Suppose that one was a black judge who had been appointed to the Supreme Court—

[Lord Lea of Crondall]

I have been following the noble and learned Lord most carefully and apologise for intruding on this discussion among the experts in the field. I find the logic of what he has just said impeccable but is he happy that 80% of judges went to public schools, which represent 7% of the population of this country? He can fob it off on to somebody else but is he happy about that?

[Lord Lloyd of Berwick]

Of course I am not happy. I am as unhappy as anybody in this Chamber at the existing situation but we are trying to find a solution. All I can say to the noble Lord is that things are slowly getting better. We have put in provisions saying that it should be the duty of the appointments commission to search out, by widening the pool in which it looks, to find candidates who would be the best. I entirely agree with the noble Lord but I fear it is simply a question of time until we get a reasonable number of black people and white ladies among the judges. What worries me is that the Government are finding some way of trying to satisfy public opinion by saying that, in these circumstances, they can choose to make the Supreme Court more diverse. In fact, it is not going to happen. It is simply wishing away the problem as if it did not exist. If I had to describe the answer which they have given, I would have to say that I find it thoroughly trite.

Visas: Domestic Workers

Lord Lea of Crondall Excerpts

Tuesday 18th October 2011 Lords Chamber

[Lord Henley]

My Lords, I accept what the noble Lord has to say about domestic workers being particularly open to abuse. That is why we want to get the right balance. However, I think the noble Lord would also agree that we need an immigration system that is fairer and more honest and commands public confidence. We want to get the right balance; that is what is behind the consultation and that is what we will be looking at in the responses.

[Lord Lea of Crondall]

My Lords, would the Minister say a little more about the complaints procedure whereby, when many of these workers who work under slave labour conditions—and that is the word that has to be used when you look at some of the horrendous things that go on—try to make a complaint, they can lose their status and so on. Could the Minister say a little more about how people can be safeguarded if they want to make a complaint?

[Lord Henley]

My Lords, I cannot say that at this stage because that is the point behind the consultation. We want to consider all the responses to that consultation. But what I tried to make clear earlier, and what I will repeat to the noble Lord, is that we want to make sure that we get the right balance by providing the appropriate safeguards while making sure that we have the right safeguards against unnecessary immigration.